Matheson and King

FAMILY COURT OF AUSTRALIA

MATHESON & KING

[2007] FamCA 1448

FAMILY LAW – CHILDREN – competing live with applications – abuse allegations – standard of proof - a constellation of factors may comprise an unacceptable risk even though none or only some are proved to the civil standard – where child has lived with his father most of his life – father suffers paranoid disorder – father unwilling to facilitate relationship between child and his mother – mother suffers mood disorder – mother more stable than father – series of orders aimed at enhancing parties parenting capacity and child’s self protection - mother likely to comply with orders – father highly unlikely to comply with orders – child to live with mother – father’s time with child initially supervised with gradual lifting of restrictions and increasing time

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG, 61C(1), 61B, 61DA(2), 61DA, 61DB, 64A, 65AA, 65DAA, 69T(3), Div 12A, Pt VII
Evidence Act 1994 (Cth) ss140, 140(2)(c)

Goode and Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
A v A (1998) FLC 92-800
R v R Children’s Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
C-W & W [2006] FamCA 387
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Johnson and Page (2007) 93-344
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT:

MS MATHESON

RESPONDENT:

MR KING

FILE NUMBER:

(P)NCF

573

2006

DATE DELIVERED:

14 December 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

13, 14, 15, 16, 19 & 20 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cotter-Moroz

SOLICITOR FOR THE APPLICANT:

Mr G Guthrie

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

Mr M O’Callaghan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Whelan

Orders

That all prior parenting orders are discharged.
That “the child” … born in January 2001 shall live with the Mother.
That the Mother shall have sole parental responsibility for the child.
That the Mother shall, within 7 days of so doing, give the Father written notice of all decisions she makes in relation to:
(a)       major medical decisions for the child;
(b)       where the child attends school; and
(c)       continuing extra-curricular activities in which the child is enrolled.
That the Father shall spend time with the child as follows:
(a) For 24 months from the date of these orders supervised at a contact service:
(i)In the event that the Mother and child continue to reside northern New South Wales, for two hours each alternate weekend at Interrelate Family Centre in northern New South Wales.
(ii)In the event that the Mother and child move to the Sunshine Coast, for two hours each alternate weekend at the Contact Centre at the Sunshine Coast or such other place agreed between the parties.
(iii)In the event the applicable contact service is unable to supervise the Father’s visits as often as provided in these orders, the visits shall be as frequent as the contact service can provide.
(iv)In the event the contact services identified above are unable to supervise the Father’s visits with the child, the Director of Family Dispute Services in this Registry shall nominate an alternate contact service which will become the place where the Father spends time with the child.
(b)Commencing 1 January 2010, Order 5 (a) above is discharged. Thereafter the Father shall spend time with the child from 9.00 am until 2.00 pm each alternate Saturday for eight occasions.
(c)Thereafter from 9.00 am until 4.00 pm each alternate Saturday for eight occasions.
(d)Thereafter from 9.00 am each alternate Saturday until 1.00 pm Sunday for eight occasions.
(e)Thereafter from 5.00 pm each alternate Friday until 5.00 pm Sunday each alternate weekend.
(f)Upon Order 5(e) becoming operative, for one half of each school holiday period as agreed in writing or failing agreement, for the first half in years ending in an odd number and the second half in years ending in an even number. For the purpose of this order the weeks shall commence or be calculated from the first Saturday of the gazetted school holidays.
(g)Upon Order 5(e) becoming operative for two one week periods in the Christmas school holidays as agreed in writing or failing agreement for the first and fourth weeks in years ending in an even number and the for the second and fourth weeks in years ending in an odd number. For the purpose of this order the weeks shall commence or be calculated from the first Saturday of the gazetted school holidays.
(h)At such other times as may be agreed in writing.
For the purpose of implementing Orders 5 (b) – (e) above changeovers shall take place at the same Contact Service where the Father and child have, pursuant to Order 5(a) been spending time. In the event the Contact Service is unavailable changeover shall be at a public place in reasonable proximity to the Contact Service nominated by the Mother.
For the purpose of implementing Orders 5 (f) – (g) the Father may elect to have the child travel by aeroplane. The Father must give the Mother no less than 21 days written notice of his election and no less than 7 days prior to the commencement of the school holidays provide her with a copy of the child’s ticket. The person whose care the child is leaving shall deliver the child to the airport no later than one hour prior to the scheduled flight. If the Father proposes that the child travels back to the Mother other than by aeroplane, he shall return the child to her at the changeover venue referred to in Order 6.
Unless the Mother has given the Father written permission to do so, the Father is restrained from approaching the child, his home or school unless Order 5 above entitles him to do so.
In the event the Father has not already done so, within 14 days he shall attend upon a medical practitioner and obtain a referral to a psychiatrist at the local Area Mental Health Service in an area nearby to his residence or a psychiatrist of his own choosing. The Father shall attend the first available appointment and thereafter promptly attend all recommended appointments and comply with all reasonable treatment directions, including taking prescribed medications.
In the event the Mother has not already done so, within 14 days she shall attend upon a medical practitioner and obtain a referral for the local Area Mental Health Service in an area nearby to her residence or a psychiatrist of her own choosing. The Mother shall attend the first available appointment and thereafter promptly attend all recommended appointments and comply with all reasonable treatment directions, including taking prescribed medications.
Within 7 days the Mother shall do all things required to re-establish counselling for the child with Ms A. In this regard, the Mother shall ensure that the child promptly attends upon Ms A and continues to attend until Ms A recommends that it is not longer necessary that he does so.
Unless Ms A addresses protective behaviours with the child in her counselling, the mother shall obtain from her a referral to a child protective behaviours program or counsellor and she shall thereafter ensure that he promptly attends and completes such program or counselling.
In the event the Mother leaves the northern New South Wales region she shall obtain a referral from Ms A or the Manager of Child Dispute Services of the Family Court at Newcastle to a local Area Mental Health Service or counsellor so as to establish a therapeutic relationship for the child with a counsellor and thereafter attend for so long as the counsellor says it is necessary.
That the parties shall give any counsellor or medical practitioner they or the child attends a copy of Dr P’s report and my judgment.
That both parties are to advise each other within 7 days of any change to their:
(a) residential address; and
(b) contact telephone numbers.
That each party shall be at liberty to telephone the child whilst he is in the other person’s care each Wednesday evening between 6.00 pm and 7.00 pm.
In the event that the child requires medical treatment whilst he is in the Father’s care he shall advise the Mother in writing of:
(a)       the name of the treatment provider;
(b)       the nature of the treatment provided;
(c)       diagnosis;
(d)       prognosis; and
(e)       future treatment required.
That both parties shall be at liberty to contact the child’s school and obtain all details from them including copies of school reports, school photographs, newsletters and any other material distributed to parents of students at the school.
That both parties shall be at liberty to contact any person who has provided therapeutic or medical treatment to the child and obtain any information from those persons.
That the parties are restrained from denigrating the other or any member of their household or family in the presence of the child and shall use their best endeavours to prevent any other person from denigrating the other party or any member of their household or family in the child’s presence.
That the parties are restrained from questioning the child about abuse issues concerning the child’s treatment by the other parent. In the event the child discloses abuse or other mistreatment received in the other parties care, the parent shall notify the child’s counsellor and obtain the counsellor’s advice as to the appropriate avenue for further investigation of the child’s disclosure.
The parties are each restrained from using cannabis while the child is in their care.
For 12 months from the date of these orders, pursuant to s 65L of the Family Law Act 1975 the Manager, Child Dispute Services of the Family Court at Newcastle (or her nominee) shall supervise compliance with them.
That the Registry Manager shall return any documents produced on subpoena.
That any outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Matheson & King is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCF573 of 2006

MS MATHESON

Applicant

And

MR KING

Respondent

REASONS FOR JUDGMENT

This is an application by the mother to have the parties’ six years old son live with her. The child lives with his father, and has done since before his first birthday. The father wants the child to continue living with him. The parties agree that theirs has been a dysfunctional relationship and that their ability to communicate on matters relating to their son, or at all, is compromised. Each says the other suffers from a mental illness and that the child is unsafe in the other parent’s care.
In late May 2006, the mother learned that the father was accused of sexually assaulting a young girl. She returned the child to the father but when he came to her for the July 2006 school holidays, the mother sought legal advice and the assistance of the Department of Community Services (“DoCS”) regarding her fears about the father’s care of their son. The mother informed the father she would not return the child to him at the end of the holidays. Without notice to her, the father obtained a recovery order and on 26 July 2006 Police retrieved the child and delivered him to his father.
The father alleges that upon the child’s return, as well as signs that he had been physically abused, there is evidence that he had been sexually abused whilst with his mother. A couple of days later, the father says that the child told him that the mother had sexually assaulted him. The mother denies the father’s sexual assault allegations.
In April 2007, the mother says the child told her that the father had sexually abused him. The father denies the mother’s sexual assault allegations.
Various child protection agencies and medical practitioners have investigated the parties’ respective child abuse allegations. None of the agencies or medical practitioners involved with the child or the investigation of the various child sexual abuse allegations concludes that it is likely anyone sexually abused him.
In breach of orders which required the father to continue the child’s enrolment at E School, not change his place of residence (northern New South Wales), continue the child’s counselling and facilitate regular contact between him and his mother, the father recently moved to the centre coast of New South Wales. He says his and the child’s lives were in danger if they remained at E.
Because the parties each say the other has significant parenting deficits the court appointed an Independent Children’s Lawyer to represent the child. Upon the Independent Children’s Lawyer’s application Dr P was appointed court expert. Dr P, who is a Child and Family Psychiatrist, concluded that each of the parties has mental ill health difficulties and requires ongoing psychiatric care. He explained that there are many matters which cause him great discomfort about making recommendations for the child’s future care. In what appeared to be a finely balanced decision Dr P recommended that the child remains with his father and basically spends as much time with his mother as geographic considerations permit. At the end of the hearing the Independent Children’s Lawyer submitted a minute of order[1] which encapsulates Dr P’s recommendations and which he invited the Court to make. To a considerable extent Dr P relied upon information, particularly relating to the mothers behaviour with her former husband and their children which was not subsequently established in this hearing. Unfortunately his time with the father was brief and he was denied the opportunity to fully appreciate the father’s paranoid disorder. Although aspects of Dr P’s investigations and opinion withstand scrutiny and have been of assistance I am not satisfied that his knowledge of the parties and child’s circumstances is sufficient to place weight upon his opinion regarding the ultimate issue.
[1] Exhibit “R”

The issues

This hearing has been conducted pursuant to Div 12A of the Family Law Act 1975. I was not asked and did not make a s 69T(3) ruling.
At the final hearing the primary issues for determination are:
·The child’s views.
·Whether the mother has abused or poses an unacceptable risk to the child of physical or sexual abuse.
·Whether the father has abused or poses an unacceptable risk to the child of sexual abuse.
·The nature and extent of family violence and the risk that the child may in the future be exposed to it.
·Whether the father is able to provide the child with a reasonably stable education and home life.
·Whether the father is willing and able to promote the child’s relationship with his mother.
·If the father is unable or unwilling to promote the child’s relationship with his mother, whether he will nonetheless obey orders which enable the child to spend time with her.
·Whether the mother is willing and able to facilitate and promote the child’s relationship with his father.
·If the mother is unable or unwilling to promote the child’s relationship with his father, whether she will nonetheless obey orders which enable the child to spend time with him.
·Whether the mother is able to provide the child with a reasonably stable education and home life.
·The extent to which the parties require professional supports so as to supplement their ability to care for the child.
·The extent to which the parties are likely to accept professional support in their child’s care.
It is agreed that whichever of the parties has the child’s future care shall also have sole parental responsibility. Because the parties will live about 13 hours driving time apart it is agreed that an equal time order is inappropriate and that alternate weekend visits with the parent with whom the child is not predominately living is impractical.

Chronology of relevant events

In April 1951 the father was born. He is thus 56 years old.
The mother was born in October 1962. The mother is 45 years old.
The father says that in 1981 he was abducted by aliens as a consequence of which he says he suffers continuing physical and psychological difficulties.
In April 1982 the mother’s eldest daughter was born.
The mother married Mr R in October 1983.
The mother’s eldest child to Mr R, named T, was born in March 1986.
The mother’s second child to Mr R, K, was born in June 1988.
In December 1989 the mother’s third child to Mr R, F, was born.
The mother and Mr R separated on 15 December 1996. At separation all three children remained with the mother. At some stage, K commenced living with his father and when the parties met, the mother resided with T and F.
The parties met during 2000 when they lived on neighbouring properties at S. They did not cohabit.
On Christmas day 2000 at the mother’s home, a neighbour’s dog attacked the father’s dog and tried to attack F. This resulted in a terrifying altercation between the father and the Bull Mastiff, in which the father beat the attacking dog between 20 and 40 times with a baseball bat. The parties and F were highly distressed by the incident. The following day the neighbour threatened the parties with a shotgun. Within a few days the mother, who was about 8 months pregnant with the child subject of this judgment, decided she could not safely remain at S and temporarily moved to E. She arranged with her former husband that their children would go into his care.
In January 2001 the child was born. Upon her discharge from hospital the mother and baby stayed with the mother’s sister.
In early March 2001 the mother and the child moved into an on-site cabin at a Caravan Park. T and F returned to her. Within one week of the father learning that the mother had moved into her own place, the father again started visiting frequently with the mother feeling almost under siege from his visits and unrelenting criticism of her parenting. The mother’s older children remained with her until in late March 2001 she and the child returned to her home at S. T and F returned to their father. Although the mother planned to stay only a short time at S, her limited finances made it difficult for her to move into a rented property. At this stage the mother’s income was solely provided by Centrelink. The child lived with the mother and had daily contact with his father. With the mother’s return to S the parties were once again neighbours and as she must have anticipated tensions between them escalated. It is from this point that a real struggle between the parties commences over the child’s care. Basically both parties wanted him in their primary care. The father was at the mother’s home every day and his litany of complaints about the mother’s parenting continued. Quite quickly the father’s behaviour started to wear the mother down.
In July 2001, without the mother’s consent, the father started removing the child from the mother’s home, often keeping him overnight at his caravan. By this time she was emotionally worn out and increasingly felt powerless to resist him.
By September 2001 the father had so undermined the mother’s confidence that she felt she had to get away from S. The mother left her home at S and for one month stayed with a friend. She asked the father if he was agreeable to her taking the child with him, which suggestion he refused. By this stage the mother was desperate to find some space from the father and felt she needed to attend AA meetings, not because she was abusing alcohol but to find reassurance that she was “sane”. The child remained with the father who at some stage reported the mother as a “Missing Person” to police. While the mother was at her friend’s house she attended a number of AA meetings and curiously, given his report to police, the father visited her.

In mid October 2001 the mother returned to her home at S. Once again the father spent most of the day with the child at the mother’s home.
On 19 October 2001 the father attended M Police Station. He told Police that three days earlier, while the mother was driving the child she swerved onto the wrong side of the road nearly colliding with an oncoming vehicle. The father explained that the mother said she would “Take the child with her” and said that he believed the mother is a danger to herself and the child. As the child was with the father Police took no further action. The mother denies trying to harm herself or the child.
On 4 November 2001, the mother took the child to a women’s refuge, where they remained until 2 December 2001. While the mother and the child were at the refuge, the father left S and moved into a rented caravan at C. The father was quite quickly in conflict with other residents at the caravan park who made a number of complaints to Police about his behaviour.
On 2 December 2001 the mother left the refuge and, by prior arrangement, was collected by the father. That same day, at the father’s request, the mother signed a document[2] which says that “[the child] would hereafter live with the father”. The mother and the child stayed with the father for a couple of days at C. Within a few days, the mother and child moved into a rented apartment at C, about 400 metres from the father’s caravan. The parties saw each other daily and occasionally, the father kept the child overnight.
[2] Exhibit “A”
The mother says that in late December 2001 or early January 2002 the father raped her. The father agrees that there was a violent altercation but denies raping the mother. Following this incident the mother says she felt shattered and was unable to challenge the father’s determination to have the child in his primary care. Since then the child has lived with the father. After a two weeks period during which the mother did not see the child contact resumed with the father taking the child to the mother’s unit daily.
In February 2002 the mother left her rented unit and moved into a caravan she rented at the C caravan park. This is the same caravan park where the father and the child were living. Throughout the period the parties and child were together daily and it appears that the child moved back and forth between them.
Following a number of complaints by caravan park residents concerning the father the Police file reports on 21 February 2002 “[The father] has become known to Police since his arrival in [C] regarding complaints received from women in the village about his aggressive and threatening nature”. The complainants had no connection to the mother.
After the father told her that he was contemplating moving to Western Australia with the child, the mother sought legal advice. Eventually she secured a grant of legal aid to fund a residence application.
Following a verbal altercation with a neighbour the father approached a Police Station on 7 March 2002 seeking an AVO. After investigation of the father’s complaint Police declined to take action and concluded that “the report by [the father] is not entirely true.”
On 22 March 2002 the mother applied for an Apprehended Violence Order (AVO) against the father. She says he assaulted her, an allegation which the father denies.
On 26 March 2002, the father applied for an AVO against the mother.
On 27 March 2002, the mother withdrew her AVO application.
On 3 April 2002 the mother approached the Community Mental Health Service[3] expressing concerns about her ability to deal with the father and seeking assistance with depression and anxiety. After a number of attendances, in early May 2002 the mother was advised that there was no reason for her to continue attending.
[3] Exhibit “F”
On 14 April 2002, the father abandoned his AVO application.
At the same time as she applied for her AVO application, the mother applied for orders that the child lives with her. The parties attended mediation in early May 2002 and on the first court date, entered into consent orders. The orders made on 14 May 2002 are set out below:
1.The child of the relationship … born … October 2001 shall reside with the father.
2.          The mother shall have reasonable contact including:
(a)      on each weekend (between 4.00 pm on Friday afternoon and                 4.00 pm on Sunday afternoon) and;
(b)      for one week (4.00 pm Sunday to 4.00 pm Friday each   month, the first being – no contact as per (a) above on   adjoining weekends).
3.        The location for drop off and pick up will be as agreed between            the parties but in the absence of agreement shall be at […] Police Station.
4.        The Court notes the undertakings given as follows:
(a)      the father undertakes to provide a fixed and stable home   for the child;
  (b)      the mother undertakes to attend all such counselling and   treatment for her physical and mental health as is   reasonably required;
  (c)      the parties undertake to attend and complete their   mediation of relevant matters.

On 31 May 2002 the mother attended upon Dr Z who provisionally diagnosed her as suffering from Schizophrenia[4]. Dr Z prescribed Zyprexa, a mood stabilizer, which the mother took on and off for about six months.
[4] Exhibit “L”
The father complied with the contact orders until August 2002.
In August 2002, the mother moved into her former husband’s home at B Street, E. The father refused to continue changeovers at the Police Station and until he stopped contact, he delivered the child to the mother at her former husband’s home. In spite of the mother’s protestations the father remained throughout her visits with the child.
In early September 2002 the father stopped delivering the child for contact. The mother continued to telephone the father seeking the contact to which she was entitled, however he refused.
In late October 2002, the mother obtained a grant of legal aid to enforce her contact orders. Using the same solicitor as for her earlier residence application, the mother filed her enforcement application in the Local Court. On 10 December 2002 which was the first court date, by consent, the parties varied the May 2002 orders. These later orders are set out below:
1.The child of the relationship […] born […] October 2001 shall reside with the father.
2.The mother shall have reasonable contact including:
a.Contact for four days per month subject to [the mother’s child T] being present and with additional contact by prior arrangement. The first four day period shall be the last four days of December 2002 and the parties agree that the child will also have contact with the mother for all of Christmas day as a “prior arrangement” referred to above.
b.The respondent father shall deliver and pick up the child to and from contact.
3.The Court notes the undertakings of the parties as follows:
a.The father undertakes to provide a fixed and stable home for the child;
b.The mother undertakes to attend all such counselling and treatment for her physical and mental health as is reasonably required.
In effect the father insisted upon T, who was then 14 years old, supervising his mother while the child was in her care. The notion of a 14 year old child supervising a baby and its parent suggests that the magnitude of the perceived risk to the baby was low or that supervision was unnecessary.
Following the 10 December 2002 orders, the mother, her former husband Mr R and their three children moved to E. Mr R and the children lived upstairs and the mother lived downstairs. By this time, the father had returned to his property at S. Although the father made the child available to the mother in accordance with the contact orders, he stayed with Mr R upstairs, throughout the visit. For a large part of the child’s time with the mother, the father insisted on being present.
The mother stopped seeing Dr Z on 20 December 2002.
In about May 2003, the mother returned to her property at S. Most days the father brought the child to the mother’s home and she cared for him. On those days when the father did not bring the child to her, the mother visited the child at the father’s home.
In November 2003 the mother rented a flat in a nearby town. In the three months the mother lived there, she spent time with the child in accordance with the contact orders. When her landlord sold her unit, the mother returned to S. Upon her return to S, the parties resumed the pattern of the child spending most days, with the father, at the mother’s home.
On 31 March 2004 the mother re-established contact with Dr Z who she consulted twice before again stopping.
On 2 June 2004 the parties drove into town to do their shopping. After lunching there, on their way home they argued about family and relationship issues. The father stopped the car and told the mother to get out, which she did. The father then drove to the Police Station so as to report the incident. He alleged that the mother called him ‘fucken [sic] cunt” and a number of other obscenities. The father explained the mother had not threatened him and that he was not afraid of her. About 30 minutes later Police saw the parties driving together, with the child in the back, through the town. Police pulled them over and were informed that the parties had resolved their differences. They observed that the mother “showed no signs of mental illness and spoke positively at this stage.” Police informed DoCS of the incident.
On 12 July 2004 the father attended the Police Station and reported that in the preceding six weeks his vehicle had been broken into on a number of occasions. The father initially accused his neighbours but then, in a long and emotional interview, changed his story. During the interview he is reported to have suffered mood swings, cried and been overtly paranoid. Having departed the station the father returned with photographs of UFO’s. Police considered the father’s complaints doubtful and reported him to Community Health. They did this because Police believed; based upon the father’s interview, that it was likely he was under their care.
On 23 July 2004 the father attended the Police Station seeking an AVO against the mother. The father gave a history of verbal abuse, threats and harassment from the mother, including her mental ill health as reasons why he sought an AVO. The father did not allege that the mother had been physically aggressive towards him or the child. Police noted that the parties were living adjacent to each other and that previously Police had been called to a number of incidents involving them. To Police it appeared likely that both parties suffered from a mental illness, although on this occasion the father appeared stable. As well as making application as the father wished, the NSW police records show: “A DoCS notification will be sent in relation to the suitability of the victim to be the full time carer of his son due to his odd behaviour whilst reporting this matter at […] Police Station.” After a number of adjournments, on 21 January 2005 the parties entered into mutual AVO’s against each other.
In about August 2004, the mother rented a unit at C Street, E. F returned to live with her. Once again the father stopped the mother’s contact with the child which resumed after the mother said she intended to bring enforcement proceedings. Although contact resumed, the father insisted on remaining throughout.
On 7 September 2004, Ms G, who was an acquaintance the father knew from his local church, contacted M Police. Essentially Ms G, who from time to time babysat the child, told police she was concerned that the father, whose surname she did not know, appeared to be mentally unstable and that the child was dirty and his speech was delayed. Police advised Ms G to contact DoCS.
During 2005 the father underwent an exorcism at a church conducted by a “priest” who he now believes was a heroin addict. He says that the mother is “demonically possessed” and it was his desire to expel what he perceives as her evil influence. The father says this was unsuccessful and overall a bad experience.
Some time during January 2005 the father started to move from S to a property he purchased in north-west New South Wales. Between January 2005 and the end of June 2005, the child had nine visits with the mother. These lasted from five to eleven days at a time totalling at least 70 days. The father was otherwise engaged and placing the child with the mother freed him up to attend to other matters. The child was with his mother from 24-28 January 2005 and then from 16 or 17 February 2005 until 20 February 2005, when the father collected the child a day early. The father cut this visit short, because, as he told Police[5] he was concerned about the mother’s mental health and the child’s welfare. When the father arrived a day early to take the child, the mother informed him that unless the child was returned to her within two hours she would inform Police that the father had breached the AVO. The father took pre-emptive action and attended E Police station so that a note of his actions could be made. He admitted breaching the AVO. Police advised him to return to his home at S, which he did. Four days later the father returned the child to the mother where the child remained, unsupervised from 24 February 2005 until 6 March 2005. This pattern continued with the mother receiving little advance notice of the child’s arrival or the father removing him. The amount of time the child spent with his mother was far greater than the father was required to give. This is inconsistent with him holding any fears for the child while in the mother’s unsupervised care. At this time the father had no fears for the child while in his mother’s care.
[5] Exhibit “Q”
On 5 May 2005 the father left his S property for one week and went to E. When he returned on 12 May 2005 he discovered that his vehicle’s windscreen and four side windows were smashed. Two days later at the father’s request Police telephoned two neighbours. The father claimed that the mother’s tenant at S was a probable suspect. Also that another resident of the street may also have been involved. These people denied any involvement and told Police that each has previously experienced problems with the father, who they believed suffered from a psychiatric illness. Police took no further action.
By June 2005 the father had established himself at B. Having done so he stopped sending the child to the mother. There was nothing in the mother’s recent behaviour which warranted his changed stance from the extensive contact given before his vehicle was ready for occupation.
In September 2005 the mother spent one week at B. The child was with her during the day and spent his evenings with the father. At the mother’s instigation the parties enrolled the child at B pre-school. The child attended B pre-school for between two and three weeks, at which point he contracted chicken pox. The father did not return the child to pre-school.
The mother visited the child at the father’s B home on 24 October 2005. While she was there the father telephoned Police because he thought the mother was upset and irrational. When Police attended the father’s home they observed the mother to be calm and rational. The father said that the mother had calmed down and that he had only telephoned Police because the mother has Bipolar disorder. Police reported that no offence had occurred and took no further action.
In December 2005 the mother moved into D Street, E. Contact resumed and the father complied with the contact orders until, in February 2006, the child started school. Upon the child starting school, the father stopped contact other than telephone contact.
In April 2006 the mother suffered a work injury as a result of which she could no longer afford to maintain her rented unit. With family financial help, later that month the mother moved to a home she rented at W.
During April 2006 the mother met Mr U.
On 27 April 2006, CK, a thirteen years old daughter of two of the father’s closest friends attended the Police Station where she made a child sexual abuse allegation against him. Her complaint alleged that the father sexually abused her for about five years, commencing when she was about seven years old. The Police notified DoCS and referred the matter to the Joint Investigative Review Team. JIRT officers interviewed CK at her school on 8 May 2006. CK told JIRT officers that most assaults took place when the father stayed over at her parents home. The Risk of Harm Report contained on the NSW Police file[6] summarises CK’s disclosure as being “..she would be woken from her sleep in her bedroom and then taken to the lounge room of her family home and being made to lie on a mattress on the floor while the POI[7] [the father] would kiss her cheeks, touch her vagina with his fingers, lick her vagina and make the victim hold his penis. The victim stated the POI would tell her that he “loved her” and that if she told anyone about the sexual assaults she would get into trouble and make it very hard for her”. CK first made these allegations to school friends who encouraged her to tell her parents, who in turn encouraged her to speak to police. Police decided that CK’s complaint contained insufficient particularisation and time frames to consider criminal charges. They commenced AVO proceedings for CK’s protection from the father.
[6] Exhibit “Q”
[7] Person of interest
On 21 May 2006 the mother collected the child from the father. This was the first occasion that the father had facilitated face to face contact between the mother and the child since the child started school in February 2006. At changeover, the father showed the mother the AVO application made by police on behalf of CK. It contained a slightly more detailed account of the child’s allegations summarised above. The father told the mother that he was “a goner”. Although the statements attributed to CK resonated with the mother’s memory of being sexually abused, she did not know what she should do. At the end of the week the mother returned the child to his father.
On 23 May 2006 the father appeared at the Local Court in relation to the CK AVO application. He consented, without admissions, to a three years AVO. The order includes the standard statutory provisions, including the surrender of firearms and not to assault or harass the victim. The father is restrained from going within 20 kilometres of CK’s home or an address at C and must not approach her or her School.
On 1 July 2006 Mr U and the mother commenced cohabitation at W.
The father next made the child available to spend time with the mother for part of the school holidays, commencing 7 July 2006. Following the child’s arrival, the mother contacted DoCS and sought their advice concerning whether or not she should retain the child. Her concerns particularly related to CK’s sexual assault allegations. In addition the mother applied for legal aid to fund an interim application that the child lives with her and supervision of the father’s time with their son. On 14 July 2006 the mother informed the father that she was not returning the child to him at the end of the school holidays. The mother enrolled the child at W Primary School where he started when school resumed on 25 July 2006. At lunchtime that day the child was involved in a playground accident which left him with facial swelling and black eyes. As events transpired the child attended W Primary School for one day.
Without prior notice to the mother, the father obtained a Recovery Order from the Local Court on 23 July 2006. As the father knew where the mother was living and service, including urgent service, could be effected it is difficult to understand upon what information he was able to persuade the presiding magistrate that his application should proceed ex-parte. The father did not disclose CK’s sexual assault allegation.

Police officers executed the recovery order at the mother’s home on 26 July 2006, returning the child to his father later that day. That evening the father and the child stayed overnight at a friend, Mrs F’s, home. Whilst there the child had pains in his stomach and used the lavatory. After the child had used the lavatory Mrs F saw that he had not flushed it and that there was blood in his stools. When Mrs F called the father to see the stools he became distressed, claiming that here was evidence of the mother sexually assaulting the child. None of Mrs F’s suggestions to the father concerning alternate hypotheses found favour with him. The following day the father and the child left Mrs F’s home and on their way back to B he took the child to the District Hospital. The father says that he believes that the child had a perforated bowel, probably caused by the mother’s finger nail when she inserted it into his anus. However, when the father was informed there was a five hour wait to see a doctor, he and the child left.
Following the child’s return the father stopped contact between the child and the mother, which did not resume until mid November 2006.
On 29 July 2006, the father says the child told him that his mother had inserted her finger into his anus.
On 4 August 2006 the father visited his and the child’s general medical practitioner, Dr H. He did not take the child with him and made no mention to Dr H of his concerns that the mother had sexually assaulted their son. Three days later the father took the child to see Dr H and raised his concerns that the mother had sexually assaulted their son. This is the first time the child saw a medical practitioner following his return to his father on 26 July 2006. Having spoken with and then physically examined the child, Dr H informed the father that there were no wounds or scratches to the child’s anus and in the doctor’s opinion the child’s toileting difficulties and redness arose from too much sugar in his diet.
In the week’s following the child’s return the father says he unsuccessfully tried to persuade Police and DoCS officers to investigate his sexual abuse concerns. When the father attended DoCS he went armed with a hidden tape recorder with which he says he partially recorded their conversation. The child was with him. The DoCS officer was unaware that the father was recording their discussion.
On 8 August 2006 the mother commenced these proceedings in the Local Court. The mother applied for both interim and final orders that the child lives with her and has supervised time with his father. The father was served with the mother’s application on 25 August 2006.
On 29 August 2006, by consent, the Local Court transferred the mother’s applications to the Family Court at Newcastle.
The father informed Police on 10 September 2006 that whilst he was away from his vehicle the prior evening it was broken into. All together the father says that at S he was broken into six times and twice his car was shot at. There is no record in the Police notes of the father complaining to them about being shot at. Although he has no evidence to support his contention, the father says the mother is probably responsible for these attacks.
On 16 October 2006 an order was made for the appointment of an Independent Children’s Lawyer to represent the child and the mother’s interim application was listed for hearing.
At the beginning of October 2006, without notifying the mother, the father moved to the central coast of NSW. He removed the child from B Primary School and enrolled him at the local Public School. The father left the child at the central coast of NSW and returned to B where he remained for the next six weeks. The child stayed with the father’s half brother and his partner. Although the child had met his uncle when he was a baby he had not seen him since. The child and the uncle’s partner had never previously met. Thus although the father left the child with people he trusted, they were strangers to the child. While they were separated each evening the father telephoned the child. This move made it virtually impossible for the mother and the child to see each other during school term.
The mother’s interim application was listed for hearing before a Judicial Registrar on 15 November 2006. That day, by consent and pending further order the Court made the following orders:
1.That the father live with the child … born … January 2001 at D Street, E.
2.That the father do all acts to keep the child enrolled at the school ‘[E] Public School’.
3.That the mother spend time with the child as follows:
a.every third weekend from 4.45 pm on Friday until 4.45 pm on Sunday, with the first such weekend to be 24 November 2006;
b.at other times as agreed between the parties.
4.That the mother communicate with the child by phone:
a.each Wednesday at 6.00 pm;
b.the mother shall telephone the child on … or … to implement Order 4(a);
c.the father shall use his best endeavours to encourage the child to speak on the phone in accordance with Order 4(a).
5.The face to face time to be spent by the child with the mother shall be implemented as follows:
a.the father shall deliver the child to Interrelate Children’s Contact Centre at … at the commencement of such time;
b.the mother shall return the child to Interrelate Children’s Contact Centre at the conclusion of such time;
c.each party shall attend upon Interrelate within the next 7 days and complete the intake procedure;
d.each party shall obey the reasonable directions of the staff of Interrelate and shall equally pay all fees charged by interrelate.
6.Each party is restrained from denigrating the other in the presence of the child and shall use their best endeavours to prevent any other person from denigrating the other party.
7.Order 3 is suspended during gazetted New South Wales school holiday periods.
8.Each party and the Independent Children’s Lawyer has liberty to apply on 3 days notice.
In addition to the consent orders, the Judicial Registrar ordered that the child spend time with his mother from 12.00 noon on 29 December 2006 to 12.00 noon on 7 January 2007 and from 12.00 noon on 19 January 2007 to 12.00 noon on 28 January 2007. It was ordered that changeover take place at Interrelate Contact Service. Upon the making of these orders, the father moved to E, where he and the child moved in with the mother’s former husband and K. As required, the father re-enrolled the child at E Public School and contact between the child and his mother resumed as provided for in the interim orders. This was the first time the mother spent time with the child following the Recovery Order. Changeover took place at Interrelate from late November 2006 until 7 April 2007. The parties agree that this changeover arrangement worked well.
On 23 February 2007 the parties attended the first day of their Less Adversarial Trial before me. On that day, I made the following interim orders by consent:
1.That the child […] born […] January 2001 live with the father at [D Street, E].
2.That the father do all such acts to keep the child enrolled at [E] Public School.
3.That the mother spend time with the child as follows:
a.every third weekend from 4.45 pm on Friday until 4.45 pm on Sunday;
b.at other times as may be agreed between the parties.
4.That paragraph 3 above be suspended during school holiday periods and shall resume on the third weekend of each school term.
5.That the mother spend time with the child for half of each school holiday period, such half to be agreed between the parties, but failing agreement for the first half of the school holiday period.
6.That changeover be at the Interrelate Children’s Contact Service at […].
7.That the first half of the Easter school holiday period shall be considered to commence on Saturday 7 April 2007 and to end on Sunday 15 April 2007, subject to the arrangements of Interrelate. The second half of the Easter school holidays shall commence at 4.45 pm on Sunday 15 April 2007 and shall end at 3.00 pm on Monday 23 April 2007, subject to the arrangements of Interrelate Children’s Contact Service.
8.That the parent with whom the child is not living shall communicate with the child by telephone each Wednesday at 6.00 pm:
a.the mother shall telephone the child on […] or […] to implement such telephone communication;
b.the father shall telephone the child on […];
c.each party shall use their best endeavours to encourage the child to speak on the telephone in accordance with paragraph 8(a) above.
9.That both parties will observe the requirements of Interrelate.
10.That each party is restrained from denigrating the other in the presence of the child and shall use their best endeavours to prevent any other person from denigrating the other party in the presence of the child.
11.That further hearing of this matter is adjourned to 9.30 am on 7 March 2007 to enable the Independent Children’s Lawyer to seek approval for funding for the preparation of an expert report.
12.I give leave to the applicant’s legal practitioner and to the father to appear by way of telephone on the adjourned date.
13.That the Independent Children’s Lawyer have leave to photocopy the documents filed in this matter and provide same to the Court Expert.
On 7 March 2007, by consent Dr P was appointed Court Expert to investigate and report upon matters relating to the child and his parents.
On 7 April 2007 the mother collected the child from Interrelate for the beginning of a one week visit. Later that evening at her W home, the mother says the child told her that his father was sexually abusing him. Her partner Mr U was present and to a large extent corroborates her evidence. This conversation took place on Easter Saturday and the following Wednesday, the mother contacted DoCS Services about the disclosure. As Monday was a public holiday, and the child was not due to return to his father until the following Saturday, the mother’s delay in raising the conversation with DoCS is not unduly concerning. I accept that she also needed to speak with her solicitor and apply for legal aid and that these matters all required her prompt attention.
On 12 April 2007 the mother filed an application for interim orders, seeking to suspend the operative orders and for an order that the child lives with her and has supervised time with his father. If successful, the mother intended to move with the child to the Sunshine Coast in Queensland.
On 13 April 2007 I made the orders set out below:
1.That pending further order or until 4.00 pm on 26 April 2007, whichever first occurs, orders 1, 2, 3, 5 and 7 of the orders made 23 February 2007 are suspended.
2.That the child […] born […] January 2001 shall spend time with the mother upon the following conditions:
a.she maintains [the child’s] enrolment at [E] Public school which school he shall attend every day unless excused for medical reasons or reasons associated with these proceedings;
b.the mother and [the child] will reside in [E] from the beginning of the school term;
c.the mother is restrained from discussing these proceedings or interviewing [the child] any further in relation to matters arising in these proceedings.
3.That both parties shall do all things necessary to cooperate with the prompt investigation of the mother’s allegation that the father has sexually abused [the child].
4.That the father shall file a Response to an Application in a Case and any affidavits upon which he relies by 12.00 noon on 24 April 2007.
5.That both parties shall file and serve a list of documents relied upon to my Associate by 12.00 noon on 24 April 2007.
6.Liberty to the parties and the Independent Children’s Lawyer to apply on 24 hours notice.
7.In the event there is any Recovery Order currently operative I suspend that Recovery Order.
8.That further consideration of this matter is adjourned to 2.00 pm on 26 April 2007.
9.I NOTE that is my expectation that the Independent Children’s Lawyer will take steps to ensure a speedy JIRT investigation of the mother’s child sexual abuse allegations.
So that the mother could comply with the orders requiring her to maintain the child’s enrolment at E Public School, she and Mr U rented a cabin at a Caravan Park. The caravan park is about 25 minutes drive from E.
Notwithstanding my order that the father has supervised time with the child, when school resumed the father attended E Primary School. The father says his primary purpose was to inform the school Principal of the child’s changed situation. As there was no reason to doubt that the mother would do so, I am satisfied that this was a ruse to create an opportunity to see the child. Upon spotting the child with his mother and Mr U he approached them and instigated an argument. The father claimed that there followed a scuffle with Mr U, which allegation he denies. Mr U says that he had the child by the hand and stepped between the boy and his father to shield the child from his father’s emotive carryon. A teacher intervened and escorted the child to class. The parties left the playground without further difficulty. The father’s allegation that Mr U assaulted him is not corroborated by anyone. This is surprising given that the incident took place in a public place and that there were other parents and teachers about. Mr U’s account is more reliable than the father’s and I am satisfied that the father was not abused or assaulted. When the father attended the school he deliberately flouted my expressed intention that he stays away from the child.
On 22 May 2007 the child was interviewed by DoCS officers and the New South Wales Police (comprising the Joint Investigative Review team (JIRT)). The JIRT interview[8] was made available to the court at the further hearing on 6 June 2007. The child denied that either parent had sexually abused him. Following their interview JIRT referred the child to Ms A for counselling. This counselling commenced not long afterwards and appears to have been in the nature of play therapy.
[8] Exhibit “H”
By 6 June 2007 the father was staying with Ms W and suggested she could conduct the child’s changeovers. The father said Ms W was a trustworthy person and relied upon her affidavit complimenting his care of the child. On 6 June 2007 I dismissed the mother’s interim application and ordered that she return the child to his father. This was subject to a number of conditions aimed at ensuring the child’s stability and security pending the final hearing. I made the orders set out below:
1.That the parties and/or their legal representatives and the Independent Children’s Lawyer have leave to inspect documents produced upon subpoena by JIRT.
2.That all previous parenting orders relating to the child […] born […] January 2001 be discharged.
3.That the child live with the Father.
4.That the Mother shall do all acts and give all consents to ensure the Father or Ms [W] (or the Father’s nominee) collects the child from school at [E] at 3.00 pm this day.
5.That the child living with the Father is conditional upon:
a.the Father and the child residing with Ms [W] at [E];
b.the Father ensuring that the child attends all counselling referrals made by JIRT or recommended by the child’s school counsellor;
c.the Father doing all acts to keep the child enrolled at [E] Public School;
d.the Father ensuring that the child has his own bed and bedroom.
6.The Mother shall spend time with the child as follows:
a.commencing 22 June 2007, every third weekend from 4.45 pm on Friday until 4.45 pm on Sunday;
b.at other times as agreed between the parties;
c.for one-half of each school holiday period, as agreed between the parties but failing agreement, for the first half of each period.
7.That during school holidays, order 6(a) is suspended.
8.That the changeover point for the child to commence and end spending time with the Mother shall be the home of Ms [W].
9.That the parent with whom the child is not living with shall communicate with the child by telephone each Wednesday at 6.00 pm.
10.That the parties shall exchange telephone numbers within 7 days for the purpose of implementing order 9 herein.
11.That each party shall use their best endeavours to encourage the child to speak on the telephone in accordance with order 9 herein.
12.That the Independent Children’s Lawyer is at liberty to photocopy the JIRT documents provided under subpoena to produce same to the Single Expert.
13.I extend the time for compliance with the subpoena issued to Interrelate and JIRT (insofar as it relates to the interview tapes) to 9.15 am on 25 June 2007 before a Registrar.
14.That when the audio tapes of the JIRT interview are produced, the Independent Children’s Lawyer shall be at liberty to forward them to Dr [P].
15.That in addition to the matters posed to the Chapter 15 Court Expert, Dr [P] referred to in orders made on 7 March 2007, the Court Expert shall address the following matters:
a.whether there is any evidence that the child has been physically or sexually abused by either party in the past;
b.whether, in the opinion of the Expert, there is likelihood of the child being subject to physical or sexual abuse by either party in the future.
On 8 August 2007, the father informed the Court that he wished to move away from Ms W’s and proposed living with a friend at L. The mother opposed this application and the orders remained the same. This meant that the father had to maintain the child’s home with Ms W. Nonetheless, the father divided his and the child’s time between Ms W’s and his friend’s homes.
In accordance with the orders, the child went to his mother on 29 September 2007 for the school holidays. He was returned to his father on 7 October 2007.
Mid afternoon on 24 October 2007, without telling the mother, the father withdrew the child from class and later that day they left E for the central coast of NSW. On the drive down the father telephoned the Independent Children’s Lawyer and informed him that he and the child had left E because their lives were in danger. They stopped overnight along the way and arrived at the uncle and his partner’s home in the central coast of NSW some time over the weekend of 27-28^th October 2007. In moving to the central coast of NSW the father simultaneously and deliberately breached a suite of parenting orders which were clearly aimed at providing the child with a degree of stability and supervision pending this hearing.
Upon the instigation of the Independent Children’s Lawyer, this matter was listed before me on 2 November 2007. Having become aware that the father had moved the child away from E, the Independent Children’s Lawyer saw that it was appropriate, that as the father had not sought to vary the orders, the child’s changed circumstances should be brought to the Court’s attention. No change to the operative orders was made. The Court requested the Principal of the local Public School to inform the Court and Independent Children’s Lawyer in the event that the child failed to attend school. At this hearing, the father informed the Court that he would not make the child available to spend time with his mother on the weekend 2 – 4 November 2007, when pursuant to the operative orders the child was entitled to spend time with her. In his opinion the mother presented an unacceptable risk to their son.

Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent. The child’s parents cannot live in close proximity to each other and hereafter intend to live a long way apart. Irrespective of whether the mother lives in E or the Sunshine Coast, because the father will be a minimum of seven hours away the opportunity for regular weekend visits and midweek involvement with both parents is defeated. That is unless the parents do all of the travelling and stay close by to where the child is living. They both have motor vehicles and the father at least is unlikely to have employment commitments which intrude upon his time. In this sense he is at least able to travel more regularly that may be the case if the mother is working. Both parties however are of modest means and regular travel and accommodation expense is beyond their reach. Notwithstanding this, so as to provide for this possibility and limit the prospects of future litigation, I will make orders which enable the parent with whom the child does not live to have more frequent time together than will probably eventuate.
Regular telephone communication is feasible and desirable. Although it is a poor substitute for face to face visits, it enables the child to maintain contact. Because of the parties appalling communication this method needs to be strictly controlled so that the child does not become embroiled in one parent’s, namely his father’s, attempt to harass his mother.
The parties agree they may be able to book cheap airfares so that at least during school holidays the child will be able to have block periods with his other parent. By the time this arrangement is suitable the child will be able to comfortably manage unaccompanied air travel.
Although these practical issues influence the structure of my orders concerning the circumstances in which the child will spend time and communicate with the parent with whom he does not live, it is the risk and relationship issues which ultimately determine the structure for these arrangements.
Section 60CC(3)(f) focuses upon the parties’ parenting capacity. I have earlier made numerous findings which indicate that the mother’s parenting capacity is superior to the father’s. These do not require restating.
It is important to note in this context that the child is an intelligent child who, at E Primary School has been doing very well. He studies advanced literacy and is regarded as having real academic potential. In his father’s care his school attendance has been excellent and he always has appropriate food and clothing. Overall this school has been happy with the father’s care of the boy. These observations are corroborated by Ms W, who explained that the father insisted on personally attending to the child’s needs. While living with her Ms W said the father prepared the child’s meals, oversaw his homework and that the child was appropriately bathed and clothed. The effect of this is that I am satisfied that the father, provided he has accommodation, is able to attend to the child’s physical needs. While the child is with his mother, she too ensures that he is appropriately fed, bathed, clothed and equipped for school.
The significant differences between the parties parenting capacity lies in their ability to provide the child with a settled home life, emotional security, teach him appropriate boundaries and promote his psychological well being. As to the later the father’s paranoid disorder greatly compromises his ability to permit the child to maintain a relationship with his mother and exposes the child to a highly unstable future. For the reasons already discussed the mother has a better appreciation of her parenting responsibilities and her judgment is not as impaired as the father’s. From the father’s perspective the sad reality is that although he has tried hard to promote the child’s well being, in his care the child has endured years of instability and emotional turmoil. Before the child’s psychological and educational well being is irreparably damaged it is essential that he leaves his father’s care for the potential of a more settled life with his mother. These are findings to which I attach significant weight.
There are no s 60CC(3)(g) factors which require further consideration.
Aboriginal and Torres Straight Islander issues do not arise.
As far as possible the Court should make orders least likely to lead to further litigation. As this case demonstrates litigation is stressful and undermines a person’s ability to move on with their life. If the child lives with his father he will almost certainly fail to comply with orders for the child to spend time with his mother. Future proceedings are almost certain. The mother is far more likely to comply with the orders and the prospect of further proceedings is less probable. If difficulties arise they are most likely to arise if the father’s paranoid disorder worsens. In any event the risk of future proceedings is a factor which does not warrant significant weight. To the greatest extent possible I have tried to construct orders which address future circumstances so that the parties have a long term framework within which the child will be cared for. This is designed to relieve them of the need to try and negotiate future arrangements, a situation which is fraught with risk.
There is considerable overlap between s 60CC(3) and (4). There are no further factors which s 60CC(4) requires the Court to consider. The mother has been keen to participate in decisions about the child’s schooling and other major long term issues. The father has denied her this opportunity. His stance has nothing to do with the child’s best interests and is primarily a result of the parties’ grossly dysfunctional relationship and the father’s paranoid disorder. Curiously the mother unashamedly said that she would not consult the father because he had refused to consult her. The parties agree that they are unable to communicate and have virtually no ability to rationally discuss their son’s future. I agree that their stance reflects reality and that there is little prospect of improvement. In their own ways each party has tried to cooperatively co-parent but their respective psychological vulnerabilities has made this impossible.
In the face of the father’s paranoid opposition the mother has persisted in trying to spend time and communicate with the child. There have been periods, when the father went to considerable effort, driving the child back and forth, to enable the child to see his mother. Unfortunately he is no longer willing to facilitate their relationship and persistently refuses to comply with orders.
Both parties receive Centrelink benefits and I infer that, at best, the mother’s pays the statutory minimum child support. In the circumstances this does not warrant criticism but it is important to acknowledge that the father has maintained the child in very difficult financial circumstances. He has done his best by the child financially.

Conclusion

This is a sad and difficult case. The child loves both of his parents and in their own way each has tried to do their best by him. Life has not been easy for either party and both have faltered under the stressors that have come their way. The situation now is that the parties are unable to communicate with each other and agree that whichever of them has the child’s primary care must also have sole parental responsibility. The father believes the mother is trying to have him killed and is terrified of coming into contact with her or her milieu. He has nothing to fear but his disturbed thought processes makes it impossible for him to accept reality. Over the years the mother has found it impossible to deal with the father and cannot cope with his harassment or criticisms of her. These situations are unlikely to change and mean a sole parental responsibility order is necessary if the child is to avoid being disadvantaged by his parents inability jointly make necessary decisions.
The parties agree that an equal time arrangement is unworkable and neither supports a substantial and significant time arrangement. Even if this was solely an issue of distance I agree these arrangements are unavailable.
In his father’s care the child has repeatedly moved home and school. His father has given and then withheld contact with his mother. The point has now been reached whether the father is unable and will not facilitate an ongoing relationship between the child and his mother. Although the child is more attached to his father he will endure profound loss if his relationship with his mother is destroyed. The only way in which the child may have a continuing relationship with both of his parents is if he lives with his mother. The father will find this prospect unbearable. He wrongly believes that the child’s mother is evil and that the child is in grave danger in her care. It is difficult to anticipate how the father will cope with this turn of events, but the risk that he might flee with the child so as to keep the child safe is high. If this occurs the child’s life will be thrown into chaos. There is also a high risk that the father will embroil the child in his paranoid opinions about the mother and make it almost impossible for the child to settle into her care. It is my strong view that if the change in the child’s living arrangements is to succeed the child must be given every opportunity to form his own views about living primarily with his mother and not have to grapple with the father’s perpetual denigration of her. These matters are too serious to have a benign response. So as to give the child the best chance for a reasonably stable future he will live with his mother and for the next two years have supervised visits with his father.
Two years from now the child’s relationship with his mother will be much stronger and he will be less reliant upon his father. Because she is reasonably stable and focused upon the child’s welfare he is likely to have an even more positive view of her and be better able to cope if his father harasses him about her perceived shortcomings. The child and his mother will have received counselling and his mother’s psychiatric health carefully supervised. By then the mother will be better able to appreciate that there is little risk to the child of sexual abuse by his father and her ability to parent the child should not be undermined by this prospect. The father will also have received psychiatric help and my hope is that some of his more florid paranoid beliefs will have diminished. Because he may still be paranoid about the child being with his mother there will be a carefully graduated regime of increasing visits between the child and his father. The rationale for this is primarily to enable the child to adjust to spending unsupervised time with his father, in circumstances where there may still be an element of his father undermining his mother.
Supervision must be undertaken by skilled supervisors. It is possible the nominated contact service may not be able to facilitate visits as frequently or for as long as anticipated by my orders. I cannot and do not purport to bind the service. I well understand that these services have limited resources within which to meet enormous demand. For this reason I have ensured that the contact service may vary the duration and frequency of the father’s visits. Both parties were content with the assistance offered though Interrelate and this is a place familiar to the child. Until the mother moves away from E this is an appropriate place for the father and the child to spend time together. If the father stays living on the Central Coast this involves long drives and enormous effort on his part. Feasibly he could move closer without needing to be near the mother. He is without strong ties to any location and he may find that moving closer works better from his and the child’s perspective. If and when the mother moves to Queensland the venue for these visits will shift to a location closer to her home. I have nominated the only contact service on the Sunshine Coast of which I am aware. The parties are at liberty to agree on another. If for some reason they have difficulties making arrangements with the nominated contact services the Director of Family Services in this registry shall assist or nominate an alternate service. It will be the parties’ responsibility to advise that this assistance is required. Because of the parties’ poor communication and the intricate orders, for twelve months the Manager of child Dispute Services shall supervise compliance with them. This supervision is particularly important in relation to the child and his parents each receiving the therapeutic assistance required by the orders.
Once the father is able to have unsupervised time with the child the changeover place, unless the child is travelling by air will ideally be the contact service. Because the service will know the parties well, this is likely to make changeovers easier for them and the child. If this is impossible the mother shall nominate a local public place. She is likely to be more familiar with appropriate venues in her local area and nominating one party to make this choice avoids the parties needing to resolve a potentially tricky issue.
The child is used to talking to the parent with whom he does not live each Wednesday evening. This arrangement should continue.
There is a suite of orders aimed at ensuring the parties each receives important information concerning the child and has the information they need to enable him to communicate with them. For obvious reasons the parties need to know where each other lives.
The orders include a series of injunctions aimed at promoting the child’s welfare. These are self explanatory and are designed to protect the child from further questioning and denigration. These are an important component in promoting the child’s psychological well being.
For these reasons I am satisfied that the orders identified at the start of this judgment are in the child’s best interests.

I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 14 December 2007

[2007] FamCA 1448

14 December 2007

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Procedural Fairness