MEINHARDT & SANTOS

FAMILY COURT OF AUSTRALIA

MEINHARDT & SANTOS

[2012] FamCA 255

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties propose that there be equal shared parental responsibility – best interests – orders that the parties have equal shared parental responsibility for the child

FAMILY LAW - CHILDREN – final orders – with whom a child lives – where the father seeks orders that the child live with him and spends time with the mother – where the mother makes allegations of sexual abuse against the father and the paternal grandmother – where the father alleges that the child has been emotionally abused by the mother – where the Court was not satisfied that evidence had established that the child had been sexually abused or that the father was an unacceptable risk – where the Court found that the mother had inadvertently influenced the child to make allegations of inappropriate behaviour – where the child has a loving relationship with both parents – best interests – orders that the child be cared for in a shared care week about arrangement.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA & 69ZT
Evidence Act 1995 (Cth) s 140

Chappell & Chappell (2008) FLC 93-382
Goode and Goode (2006) FLC 93-286
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT:

Mr Meinhardt

RESPONDENT:

Ms Santos

INDEPENDENT CHILDREN’S LAWYER:

Bowen Lawyers

FILE NUMBER:

DNC

165

2007

DATE DELIVERED:

23 April 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

19-23 September 2011; 26-30 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Smith

SOLICITOR FOR THE APPLICANT:

Cecil Black Family Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bowen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowen Lawyers

Orders

The parents have equal shared parental responsibility for the child Y born on … August 2004.
Unless otherwise agreed in writing by the father and the mother:
(a) during school terms except as otherwise provided in these orders:
(i)the child shall continue to live with the mother from the conclusion of school on Monday to the commencement of school on the following Monday each alternate week and with the father at other times during school terms;
(b)during school holidays except as otherwise provided in these orders the child shall:
(i)live with the father for one half of all school holiday periods being the first half in odd numbered years and the second half in even numbered years;
(ii)live with the mother for one half of all school holiday periods being the first half in even numbered years and the second half in odd numbered years;
(c)for the purposes of these orders the first half of the school holidays commences at 2.30 pm on the last day of school before the school holidays, irrespective of whether or not that day is a Friday and the second half of the school holidays commences at 10.00 am on the middle day of the holidays.
Unless otherwise agreed in writing by the father and the mother, the child shall spend time as follows:
(a)on the mother’s birthday from 2.30 pm the day before her birthday to 8.00 am the day after the mother’s birthday;
(b)on the father’s birthday from 2.30 pm the day before his birthday to 8.00 am the day after the father’s birthday;
(c)if the child’s birthday falls on a school day the parent with whom the child is not living that day shall spend time with the child from the conclusion of school until 6.00 pm that day;
(d)if the child’s birthday falls on a day that is not a school day the parent with whom the child is not living that day shall spend time with the child from 10.00 am until 2.00 pm that day;
(e)with the mother on Mother’s Day from 10.00 am until 8.00 pm;
(f)with the father on Father’s Day from 10.00 am until 8.00 pm;
(g)in even numbered years the child live with the mother from 5.00 pm Christmas Eve until 2.00 pm Christmas Day and live with the father from 2.00 pm Christmas Day until 5.00 pm Boxing Day;
(h)in odd numbered years the child live with the father from 5.00 pm Christmas Eve until 2.00 pm Christmas Day and live with the mother from 2.00 pm Christmas Day until 5.00 pm Boxing Day.
Handovers are to take place at the school when it is on a school day and at such other places as agreed by the parties at other times and failing agreement at Location 1, NT when the child is to commence living with or spending time with the father and at Location 2, NT when the child is to commence living with or spending time with the mother.
Each party is to be involved in the time spent changeover personally without the presence of any other family member unless either party is not physically able to attend such changeover and has advised the other party by SMS 24 hours prior to such changeover as to the identity of the person involved in the changeover.
Both parties keep the other informed in writing of any medical treatment sought for the child, together with the name of the medical practitioner concerned and details of medication prescribed and authorise the other party to confer with any such medical practitioner should he or she so desire.
Both parties immediately inform the other party of any emergency treatment sought for the child together with full particulars of the person and place of treatment and in any event within 24 hours of such treatment in an emergency.
Each parent be entitled to obtain directly from any school attended by the child or from any health or welfare professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and time spent details of any relevant education, health or welfare professional and keep the other party so informed should such details change.
Each party keep the other advised as to their residential address, land line telephone number, mobile, emergency telephone numbers and advise the other of any changes to such details if possible seven [7] days prior to such changes.
The parties be and are hereby restrained from denigrating the other in the presence of the hearing of the said child and must do all things reasonably necessary to ensure that no other person denigrates the other parent in the presence or hearing of the child including removing the child from the presence of such person.
Both parents are restrained from applying for or obtaining a passport in the name of the child without written consent of the other party first had and obtained.
Both parties are restrained from taking the child to any professional counsellor without the written consent of the other SAVE AND EXCEPT in relation to the orders concerning Mr R.
Subject to Mr R’s recommendations and his availability that the child shall attend once a month upon Mr R without others present and with the parties to share the cost of that attendance equally:
(a)should Mr R seek to attend with the child more than once a month such attendance shall occur with the mother to meet costs of that additional attendance unless otherwise agreed between the parties;
(b)subject to the recommendations of Mr R the child shall continue to attend upon Mr R for a period of no less than two [2] years and thereafter as recommended by Mr R.
The appointment of the Independent Children’s Lawyer be discharged on the expiration of one calendar month from this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meinhardt & Santos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 165 of 2007

Mr Meinhardt

Applicant

And

Ms Santos

Respondent

REASONS FOR JUDGMENT

Introduction

The father Mr Meinhardt and the mother Ms Santos each seek orders relating to parental responsibility and future care for their child Y who was born in August 2004.
The father seeks final orders as set out in his final Amended Initiating Application filed on 8 August 2011. A brief summary of those orders sought is that he seeks sole parental responsibility for Y, that Y live with him and that Y spend time with the mother on alternate weekends from 3.00 pm Friday until 8.00 am Monday, half school holidays and on special occasions. There were other specific injunctive and ancillary orders sought. The father maintained his position seeking those orders at the conclusion of trial.
In the response to the Initiating Application filed by the mother in February 2011, the mother sought final orders which provided that she have sole parental responsibility for Y, that Y live with her and that the father spend supervised time with the child at B Contact Centre, NT for two hours each week at times that are convenient to B Contact Centre, NT.
In the Case Outline filed by the mother on 25 August 2011, the mother set out orders sought on the basis that either the Court found that there was an unacceptable risk for the father to have unsupervised time, or that the Court found that there was no unacceptable risk of unsupervised time between the father and Y.
The mother continued to seek that the father have only limited supervised time if the Court found that there was an unacceptable risk. If the Court did not make such a finding of unacceptable risk, then the mother proposed that there be a gradual introduction of unsupervised time between the father over a period of weeks, finally returning to the final consent orders which had been made in March 2007 (which provided that Y spend time with the father from 6.00 pm Friday to 6.00 pm Wednesday each alternate week during school terms and for half school holidays).
In that Outline the mother also sought detailed orders requiring the parties to attend upon a psychologist and for the child to attend upon a psychologist. She also sought orders that she be permitted to take Y on holidays to East Timor.
The Case Outline was prepared when the mother was still receiving legal advice from her solicitors. At the trial the mother was unrepresented. During the trial, and in particular after the evidence of the Independent Children’s Lawyer’s witnesses (including the child’s School Principal) was heard, the mother’s position changed significantly. At the conclusion of the trial the mother proposed that final orders be made for the parties to have equal shared parental responsibility and that Y live one week with her and one week with the father.
Initially, the mother’s case was based upon her allegation that the father had sexually abused Y and that the paternal grandmother had either sexually abused the child or had been complicit in the sexual abuse perpetrated upon Y by his father.
Initially, the case of the mother was on the basis that there may be insufficient evidence to allow the Court to make a positive finding of sexual abuse, but nonetheless there was an unacceptable risk for the child to spend unsupervised time with the father.
The father maintained that the mother had abused the child by coaching the child to make false allegations about him.

The hearing

The trial commenced in Darwin on 19 September 2011 when the applicant father was represented by Counsel, Mr Smith. The respondent mother was unrepresented. The Independent Children’s Lawyer, Ms Bowen, appeared. The matter was stood down to permit the parties to conduct negotiations and discussions. The negotiations were unsuccessful. The trial continued until judgment was reserved on 30 September 2011.
The Court received the affidavits upon which each of the parties relied. The mother gave her oral evidence first and was cross-examined. During the cross-examination of the mother, the evidence of Ms K, the Psychologist, was interposed as was the evidence of Sergeant A. The Court then heard the evidence of Ms D (Psychologist), Ms C (Social Worker) and Ms E (Principal of the child’s school) who were all called by the Independent Children’s Lawyer.
The mother then resumed her cross-examination (on 26 September 2011).
The father gave oral evidence, as did his mother and step-father.
The father relied upon the affidavit of Mr F (document 47) a technical expert. He was not required to give evidence. Annexed to his affidavit was the tape-recording made by the mother when interviewing Y on 9 September 2010 and an enhanced transcript of the recording.
The Family Consultant, Mr V, was called by the Court and cross-examined by the Independent Children’s Lawyer and Counsel for the father.
The Court then received the written submissions of the father and mother and heard the oral submissions of the Independent Children’s Lawyer, Counsel for the father and the unrepresented mother.

Relevant background

The father was born in 1980 and is now aged 32. The mother was born in 1982 and is now aged 29. They commenced a relationship in approximately 2002 or 2003 and were married in Darwin in October 2003.
Y was born in August 2004. The parties separated in December 2004 when the mother left the matrimonial home taking Y with her.
There is considerable dispute about the arrangements concerning the care of the child and the allegations about the behaviour of the extended family of both parents before the parties’ separation.
The father commenced proceedings in the Federal Magistrates Court in January 2005. Final parenting orders were made on 4 May 2006 which provided:
1.That in addition to the final Orders made on 1 March 2006 the following orders be made:
4(d)That the husband have contact with the said child as is agreed but in default of an agreement;
(i)From 6 pm Friday until 6 pm Sunday each alternate weekend commencing 5 May 2006;
(ii)from 5.40 pm Thursday until 8 am Friday each alternate week commencing 11 May 2006;
(iii)from 5.40 pm Tuesday to 8 am on Wednesday each alternate week commencing 16 May 2006.
19.That for the purposes of changeover for contact:
(a)The father, until 31 December 2006, shall collect the child at the commencement of contact at [Location 1] and deliver the child to the mother at the same location at the conclusion of contact.
(b)As and from 31 December 2006 the father shall collect the child at commencement of contact at [Location 1] and the mother shall collect the child at the conclusion of contact from [Location 2].
20.That upon the child commencing pre-school each parent be permitted to travel interstate with the said child during their block holiday contact for a maximum period of ten (10) days upon giving the other parent 28 days notice in writing of their intention to travel together with an itinerary, confirmation of return ticket for the child and telephone number for the child during the holiday period.
21.That both parents be restrained from applying for or obtaining a passport in the name of the child without written consent of the other party first had and obtained.
…
On 21 March 2007 those final orders were discharged and new orders were made by consent which provided inter alia that the parents have equal shared parental responsibility for Y and that Y spend from Friday evening to Wednesday evening each alternate week and half school holidays with his father.
There were further proceedings initiated by the father in October 2009.
Orders were made in relation to the child’s schooling in January 2010 and otherwise final orders were made dismissing the father’s application on 2 September 2010.
The mother sought the father’s consent to permit her and Y to travel to East Timor where she wished to visit her family. The father did not consent to this arrangement.
At this time the mother alleged that the child made disclosures of sexual abuse by the father and implicated the paternal grandmother. The tape-recording made by the mother and the mother’s evidence indicates that this was on 9 September 2010. Thereafter, Y was interviewed by the Northern Territory Police and shortly thereafter by Ms D, Psychologist, who prepared a report.
On 1 October 2010 orders for the father to spend time with Y were suspended.
Further interviews took place of Y by the Northern Territory Police, NTFACS (Ms G) and Ms K who interviewed Y at school on three occasions in November 2010.
Allegations also arose that Y was behaving sexually inappropriately towards another child at school in November 2010 and had been abused by his cousin in December 2010.
Ms K released her report in early December 2010.
Following upon Family Court orders the Family Consultant, Mr V, carried out a Family Assessment and released his report in June 2011.
It was not until the trial of the proceedings that the tape-recording made by the mother of the mother’s questioning of the child in September 2010 was made available to the independent experts.

Main Issues

At the commencement of the trial the issues appeared to centre around the mother’s allegations that due to the child’s alleged disclosure made to her there was an unacceptable risk for the father to spend any unsupervised time with the child. The father maintained at the commencement, and throughout the trial, that the mother’s allegations were false, that this consisted of serious ongoing emotional abuse and that therefore Y should reside primarily with him.
During the trial, after hearing the evidence of several significant witnesses, the mother’s case changed significantly. She was no longer maintaining that the father had sexually abused Y. At times she conceded that she had made a mistake in the way she questioned Y. At the conclusion of the trial the mother maintained that it was in Y’s best interest to continue residing with her, but that she would agree to Y residing with the father on a week about basis and for the parents to have equal shared parental responsibility.
Some of the evidence presented to the Court related to the behaviour of the mother, father and their extended family members in the period prior to the separation of the parties and shortly thereafter. That evidence was not determinative of the issues relating to Y’s best interests and was merely ancillary to the history and background of the difficulties in the relationships between members of Y’s family.
Significantly, at the conclusion of the trial a Consent Order was made that pending delivery of judgment, the parties are to have equal shared parental responsibility for Y and to live with each parent on a week about basis.
The Consent Order included ancillary provisions. It also provided for the child to obtain assistance from counsellor Mr R and for the parties to each engage in relationship counselling.

The Law

The Family Law Act1975 (Cth) (“the Act”) Part VII sets out the principles relevant to proceedings concerning children.
The most relevant sections for consideration are sections 60B, s60CA, s60CC, s61DA and s65DAA.
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii)    to develop a positive appreciation of that culture.

Section 60CA provides:
Section 60CA
Child’s best interest paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interests. The primary considerations are:
Section 60CC (2)
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Section 60CC(3) provides:
Section 60CC(3)
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Section 61DA provides;
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Section 65DAA provides;
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Section 69ZT provides:
Section 69ZT
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Section 140 of Evidence Act 1995 (Cth) (which is part of Chapter 4.1) provides:
Section 140
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
Counsel for the father referred the Court to Goode and Goode (2006) FLC 93-286, Chappell & Chappell (2008) FLC 93-382 and N and S and the Separate Representative (1996) FLC 92-655.

Discussion and findings

The mother commenced her case relying upon her own evidence and that of the Family Report writer, Mr V, together with what she anticipated would be the evidence of Ms G, Ms K and Ms D (who had conducted interviews of Y and made findings in relation to Y’s allegations) and the evidence of the School Principal, Ms Ms E.
Initially, the mother relied upon disclosures made to her on 9 September 2010, to Ms D on 24 September 2010, to Ms G on 20 October 2010 and to Ms K on 15 and 18 November 2010. She also referred to the sexualised behaviour of Y at school and with his cousin suggesting this behaviour supported the allegation that Y had been sexually abused by his father.
At the conclusion of the trial (and having heard the evidence in particular of Ms D, Ms K and the Principal, Ms E) the mother appeared to accept some responsibility for her questioning of Y and the concern the witnesses expressed about her influence over the child to make statements concerning the father.
The father refused to accept the mother’s change of attitude was genuine. He maintained that she had engaged in deliberate abusive behaviour and therefore was unsuitable to have other than limited alternate weekends and half school holidays with Y.
During the cross-examination of the mother by counsel for the father, the mother admitted that at one stage, shortly prior to the commencement of the trial, she had agreed that the father have the primary care of Y.
Significant portions of the tape-recorded questioning by the mother of Y on 9 September 2010 indicate that the mother was questioning Y in a way which was suggesting the answers to him and which possibly had the effect of encouraging him to implicate his father and paternal grandmother.
In the middle of the cross-examination of the mother the Court received the oral evidence of Ms K.
Ms K prepared reports in the Federal Magistrates Court proceedings in 2005 and 2006. This was prior to Consent Orders being made in the Federal Magistrates Court in March 2007.
A further report was ordered by Federal Magistrate Turner on 12 October 2010. As a result Ms K prepared a Psychology Report on the 6 December 2010. The report was based on three interviews with Y at his school in November 2010. At that time Y was living with his mother and having only supervised visits with his father at B Contact Centre NT. The report recommended in part:
“Due to the complexity of this matter it is recommended that NT Families and Children take carriage of the investigation and determine whether the abuse allegations are substantiated or not.” (Page 2 of the report).
During the first interview Y told Ms K that “My Dad is crazy” and that “my Mum thinks my Dad is crazy”. He made comments suggesting that his father had kissed him on his anus. During the second interview Y also made comments such as “Papa was sucking my wee wee” and “Papa kisses me in the balls”. He also reported that his father “punched his penis” and that his grandmother “squeezed his balls”.
The report also indicates that Y reported observing domestic violence between his parents. However, part of the discussion resulted in Y saying that his mother had told him the story.
During Ms K’s evidence, she was provided with the tape-recording of the mother’s questioning of Y on 9 September 2010. Having heard the tape, Ms K concluded that the mother was putting ideas into Y’s head and that her behaviour was very concerning and inappropriate.
Police Officer, Sergeant A, interviewed Y on 17 September 2010. Sergeant A concluded that the tape-recorded questioning by the mother of Y indicates that Y probably said what he thought he had to say. During the interview with Sergeant A, Y reported that ‘Mum told me I have to say stuff about Dad to the police”.
Ms D’s evidence was significant. In her letter dated 29 September 2010 to the mother’s then solicitor, Mr N, Ms D reported upon her interview with Y at her office on 23 September 2010. That letter indicates that she specifically did not request to hear the mother’s questioning of Y before speaking to Y. It also sets out that she had previously assessed Y in March 2007 at the request of the father who was seeking a psychological assessment of Y due to his concerns about Y’s development.
The letter from Ms D of 29 September 2010 indicates that during the interview of 23 September 2010, Y disclosed to Ms D:
“… that his father had been touching his “will” with his hands and his mouth over [Y’s] “willy” and also touches his “willy” with his hands. He informed that he hits his father on the head when this is happening and tells him to stop. He stated that the touching occurs when he and his father are playing a fighting game and that his father uses his “sharp teeth and claws to touch his willy”. [Y] was able to demonstrate how this touching occurred using male puppets.”

During her oral evidence Ms D confirmed her opinion that Y was no longer showing any signs of developmental delay.
During cross-examination by counsel for the father, the tape-recording of the mother’s questioning of Y was played to Ms D. Her reaction was to express serious concern about the mother’s questioning and to describe it as “nothing short of abuse”. Ms D indicated that she would not have interviewed Y if she had been aware of the form of questioning carried out by the mother. She expressed her opinion that the child had already been “primed to answer questions in a way”.
When re-examined by the Independent Children’s Lawyer, Ms D agreed that the child did not appear to know the difference between reality and fantasy.
Constable M’s evidence related to his interview of Y on 17 September 2010. His oral evidence indicated that he had concluded that the mother had told the child what to say.
The Independent Children’s Lawyer called Ms C, a Social Worker. Ms C had not met Y, but had interviewed both parents. She referred to the reports to the NTFACS of alleged abuse from 2005 to 2011.
The Court received various exhibits in relation to notes of interviews of the parents and various investigations, including notes concerning recent incidents of Y’s sexualised behaviour at school.
Ms C’s evidence was that the Department had concluded that both parents had been responsible for emotional harm to Y.
The Principal of Y’s school, Ms E, gave evidence. In particular, she reported on sexualised behaviour involving Y at school. On two occasions it involved inappropriate sexualised behaviour with a friend of Y’s and other occasions when Y had behaved inappropriately by pulling his pants down and wiggling his bottom in front of other children.
Ms E gave evidence that Y had spoken to a teacher on 9 September 2010 when Y reported that he thought he was going to live with his father and would never see his mother again. Y reported that he wanted to live with his mother and continue to spend time with his friends at the school he was then attending. Y also reported that he wished his parents would share him and not fight over him.

It was after this evidence of Ms K, Ms D and Ms E that the mother resumed her oral evidence being cross-examined by counsel for the father. The mother then indicated that she had not meant to do anything wrong when questioning Y about possible sexual abuse.
The mother gave inconsistent evidence about the timing of her questioning of Y, and the tape-recording of her questioning.
During cross-examination of the mother by the Independent Children’s Lawyer, the mother again expressed concern about the impact the dispute had had upon Y. She specifically said that having heard the evidence of the School Principal, she was concerned for Y and the fact that he had been “in the middle of all this”. I interpreted her reference to be to the dispute between his parents, the investigations and the ongoing litigation.
The mother said that she had learnt a lot as a result of hearing the evidence of the various witnesses.
The mother denied the father’s allegations that she had ever had oral sex with her sister. She also denied experiencing domestic violence from her parents. She asserted that the father and his family had forced her to get a domestic violence order against her own parents.
The father in his sworn affidavit evidence denied any abuse of Y.
He refused to accept the mother’s change of attitude and said that he did not believe that she wanted to “move forward”. During cross-examination by the mother, the father refused to accept any arrangement whereby Y spent half-time with him and half-time with the mother.
The father’s step-father, Mr H, was briefly cross-examined by the Independent Children’s Lawyer. His evidence was supportive of the father.
The paternal grandmother also gave oral evidence. She strenuously denied any abuse of Y and denied ever having observed any abuse by the father. She was very supportive of the father’s case.
The mother cross-examined the paternal grandmother about her religious and healing beliefs and practices and about her relationship with her son and Y.
The paternal grandmother maintained her evidence that there had been an inappropriate sexual relationship between the mother and her sister.
The paternal grandmother presented as totally supportive of her son’s case. She was not prepared to accept the allegations made by the mother that she had been controlling the mother in an inappropriate way during the relationship between the mother and father.
The paternal grandmother’s evidence was that she was available to assist the father in providing care for Y where necessary.
The Family Consultant, Mr V, prepared a detailed report of 27 June 2011. The report was based upon interviews on 7 June 2011 with the father, the mother, Y and Ms and Mr H (the paternal grandmother and her husband). Mr V also observed Y with his father, his mother and his paternal grandparents on 7 June 2011.
Mr V’s report indicates that he was aware that in November 2010 there had been an incident at the child’s school when there had been allegations of sexually inappropriate behaviour and a subsequent similar incident in December 2010 in relation to Y and his cousin.
Mr V’s report indicates that he was aware that the NTFACS had made a finding of substantial emotional maltreatment of the child by both parents, based upon the way the parents had involved Y in the Family Law proceedings.
Ms K’s report of 3 December 2010 was also before the Family Consultant.
When interviewed by Mr V in June 2011, the father proposed that he have a “50/50 parenting arrangement”. He denied any sexual abuse of Y.
During the interview with Mr V, the mother was unsure of what order she sought but continued to want any time the father spent with Y to be supervised.
Under the heading “Adults” Mr V refers to both parents as follows:
47.[The mother] presented as highly credible and genuine in her accounts and around her extreme caution about [Y] increasing time spent with the father away from any supervision. She explained that she had made the recording of [Y’s] disclosure out of an urgent desire to provide concrete material for the police, but later realized her complete lack of expertise in these matters had probably led to that material being unhelpful.
48.While being extremely cautious about the potential for [Y] moving to unsupervised time with the father, she presented as fully supportive of them continuing to have meaningful time together. She appeared to be struggling to balance this desire for them to continue their relationship with her seemingly acute sadness about how [Y] would one day recall, in her view, what the father had done to him. This struggling reflection was the most critical she became of the father throughout her interview.
49.[The father] presented as a complex mixture of emotions and attitudes. Nonetheless, his rejection of being the perpetrator of sexual abuse was credible. His solicitor had suggested to me that the father was still quite angry and upset about the April court outcome. While there were clear elements of these emotions in his presentation, he seemed to be much more bitter about the mother’s ongoing attempts to alienate him from [Y]. His bitterness was conveyed with what appeared to be a strong dose of depression. Certainly his negativity about the supervised times with [Y] revealed an intriguing contrast with his arguments about how happy [Y] was on these occasions, as detailed in the CCC supervision notes.
50.He also expressed bitterness towards the court. He was struggling with his certainty that the “evidence” was already there for “everyone” and the court’s apparent inability to see it. In a sense, he seemed to be delving into thoughts about the court actively supporting his alienation from [Y] through its not accepting the “evidence” which was so absolutely clear to him and his family.
When describing the paternal grandmother and her husband, Mr H, Mr V reported:
51.[Mr H] and [Ms H] presented as thoroughly supportive of their son. They appeared to be very positive people full of abundant love for the father and their grandchild. They commented on how “nice” it was to see [Y] so happy on the family report interview day.
52.[Ms H’s] buoyant and pleasant presentation adjusted to a more reflective and sad one when discussing her affidavit material and her reasons for it. She claimed to have kept quiet for several years out of deference to [the father] and [Y]. She depicted herself, most credibly, as just living for her family and friends, someone who would not listen to “stories” about others.
53.However, in her capacity as a healer (a gift from birth she described it as), she had quasi professional relationships, it seems, with members of [the mother’s] family (including her sisters), during which they revealed abuse from their parents. She described her ethical dilemma in revealing these confidences through her affidavit, but had been convinced it was necessary to assist her son counter the accusations against him.
54.[Ms H], supported by her husband (who described how [the father] had been with him from the age of five), became quite emotional in commenting on how distressing the sexual abuse accusations had been for [the father], on top of many other accusations over the years. They declared their son “lived for his child”. Indeed, [Ms H] added that the father “loves the child too much” in the sense of being overly generous (even spoiling [Y]) and designing his whole life around [Y].
55.[Ms H] also commented on how [Y] would routinely kiss her ‘bindi’ (a cultural ornament on her forehead) in imitation of the father, whose tallness apparently led him to kissing her there frequently. She claimed that [Y] often called the ‘bindi’: “balls”.

Mr V described Y as “bubbly, vibrant, excitable, energetic and very easily distracted”. He referred to Y as being pleased to see his grandparents and the father and being very warm and affectionate towards them. His report indicated that:
… There was not a hint of any reservation or hesitation from [Y] in engaging with his father around their play or exchanging affection which was principally warm hugs and embraces. It all seemed to be highly appropriate and very gentle. … (See paragraph 61 of the report).
Paragraph 64 of Mr V’s report states:
“64.With his mother, [Y] was warmly energetic and affectionate too. They appeared to have a strong bond and very positive relationship. [Y] beamed smiles around her and responded cooperatively to her directions. The mother appeared at ease allowing [Y] to run backwards and forwards to visit his grandparents and father (all of which was supervised by me).”
In his evaluation in the report commencing on page 11 and continuing through to page 15, Mr V concluded that due to the inherent and enduring conflict between the parents that it was unwise for an equal time arrangement to eventually be put in place. (Paragraph 78).
At the time of this report in June 2011, Mr V could not be aware of the proposal of the mother that there be equal shared parental responsibility and shared 50/50 time (being the submissions the mother put to the Court during the trial and at the end of the trial). This was similar to the proposal that the father put to Mr V in June 2011.
In his report, Mr V recommended that if there was a finding of no unacceptable risk in the care of the father that there be a graduated period of months of time for Y with the father before including regular overnight time.
Paragraph 78 concluded:
… In due course, perhaps an alternate weekend arrangement (which could be for three or four nights) for [Y] with his father could settle into place. It would be better to minimize [Y’s] movements between the parents in such a schedule.
In his oral evidence the Family Consultant confirmed that he had no concerns about the father’s behaviour with Y during the observations. He confirmed his belief that due to the conflict between the parents he would not recommend equal time.
Mr V was then asked to listen to the tape-recording of the mother’s questioning of Y. When cross-examined in relation to his views after he had heard the tape, Mr V said that if the mother’s questioning of Y had been deliberately designed to obtain the comments of Y, this would cast a shadow over his assessment. He said however that it appeared the mother was wanting to “get to the bottom of things in the wrong way”.
Notwithstanding his concern about the mother’s method of questioning Y about the sexual abuse, Mr V maintained that moving the child from the care of the mother would be too dramatic for Y emotionally.
Having heard all the evidence I am satisfied that the evidence has not established to the necessary standard of proof that the father has sexually abused Y or that the paternal grandmother has sexually abused Y or was aware of any sexual abuse of Y.
Further I am satisfied that the evidence does not establish to the necessary standard of proof that there is any unacceptable risk of abuse of Y in the care of the father.
I take into account the detailed submissions of the Counsel for the father in which he drew attention to the combination of the factors from the history of the relationship between the parties, the history of litigation and the timing of the allegation of sexual abuse (the night after the father refused to allow the mother to take Y to East Timor) and the independent witnesses’ expressed concerns.
Some of the mother’s evidence was not convincing and some of the mother’s evidence was inconsistent.
When considering the mother’s failure to cross-examine the father and his witnesses on certain topics and the mother’s failure to call witnesses who might have been able to support her case, I take into account the mother’s social background and the fact that she was unrepresented throughout the trial.
Having considered carefully the evidence of the mother (as it appeared in her affidavit and at the commencement of the trial, together with her evidence after listening to the oral evidence of various witnesses) and the evidence of the other witnesses the father has not established, to the necessary standard of proof, that the mother has psychologically or emotionally abused Y by knowingly encouraging him to make false allegations about his father and paternal grandmother.
Considering the background to the allegations and the history of the proceedings the father’s inability to accept the mother’s change of attitude is understandable. The Court must however make a decision based on the assessment of the evidence to come to a conclusion and make orders which are in the best interests of Y.
It is the Court’s finding that the mother has inadvertently influenced the child to make the allegations of inappropriate behaviour by the father and his family, but she has not deliberately done so.
The allegations concerning the mother’s sexual behaviour with her sister are not significant in determining Y’s best interests nor was the necessary standard of proof met. The Court makes no finding in that regard.
Other relevant matters will be considered hereafter when discussing the factors required to be considered under section 60CC.

Presumption of equal shared parental responsibility when making parenting orders (section 61DA)

Section 61DA establishes the “presumption of equal shared parental responsibility when making parenting orders”.
The presumption however may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
At the interview with Mr V in June 2011 the father was proposing equal shared parental responsibility and a “fifty/fifty” shared care arrangement. At the time of the trial he sought sole parental responsibility. The mother was prepared to agree to equal shared parental responsibility.
At the conclusion of the trial a Consent Order was entered into by both the mother and father, that pending the delivery of the judgment, there be equal shared parental responsibility.
Whilst the history of the allegations of sexual abuse and the past acrimonious relationship between the mother and the father may establish a basis upon which the presumption could be rebutted, this is contradicted by the parties Consent Order on an interim basis immediately after the trial.

Section 60CC matters

When considering what is in the best interests of Y, the Court must consider the primary considerations in s 60CC (2).
The first primary consideration is:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
The mother now proposes that Y maintains a meaningful relationship with the father by spending equal time with him. This proposal would enable Y to re-establish his relationship with his father and at the same time maintain a meaningful relationship with both his mother and the extended family.
The proposal of the father for Y to live with him primarily and spend alternate weekends and half school holidays with the mother is a proposal which may challenge Y’s continued meaningful relationship with his mother. The evidence of the experts indicates that the relationship between Y and his mother is a strong emotional attachment. Y has been primarily in the care of his mother since his birth.
The Act also requires the Court to give serious consideration to both parents having substantial and significant time with the child if that is in the child’s best interests.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court’s findings are that Y has not been the subject of sexual abuse by his father or extended family. The Court also finds that the mother has not deliberately, emotionally or psychologically harmed Y by encouraging any allegations of sexual abuse by his father. The mother now regrets her inadvertent behaviour.
The behaviour of both the mother and father was found by NTFAC to be emotionally abusive of Y because of the way that Y had been drawn into the conflict between the parents and the ongoing litigation.
An arrangement whereby Y spends equal time with both of his parents is likely to reduce the risk of further emotional abuse.
The additional considerations the Court must consider are set out in s 60CC(3)

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

At the time of the trial in September 2011, Y was aged seven. His views therefore need to be given consideration taking into account his young age. Mr V’s evidence of the happy relationship between Y and both of his parents supports the views which Y expressed at school that Y wants to be with both of his parents and for them to stop fighting about him.

(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);

The mother has been Y’s primary carer since his birth. Y has lived with his mother and spent only limited time with the father since the allegations. The relationship between the mother and Y is described by the experts as close and loving. The observation of Mr V during the family assessment in June 2011 suggested that Y also had a warm relationship with his father and grandparents.

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

The father proposes that the mother spend only limited time with the child. This is based upon his view that the mother has deliberately coached the child to make false allegations against him.
The mother originally sought that the father have only supervised time with the child based upon her belief that the child had made allegations of sexual abuse involving the father and paternal grandmother.
During the trial the mother however indicated a willingness to share parental responsibility with the father and have an arrangement whereby the child lived equal time with each of the parents.
At the conclusion of the trial both parties consented to an order that pending delivery of judgment they have an equal shared parental responsibility and a shared care arrangement.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The mother proposed at the conclusion of the trial that the interim arrangements pending the judgment should be continued on a permanent basis. The father proposed that after the judgment the child should reside primarily with him spending limited alternate weekend and half school holidays with the mother.
The Court accepts the evidence of the expert witnesses that the father’s proposed arrangements would be a significant change and likely to be disruptive for Y bearing in mind the long term relationship which has existed between the mother and child.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

The Court was not asked to take this into account at a significant level. The parties proposed arrangements for handovers which would reduce the risk of Y being subject to further emotional or psychological conflict.

(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The mother’s initial reaction to her concerns about the child and the inappropriate questioning of the child are factors which call into question her capacity to provide for the emotional and psychological needs of Y. Her willingness to change her attitude when faced with the expert evidence reduced the criticism which could be made of her past behaviour.
The mother’s care of the child in the past indicates that she has the capacity to provide for the day to day needs of the child on a practical and educational level.
The father has not had an opportunity to demonstrate whether he has the necessary capacity to provide for the child’s day to day needs. However he has the support of his family.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

Y is young. Ms K was not now concerned about any developmental delay.
Both parents and extended family are able to involve Y in the appropriate family background and culture.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

The mother’s behaviour indicated that she was concerned to ensure that Y was protected from any harm. The father has also indicated an appropriate attitude to protecting Y. However, both parents have at times behaved in a way which supported the conclusion by NTFACS that they have caused emotional harm to the child by involving the child in their ongoing conflict.

(j)any family violence involving the child or a member of the child's family; and
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

The evidence of the mother did not establish that issues of family violence were factors to be considered now when determining Y’s best interest in the future. The Court is not aware of any family violence order.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The history of proceedings in the Federal Magistrates Court and in this Court indicates that for most of the child’s life there has been litigation between his parents concerning him.
The proposals of the mother for equal shared parental responsibility and shared equal time with the child (which mirror the consent interim orders pending judgment) are more likely to discourage the parties from further proceedings than an order which restricts the mother’s time with the child.

(m)any other fact or circumstance that the court thinks is relevant.

The interim orders that were made by consent pending judgment are significant orders. Those orders provide detail about the parties obtaining assistance for themselves and the child and the ongoing involvement of Mr R.
The interim orders which were made by consent have now been in place since the end of September 2011.

Conclusion

When considering all of the evidence in the context of the necessary considerations of Part VII of the Act it is in the best interests of Y that he continues to enjoy a meaningful relationship with both of his parents and his extended family. His parents should obtain necessary assistance to reduce any risk of further emotional harm to Y due to ongoing conflict between his parents.
For the above reasons therefore the Court proposes to continue the arrangements whereby there is equal shared parental responsibility and that Y live one week with his mother and one week with his father. Other supportive orders set out in the Consent Interim Orders are also in the child’s best interest.

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 April 2012.

Associate:

Date: 23 April 2012

[2012] FamCA 255

23 April 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies