Menzies and Drew

FAMILY COURT OF AUSTRALIA

MENZIES & DREW

[2013] FamCA 41

FAMILY LAW – CHILDREN – where allegations of sexual abuse of the child by the father – where the child is presently aged 4 years – where the child has spent limited time with the father and no unsupervised overnight time – where the mother alleges that there is no benefit to the child having a relationship with the father – where there are significant concerns that the mother and the maternal family will not facilitate a relationship between the child and the father – whether the father poses an unacceptable risk of harm to the child – where finding that the father does not pose an unacceptable risk of harm – whether it is in the child’s best interests to spend time with her father – where orders made for time between the child and father on a graduated basis leading to unsupervised overnight time.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004

AIF & AMS (1999) 199 CLR 160
Cotton & Cotton (1983) FLC 91-330
U & U (2002) 211 CLR 238

APPLICANT:

Mr Menzies

RESPONDENT:

Ms Drew

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Kawyer & Migration Agent

FILE NUMBER:

BRC

9113

2009

DATE DELIVERED:

24 January 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

23 January 2013

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr Cooper of Cooper Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Lyrene Wiid Lawyer & Migration Agent

Orders

Parental Responsibility

It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of K (born … December 2008) (“the child”).
That the mother shall have sole parental responsibility in respect of all “major long-term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father (Mr Menzies, born … 1963) in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision; and,
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in her care.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in his care.

Live With

The child live with the mother.

Spend Time With

The child shall spend time with the father as agreed in writing between the parties or, failing agreement, as follows:
(a)       Until 30 June 2013:
(i)For three hours one day per fortnight at the B Contact Centre with the first and last 30 minutes of that time being spent at the Contact Centre and the intervening two hours being spent at D Park in Town B or such other nearby place as might be agreed to between the father and the Manager of the Contact Centre.
(b)       From 1 July 2013 for a period of 12 months:
(i)From 9:00am until 5:00pm each alternate Saturday.
(c)       Until the child commences Grade 1:
(i)From 9:00am Saturday until 5:00pm Sunday each alternate weekend; and,
(ii)Four consecutive days in the gazetted Easter, June/July, September/October and Christmas/New Year school holidays.
(d)       From the time the child commences Grade 1:
(i)From after school Friday until 5:00pm Sunday each alternate weekend.

Holiday time/Special Occasions

The child shall spend time with the father from the time the child commences Grade 1:
(a)For the first half of the Easter, June/July and September/October gazetted school holiday periods every odd year and the second half in every even year;
(b)For two consecutive weeks in the Christmas/New Year school holidays with such time to:
(i)Conclude at 12:00 midday Christmas Day every odd year; and,
(ii)Commence at 12:00 midday Christmas Day every even year.
As and from the time the father commences spending unsupervised time with the child in accordance with these orders and in the event that the father is not otherwise spending time with the child, the child shall spend time with the father:
(a)From 3:00pm (or after school) until 6:00pm on the child’s birthday.
(b)From 3:00pm (or after school) until 6:00pm on the father’s birthday.
(c) On Father’s Day from 9:00am until 5:00pm.
As and from the time the father commences spending unsupervised time with the child in accordance with these orders and in the event that the mother is not otherwise spending time with the child, the child shall spend time with the mother:
(a)From 3:00pm (or after school) until 6:00pm on the child’s birthday.
(b)From 3:00pm (or after school) until 6:00pm on the mother’s birthday.
(c) On Mother’s Day from 9:00am until 5:00pm.

Changeover

Changeover for unsupervised time between the father and the child shall occur at a location as agreed in writing between the parties or, failing agreement:
(a)At the commencement (if the child is not attending school) and conclusion of time, changeover shall occur at the Town B Contact Centre with both parties sharing in any costs and/or fees associated with using the facility for this purpose.
(b)If the child is attending school when time commences with the father, changeover shall occur at the child’s school.

Communication

The mother shall initiate telephone communication between the child and the father at a time between 5:00pm and 6:00pm each Wednesday as and from the time the father commences spending unsupervised time with the child.
When the child is spending time with the father during the gazetted school holidays, the father shall initiate telephone communication between the child and the mother at a time between 5:00pm and 6:00pm each Wednesday.
Both parents shall facilitate telephone communication between the child and the other parent at any reasonable time requested by the child.

Provision of Information

Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise the other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;
(b)Speak to, and receive oral or written communication from, any school, childcare centre or other educational institution, attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;
(c)Keep the other party appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;
(d)Notify the other party as soon as reasonably practicable should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

Publication of Proceedings

Pursuant to s 121 of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer, the solicitor for the mother or the father be permitted to publish a copy of these proceedings, specifically a copy of these Orders and the Reasons for Judgment delivered contemporaneously with them, to the Director of the Department of Communities, Child Safety and Disability Services or such other authorised person nominated by the Director.

Parenting Course

Within one month of the date of these Orders, each of the parties shall enrol in a recognised Parenting Course.
Each party shall provide to the other (or their legal representative as the case may be):
(a) Proof of their enrolment within 14 days of enrolling; and,
(b)Proof of their successful completion within 14 days of completion.

Miscellaneous

All extant applications be dismissed.
The Independent Children’s Lawyer be discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
Pursuant to s 65DA(2) and s 62B, Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Menzies & Drew 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 BRISBANE

FILE NUMBER: BRC 9113 of 2009

Mr Menzies

Applicant

And

Ms Drew

Respondent

REASONS FOR JUDGMENT

K (born in December 2008), (“the child”) is the subject of competing applications by her parents for parenting orders. The child’s parents had a very short relationship lasting only a few months during 2008. Their relationship was highly conflictual. It remains so. The mother says that she sees no benefit to the child in her having any relationship with her father. She concedes that she does not, nor will not, promote a relationship between the child and the father, although she says she will comply with court orders.
The high level of conflict between the parties has seen behaviour on the part of the father that I regard as intimidating and aggressive. It has also seen the father subjected to an ugly and very serious incident of violence at the hands of the maternal uncle and an accomplice that saw the father hospitalised and the perpetrators jailed.
The circumstances in which the child finds herself gives rise to the question of whether it is in her best interests that she, in effect, know and be cared for by only one of her two parents. If such a decision is made, it will be because the evidence points to that situation prevailing over the statutory principle that the child has rights to which such a decision would run contrary: the right to know and be cared for by both of her parents and the right to spend time on a regular basis with both of those parents.
Also, such an order would mean that the child would not benefit from both of her parents having a meaningful involvement in her life, which is one of the objectives of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The mother asserts that the father presents a number of risks to the child. She says, in effect, that conflict arising from the interaction of the parents, the parents’ respective characteristics, including, on her part, her unwillingness to promote and support a relationship between the child and her father, her belief that he presents a sexual risk to the child and her contention that the father’s physical disabilities and what she asserts to be his domineering, aggressive personality and incapacity to control his anger, all combine to produce the result that time between he and the child contains more detriments to her than the benefits inherent in the rights she would otherwise enjoy.
The father denies that he presents any risk to the child, either as enumerated by the mother or at all. Although both unrepresented and unsophisticated in approach and language, he argues, in effect, that orders which give effect to the child’s rights and the objects of Part VII are in her best interests. Expressed in words to the effect of, “I just want to see her and for her to know me and take her to New Zealand, so she can see my family.”

What Orders are said to be in The Child’s Best Interests?

In her Case Information document, the mother seeks orders that, in essence, would see only supervised time between the child and her father and “…no more frequently than once per fortnight.” Implicit in the orders sought is that supervision would be indefinite. At the end of the trial, it was submitted on the mother’s behalf that the father would spend no time with the child.
The father contends, in his Case Information document, filed on his behalf at a time when he was represented, for an order that the child live with him with specified time with the mother. In oral evidence and in submissions, the father said, variously, words to the effect that he “doesn’t want to take [the child] away from the mother”; that this was never what he wanted, and that the written proposal was “just something his lawyer put in”.
The father’s application is, then, to spend time with his daughter. Confronted with the Independent Children’s Lawyer’s (“ICL”) written proposed orders, the father said he “could see nothing wrong with them”; he would “be happy with those orders”.
The orders sought by the ICL are predicated upon a finding sought by her that the father does not present an unacceptable risk of harm to the child. Those orders seek, in effect, that the child live with the mother and spend time with the father, graduating from time on Saturday between 9am and 5pm for the next 12 months until she turns six, with time then occurring from after school Friday to 5 pm Sunday each alternate weekend. Other orders are sought by the ICL in respect of what is called “non-denigration”, and in respect of the provision of “information”, the latter referring to the parents keeping each other appraised of residential addresses and telephone numbers and providing information as to medical emergencies, the provision of school reports and the like. The father took no objection to those orders. Some similar orders are contained in the mother’s Case Information document, and otherwise the mother’s legal practitioner did not address them.

Parental Responsibility

The ICL also seeks an order for equal shared parental responsibility in respect of major long-term issues. I do not consider that such an order is in the child’s best interests. The presumption prescribed by section 61DA of the Act is rebutted accordingly (section 61DA(4)). My reasons for so concluding follow. I have already referred to uncontroversial aspects of the evidence. The parents’ relationship was brief and conflictual and their post-separation interaction – to the extent that it has existed at all – has been very highly conflictual.
Both parties concede that they have no current communication, and the mother has made it plain that she has no desire to have now, or in the future to facilitate, any such communication. The mother has also made it plain that she will not support the relationship between the child and her father. The prospects of these two parents who, as will later be seen, I assess as each being unsophisticated, damaged, insightless and immature, attempting to discuss, let alone agree upon, aspects of the child’s care, I assess as negligible.
Parental responsibility is defined in the Act to mean “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Save as the Court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that, save as is expressly ordered, but the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined; it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of cooperation, respect and agreement attend consensual post-separation parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is – for a variety of reasons, some borne of necessity, others not – by no means always, or even frequently, shared equally.
The Act (section 65DAC) makes it clear that sharing parental responsibility in respect of the defined “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Carrying out those tasks and obligations on what might be a regular basis, particularly when, as here, there is very significant conflict between the parties, carries with it potential significant difficulties, particularly given the child’s tender age.
Equally, though, an order for “sole parental responsibility” in favour of a party (as is sought here by the mother and as is frequently sought as an alternative to either the sharing of parental responsibility or equal shared parental responsibility) means, at least arguably, that the party has no rights, responsibilities and authority in respect of “major long-term issues” for the children, save as expressly ordered (decisions in respect to day-to-day issues are specifically provided for – see note to section 65DAE(1)).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, as it seems to me, a very significant step, being a very serious interference with the fundamental rights otherwise enjoyed by that person and responsibilities otherwise entrusted to them by reason of the fact of parenthood alone (see section 61C).
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the child. But the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant (see, for example, AIF & AMS (1999) 199 CLR 160 and U & U (2002) 211 CLR 238).
Those considerations can, in my view, be resolved in favour of a result in the child’s best interests by, according to one parent the ultimate decision, but only after having provided to the other parent the opportunity for input and to have given consideration to that input if offered. I will make such an order here.
Here, as will be seen, the father has had little involvement in the child’s day-to-day care. It will also later be seen that the child’s mother is the person best placed to make the ultimate decision in respect of those long-term issues. In that respect, I accept Ms J’s (the single expert and the writer of two reports) opinion as to the current attachment between the child and her father.

Meaningful Relationship and its Role

The Court is compelled to consider the benefit to the child of having a meaningful relationship with both of her parents (section 60CC(2)(a)). I am acutely aware of what Nygh J said almost 20 years ago in Cotton & Cotton (1983) FLC 91-330 at 78,252-3. Those comments were made well prior to the particular considerations to which reference is being made, being contained specifically within the Act.
His Honour said:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated …
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child - it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.

The matters there expressed, with his Honour’s usual erudition and elegance, provide, in effect, the foundation for the arguments by the mother earlier expressed.
Of those matters, the Primary Consideration to which they must now mandatorily relate, and the Additional Considerations by which best interests are mandatorily to be determined, occur within a statutory framework to which reference must be had and which will be referred to in more detail later. That statutory framework, however, provides support (subject to specific findings about best interests) for the father’s argument. The Act’s Objects and the Principles by which they are met enshrine the child’s rights, earlier identified (section 60B) and seek to “ensure that [the child’s] best interests are met by reference to the stated objects which envisage a role for both parents”.
The mother’s case that there should be no face-to-face time between the child and her father occurs within a context of other orders by which the mother seeks sole parental responsibility (subject to notifying the father in writing of any decision she has already made) and no orders are sought for other communication between the child and her father (save that the mother, by her proposed orders, undertakes to advise the father of illness or accident and school reports and the like). The attachment between the child and her father is, in the opinion of Ms J, and I so find, fledgling. There will be on the mother’s case, then, no opportunity for the child to know her father at all.

Considerations and Issues in Context

Magellan Report – July 2012

Significant dysfunction attends both parties and their relationships. In a report produced by the Department of Communities, Child Safety and Disability Services (“the Department”) pursuant to section 69ZW of the Act, the Department notes:
The Department has recorded a total of six Child Concern Reports and two Intake Enquiries in relation to [the child] as a subject child and other child since August 2008. The department also has a substantial child protection history in relation to Child A [E, the oldest child of the mother and a child of Mr H], Child B [M] and Child C [N] [each of whom are children of a subsequent partner of the mother’s, Mr A] which predates [the child’s] birth, consisting of a total of four Child Protection Notifications, 11 Child Concern Reports and one General Enquiry…
The report indicates that the Department has received notifications regarding alleged sexual abuse in respect of each of the mother’s other daughters, M and E.
In terms of the child, the mother alleges that on 4 October 2011 (one day after the child had spent time with the father, pursuant to orders, unsupervised at a park near the contact centre the parties were using) the child said she had a “sore wee wee” and that it was sore because “[An abbreviation of the father’s first name-Dad] [the name the child apparently uses for the father, at least on some occasions] had smacked it”.
The mother took the child to Dr C (a general practitioner) who reported that the child’s “vulval area was swollen and very inflamed” and that she was “very concerned that some activity of a sexual nature may have occurred”. The mother subsequently took the child to Town B Hospital on 7 October 2011 where paediatrician, Dr F, “partially” examined the child (only partially due, apparently, to the child’s distress) and reported back to the Department on 17 October 2011 that there “...was no evidence of acute trauma to the external genitalia in the form of abrasion, contusion or swelling; there was no bleeding or discharge from the vagina.”
The Department determined that the concern reported did not meet the departmental threshold for further investigation and assessment.
The allegations made in respect of the mother’s two older daughters and those made in respect of the child bear a remarkable similarity despite the fact that each of those allegations are apparently at the hands of different people, not the father (there is no suggestion that the father has been a perpetrator of abuse in respect of either of the mother’s other two daughters previously referred to).
Specifically, in 2001 the Department received a child concern report in respect of E (then aged 3) indicating that the mother was concerned that E had been sexually abused as she was “sore”. The doctor “indicated that there was some irritation which could be suggestive of abuse”. It is not apparent from the evidence before me who was alleged to have abused E, but plainly it was not the child’s father. “No further action” was taken by the Department.
In 2008 the Department received a notification that M had said that E had “hurt her wee wee”. In 2009 a Child Concern Report was noted in respect of M. The notifier indicated that Mr A, the father of M and N, had “...advised that [M] had complained about having “a sore wee wee” and indicated that she was red, raw and smelly…”
That same report indicates that M’s father had previously made allegations of both of his children complaining of a “sore wee wee”. In each of those cases, the Department determined either to take no further action or, upon investigation, concluded that the allegations were unsubstantiated. Of some significance, however, the Department did determine on two separate occasions in 2005 that E and M had been harmed as a consequence of exposure to domestic violence between the mother and Mr A.
As an indication of the degree of the violence that these two young children were exposed to, the mother reported that Mr A had tried to “rape [her] and force his penis in her mouth in view of the children” (who were then aged approximately six years and six months respectively). The Department later determined (in 2007) that there was a substantiated risk of emotional harm in respect of M and N with both the mother and Mr A identified as being responsible.

Sexual Abuse Allegation with Respect to the child

The mother had, until the second day of trial, sought a finding that there is an unacceptable risk of sexual abuse of the child at the hands of the father. On the second day of the trial, her legal practitioner advised the Court that, having taken instructions from the mother, that finding was no longer sought. It was said by him that the mother was of the view that “the preponderance of the evidence” was to the effect that a finding to that effect would not or could not be made by the Court.
Despite this, it is contended that the mother still genuinely believes the father to be a paedophile and it is said this belief may, as Ms J speculates in her reports, be productive of further allegations by the mother in the future. This, it is said on her behalf, is a risk of emotional harm to the child which the Court would avoid by not ordering time. The allegation once made should be dealt with as the serious allegation that it is. Indeed the Family Law Rules 2004 contemplate just such an eventuality (see, for example, rule 10.15A). I propose to do so, notwithstanding the instructions of the mother, advised to the Court by her practitioner.
Until about September or so 2011, it is common ground that the father had spent very limited time with the child and such time was supervised at the Town B Contact Centre. It seems that at about that time the mother became aware of allegations made by a former partner of the father (Ms W) that her child (now an adult) had been the subject of sexually improper behaviour at the hands of the father. It transpired that affidavits were filed on behalf of each of Ms W and her now adult daughter.
The Court was advised that despite the issue of a subpoena, it had not been possible to serve either Ms W or her daughter, and that as a result neither would be available to give evidence in the proceedings. Given the seriousness of the allegations made within those affidavits and their role, at least according to the mother’s evidence, I determined to exclude those affidavits pursuant to section 135 of the Evidence Act1995 (Cth), because I consider the circumstances just referred to, and the potential for prejudice to the self-represented father, outweigh their probative value in circumstances where the deponents were not available for cross-examination.
There is no evidence before the Court, then, save for the mother’s hearsay account of what was told to her about that alleged behaviour. Court orders saw time between the father and the child becoming “partially” supervised in September 2011. The use of the word “partially” refers to the fact that time commenced and ended at the Contact Centre, but was otherwise enjoyed for a short period at a park in the vicinity of the Contact Centre and the time at the park was unsupervised. The first visit fitting that description occurred on 19 September 2011.
On the second of those visits, which occurred on 3 October 2011, the mother alleges that following it (on 4 October 2011) the child disclosed “I’ve got a sore wee wee”, and at that time clutched her crotch. The mother then asked the child if she had bumped it outside, and the child allegedly said, “No, [an abbreviation of the father’s first name] smacked it and hurt it…[an abbreviation of the father’s first name] smacked it. He’s naughty.” That is the account given in the mother’s affidavit filed 10 April 2012 (at [10]). The father denies that this or anything like it occurred at the time and in that way.
The Contact Centre notes which form part of exhibit ICL3 do not record any disclosure of any type made by the child on that day. Furthermore, those same notes do not record that the child was distressed in any way or form on that day. Importantly, though, those same notes do record that on that day “[w]hen [the father] was about to leave, [the child] stated, ‘I don’t want you to to go.’ [The child] gave [the father] a hug before leaving.”
Such evidence as exists, independent of what the mother says the child said, indicates that the child exhibited no distress whatsoever on 3 October, the date upon which this alleged incident occurred; nor did the child say anything that indicated in any way at all that anything untoward had occurred. The child was examined by a general practitioner. Her short report is exhibited to the mother’s affidavit. That report states “I am therefore very concerned that some activity of a sexual may have occurred,” having there recorded the observations of the child’s vaginal area made by the doctor.
The report does not indicate the nature, type or extent of the examination that was conducted, nor does it reveal whether any data or information was sought either from the mother or from the child that might have indicated an explanation other than that which the doctor posits.
Several days later, the child was taken to the Town B Hospital where she was also medically examined. As earlier indicated, the child apparently exhibited some significant distress at that time. The hospital, however, concludes that there is “no evidence of acute trauma to the external genitalia in the form of abrasion, contusion or swelling”, and as earlier referred to, also refers to the fact that there was no bleeding or discharge.
The child was subsequently interviewed by the police. The evidence before the Court indicates that the child had made disclosures essentially consistent with those reported by the mother (i.e. “[An abbreviation of the father’s first name]daddy smack me on the wee-wee”). Interestingly, however, the police closed their investigation and did not take the matter any further. The documents forming part of exhibit ICL3 contain this notation:
[V]ictim and mother attended … Police Station after attending the … ward at the [Town B Hospital] for an examination…[F]rom the … ward of the [Town B Hospital] [it was] stated that there was no evidence of anything at the time of the examination. Reporting officer made an attempt to start a 93a ICARE however the victim stated she was tired and wanted to go home. Therefore an appointment will have to be made in the near future. Informant participated in a pre text phone call where the suspect [i.e. the father] denied any wrong doing.
The notation indicates that the events there recorded occurred on 7 October 2011. The notes go on to record that, on 16 October 2011:
1430 hrs: victim and her mother (the informant) attended … Police Station. Informant provided a typed statement as a preliminary complainant. Victim participated in an ICARE and stated “[An abbreviation of the father’s first name]daddy smack me on the wee-wee” and very little else, the victim was not able to put incident into context, how and why the smack occurred. For this file to proceed to through the court the suspect [the father] would have to make admissions, otherwise there is not enough evidence. On the information gained in the ICARE, the victim would need to be assessed to be suitable to give evidence in court also prior to a charge proceeding and due to the only disclosure of value being, “[An abbreviation of the father’s first name]daddy smack me on the wee-wee”, given no context other than that the correct charge, whether it be indecent treatment or assault, is also not able to be determined. (Emphasis added)
In a similar vein, the investigation by the Department who were, it seems, notified of the matters just referred to, indicated that sexual abuse was not substantiated. The father denied on, it seems, two separate occasions, to the police (one in the pretext telephone call just referred to and the second, it seems on a subsequent occasion when police spoke to him) any involvement in any activity of the description referred to or, indeed, any like it.
He gave an account to them similar to the account given in the witness box, that is to the effect that he had to change the child’s nappy. He did so under supervision from a person called Ms G who was, it seems, an employee at the Contact Centre. The father explained that during the time he was changing the child’s nappy, he was told by Ms G that the child should try to go to the toilet before she and her father went to the park. The father said that when the child got onto the toilet, she sat on the front section of an insert used in the toilets to prevent small children falling into the bowl. The father said that the front section of the insert “went up her fanny”. He says he asked the child if she was all right and she indicated that she was. The father says he asked Ms G to pick the child up off the toilet.
Attempts to contact Ms G by the ICL either independently or through other workers at the Contact Centre were unsuccessful.
The explanation just referred to is the only explanation that the father can offer for anything that may account for what the child has said. Irrespective of the mother’s curiously stated position, I conclude that the child is not at an acceptable risk of harm of the type alleged at the hands of the father.

Mr H

The mother had what could only be described as a tumultuous relationship with Mr H. Mr H’s criminal history is in evidence (see exhibit ICL3). It commences with offences being committed at the age of 13, and is otherwise extensive. During the initial relationship between Mr H and the mother, a number of protection orders were sought and made against Mr H.
Notwithstanding this, the mother now deposes to “successfully” “coparenting” E – and indeed her other three children – with Mr H, although they apparently do not live together. A matter that assumes some significance in the post-separation events involving these parents is that, allegedly up to, and certainly following, the child’s birth the mother claimed that Mr H was the child’s father.
It seems that the mother’s asserted conviction that this was the case sounded in the child carrying Mr H’s last name and Mr H being listed as her father on her birth certificate (although orders have earlier been made to rectify this).
It was only upon the results of subsequently-ordered DNA testing carried out in early 2010 that the mother accepted that the child was in fact Mr Menzies’ biological child. Having said that, the family consultant, Ms R, who initially saw the parties and the child and prepared a Child and Parent Issues Assessment report in June 2010, reports that while the mother conceded to her that Mr Menzies was the child’s biological father, Mr H had been and continued to be perceived by the child as her “daddy”.
This was further confirmed in the first report of the single expert Ms J dated 7 May 2011 in which she records M and N stating “in definite terms” that the child and E shared a father (that is, Mr H). The promulgation or subsistence of this notion was therefore occurring as late as May 2011, that is, over a year after the DNA results had been received and time had been ordered between the child and her father.

Father’s Assault

The parties’ relationship subsisted for approximately four months (or six months as the father alleges) in early 2008. After that time their relationship disintegrated and the father concedes that he attended uninvited at the mother’s home, drove up and down the mother’s street on a motorbike, provided a motorbike to his friends to enable them to do the same and entered into her home on at least one occasion at which time he swore profusely and spoke in what I consider to be a highly aggressive manner towards the mother in the presence of at least one of the children and the mother (see exhibit M1).
The father also pleaded guilty (although he now says he was forced to do so by his legal representatives) to charges including common assault of the mother stemming from an incident at the mother’s home during which the mother says that the father poked her in the chest and clawed at her stomach (the mother was pregnant with the child at the time). A protection order was also made as against the father in early 2009. Shortly after the incident just described the mother’s uncle and an acquaintance perpetrated serious acts of violence upon the father. It is not necessary to traverse the minutiae of what occurred that evening, however, it is accepted that as a result of their conduct the uncle and his accomplice were charged with grievous bodily harm and torture.
It is also accepted that each were convicted of those crimes (among others emanating from the same incident) and sentenced to 12 years imprisonment as a consequence. They were declared “serious violent offenders”. Among the father’s injuries was “a depressed skull fracture of the left parietal bone and associated left parietal cerebral contusions and a small amount of subarachnoid and intraventricular haemorrhage” (see exhibit ICL3). As a result of his injuries the father spent approximately three months in hospital. It seems that the uncle and his acquaintance subsequently appealed their convictions and sentences. The outcome of that appeal is not apparent on the evidence before me, however, the father indicated during the proceedings that each of the perpetrators has now been released from prison.
In addition to the charges associated with the assault of the mother in or about October 2008, the father concedes in his affidavit filed 16 October 2012, that he “pleaded guilty to the offence of grievous bodily harm” in New Zealand (his country of birth) “approximately 20 years ago”. According to the first report of Ms J the mother claims that the father “had told her about two young men in New Zealand who had stolen jewellery from his mother. He put them in the boot of his car and drove around with them for hours before smashing their heads in with hammers …”.
Ms J reports that the father initially told her that “he had never been in trouble with the law, except for traffic offences in New Zealand where he had to pay a total of $10,000 when he was 28 years of age.” However, when “challenged” with the incident as alleged by the mother, the father “reluctantly … conceded … that he wrecked his car but had managed to push them off the side of the road. Beyond this he refused to say more … He had been charged with grievous bodily harm with intent … He got eight months periodic detention after he pleaded guilty.”

During cross-examination of the father by the legal practitioner for the mother he similarly “refused to say more” in respect of the incident in New Zealand. When confronted with questions regarding the incident the father, at least initially, refused to answer the question. In answer to later questions he said that he “could not recall” or “could not remember” the incident. Those answers are, in my view, untruthful.

Father’s Behaviour and his Objections to Evidence

The mother reiterated throughout the proceedings that she was fearful the father would act aggressively in front of or towards the child should he spend unsupervised time with her. The foundation for that “fear” the mother says is her experience of the father post-separation and reports from the Contact Centre which the parties had previously used to facilitate time between the father and the child. The ICL had obtained and sought to tender a bundle of documents which included documents from that Contact Centre. The father objected to my receiving a significant proportion of that evidence. The foundation for that objection was, perhaps understandably enough, not properly articulated.
It seems that it was founded essentially in his denial that the statements and conduct recorded in those notes had occurred as there depicted. He disputed accounts of conversations recorded in the documents in quotation marks by three different people employed by the Contact Centre and rejected their description of him acting aggressively. I allowed the documents to be tendered over the father’s objection, but indicated that given that no authors were available for cross-examination I would be circumspect in attaching significant weight to the information contained in them. Ultimately, I think it matters little. The father acknowledges clearly inappropriate behaviour towards the mother. He explains it as “a long time ago” when he was “depressed.” I reject his attempts to excuse this behaviour. More likely, as he himself effectively said in addressing the Court, he does not perceive his actions as loud and aggressive or intimidating but others might. I have little doubt that the Contact Centre workers did say it. In short, I consider the information contained in the tendered documents to be indicative of conduct engaged in by the father which he considers to be normal but which is perceived by those on the receiving end of that behaviour to be aggressive or hostile.
I raised this very suggestion with the father during his oral submissions. He said that “they [referring to members of staff at the Contact Centre] say that I am yelling and I don’t consider I’m yelling” (emphasis added). I have no doubt that conduct which the father considers to be appropriate and within the normal range of behaviours expected of a person in a situation similar to him may well be perceived as aggressive and threatening by those at whom the behaviour is directed. In this respect the mother tendered a video taken of the father whilst he was in the mother’s home whilst she was pregnant with the child in 2008 (exhibit M1).
This wholly self-serving evidence apparently captured surreptitiously (that is without the father’s knowledge or agreement) reveals behaviour on the part of the father in the presence of the pregnant mother, at least one of her children and the maternal grandmother, which I consider to be aggressive and intimidating whatever the father might think of it. The father may well seek to justify his behaviour because the mother had denied his paternity of her unborn child in circumstances where he asserts she had previously acknowledged his paternity of the child. However, I consider his behaviour as depicted in the video to be an example of behaviour which the father may consider “normal” but which I and, as the evidence reveals, many of those receiving it regard as aggressive and intimidating.

Effects, if any, of Assault on the Father’s Cognitive Capacity

The mother asserts that the father’s physical or mental disabilities resulting from the serious assault upon him put the child at risk. For example, she says that by reason of his physical disabilities he may not be able to run after the child if she runs toward a source of danger. One might think these submissions on the part of the mother not a little ironic given the cause of the father’s physical disabilities. In respect of the assertions of risk emanating from asserted physical disabilities, by his own evidence the father says that he continues to suffer from fatigue, pain, occasional forgetfulness, problems with his balance and some trouble walking or running. In answer to questions posed by the legal practitioner for the mother, the father indicated that he still has some difficulties with his ankle.
It is readily apparent on the evidence before me that the father continues to suffer from some impairments as a result of the assault perpetrated on him. However, I do not consider the evidence before me to be persuasive of any such disabilities resulting in problems such that they would present a risk to the child should he spend time with her. In that respect I accept the submission made by counsel for the ICL that there is no independent evidence which suggests that such physical impairments from which the father may suffer will compromise the father’s ability to parent the child to an extent that would result in there being an unacceptable risk to her.
The mother also asserts that the father suffers from cognitive difficulties as a result of that assault such that they might pose an unacceptable risk to the child. I reject that contention by her. The father underwent a neuropsychological assessment, the results of which are set out in a report of Ms I dated 8 February 2011. At paragraph 10.6 of that report Ms I opines that “[d]espite a direct injury to the left parietal lobe, comprehensive neuropsychological assessment did not identify any significant cognitive impairment. Based on these results it would appear to be the case that [the father] is capable of learning and retaining new information and modifying his behaviour when he encounters a difficulty and in solving novel problems.”

Father’s Characteristics

The father maintains that he is entirely capable of caring for the child generally and, specifically, overnight. That is so, he says, despite the fact that he has never spent time with the child overnight, nor for that matter spent anything but very short periods of time unsupervised with her. In this respect I have some concerns about characteristics of the father observed independently and at different times by each of Ms J and Ms R. Ms R’s Child and Parent Issues Assessment records “[i]t is true that my very brief observations [of the father and the child, who was then it might be noted aged 18 months] suggested that [the father] has some capacity to be child focused however I did question his capacity for patience and self control given his presentation during the interview…” Prior to making that observation Ms R reports the father stating when confronted with allegations that he had dealt with a child of his ex-partner in a sexually inappropriate manner, “…they better watch themselves … that makes me angry.”
Ms R also reported that the father “insisted (with loud angry tone) that I inform the Court that he has ‘waited long enough’ to see his child.” Ms J prepared two family reports in respect of the child. The first is dated 7 May 2011. In that report, Ms J makes the following observations in respect of the father
[87]…He has never previously had any children. He claims to have assisted raising children to previous partners but his information in this regard was limited and superficial…
[88] His affect is shallow. He and the child have no attachment with each other ..... I doubt if he has much understanding of small children…
I accept Ms J’s opinion as to attachment between the father and the child and to the characteristics there described. Her observations accord with my own impressions gained from reading the evidence and observing the father as he represented himself in the trial itself.
In her latest report dated 29 April 2012 Ms J opined:
[41]…[the father] has no significant parenting capacities. [If the child were to reside with him] [h]e would be learning to manage a child “from scratch”. While it is not impossible, the father’s age, lifestyle and cognitive capacities would render this very difficult.
…
[43] The Father needs to avail himself of parenting education.
During her oral evidence, Ms J was asked about what concerns, if any, she had about the father’s parenting capacities. Whilst she couldn’t see any physical impediment to the father parenting the child, Ms J did express concern, in the context of the father having the child “full time” regarding the father’s “very limited understanding” of the developmental needs of children (for instance, educational, social, emotional and physical needs).
However, Ms J did initially endorse orders proposed by the ICL (that is, graduated time leading to unsupervised overnight time and holiday time). Upon questioning from me directed to the issue of the means by which any time, supervised or unsupervised, might be facilitated as between the parties and the observations made by each of the parties and their conflictual relationship and how that might impact upon the child at and during the preparation for and during periods of time, Ms J appeared to change her ultimate opinion, or at least slightly.
I pointed out to Ms J a number of paragraphs in her first report which have, in my view, direct relevance not only to the statutory considerations but also to the central issues to be decided in the child’s best interests:
[56] Asked if she talks to [the child] about going to see her father, she said that she only tells her about going to visit [a worker at the Contact Centre] to play with her. It is my understanding that she has never told [the child] that [Mr Menzies] is her father.
…
[83] The mother and her family have closed ranks against the father since [he was assaulted by the mother’s uncle and his acquaintance].
[84] [The mother] believes that the father has paedophilic tendencies. Her “evidence” in support of this is negligible…
[85] The mother is unsophisticated. She has convinced herself that the father is a paedophile because she has been told this, and because she herself was sexually abused as a child and didn’t tell anyone for years. I have serious doubts about whether she will ever accept that this is not the case, no matter how many times she is told. She does not appear to be able to make satisfactory distinctions between fact and allegation.
[86] The mother’s rejection of the father is so total that she doesn’t prepare the child for seeing him. Instead she prepares her for seeing the Contact Centre supervisor. It is apparent that her household speak about the father’s “tendencies” openly in front of the children. The children believe that [Mr H] is [the child’s] father.
…
[89] In my opinion, there is a strong likelihood that further serious allegations will arise if [the child’s] contact with him ever becomes unsupervised.
…
Many of the statements made there as recorded by Ms J were confirmed by the mother in the witness box. She, in effect, makes no bones about the fact that she does not see any benefit whatsoever in the child having a relationship with the father, nor does she have any reservations, it would seem, about telling the Court that she will not support orders providing for a relationship between them. Having said that, the mother said in answer to direct questions that she would comply with any orders made in respect of time, and indeed the evidence would suggest in respect of her behaviour towards Mr A and to a lesser extent Mr H, that that is the case.
One might observe in that respect that although at one time Mr H was apparently a person about whom she was prepared to make serious allegations of violence, that relationship has, apparently, reblossomed.

Mother’s characteristics

Both Ms R and Ms J make observations of the mother which I consider to be directly relevant to the statutory considerations. In particular, both Ms R and Ms J repeatedly refer to the mother’s apparently implacable belief that the father is a “paedophile” and presents a risk of sexual harm to the child. I note specifically that Ms R reported:
7.2.7[The mother] claimed that [the father] is a paedophile and a rapist.
7.2.8…[The mother] is opposed to [the child] having any relationship with [the father] until she is older....she [does not] want [the child] to be placed at risk with [the father] in light of her beliefs about his [injuries stemming from the assault in October 2008], capacity for violence and paedophilia…
…
9.1…[The mother] did not agree to [the father] taking any photos of [the child]. She stated that she thought that he would later masturbate over them…
Ms R also interviewed Mr H:
7.3.2.…[Mr H] discussed that he was “disgusted that a Government Department would force two loving parents [I presume he refers to the mother and him] to hand their child over to a paedophile”. [Mr H] expressed concern that after [the father] met [the child] he would then be able to identify her in the community. [Mr Menzies] [sic] stated “we know he is a paedophile” and reported that he was very opposed to [the child] spending time with [the father].
In her first report Ms J noted the following:
[43] [The mother] said, “As far as we are concerned, [the child] is his ([Mr H’s]) child. He will always be her Daddy as far as we are concerned…as a mother and a protector of my children, I don’t think that it is the right thing to be handing my child over to a paedophile.”
Ms J went on to record, significantly as it seems to me:
[47] …[The mother] wept as she recounted her own childhood in which she was sexually abused by her mother’s partner between the ages of about 8 and 15 years…
In her second report dated 29 April 2012 Ms J noted:
[22] [The mother] is certain that the Father abused [the child]. She said that she had always had a premonition that something would happen…She doesn’t know how she would be able to support and facilitate [the child’s] relationship with him…
…
[37] It is beyond the scope of this Report to determine the motivation behind the Mother’s actions. There is a question over whether she raised this allegation deliberately in order to thwart the Father’s relationship with the child i.e. following the previous pattern of excluding him from their lives…
[38]…[T]here is a strong likelihood that the Mother will raise further barricades to hamper this father/daughter relationship.

Both Parents

As I think the above makes plain, both parents possess characteristics which, in my view, have the potential to have a significant detrimental impact upon the child. I assess each to be unsophisticated and immature and each to have made choices inconsistent with the responsibilities of parenthood. The mother in her choice of partners and exposing children to their violence, the father by behaving in an aggressive and overbearing manner and predominating his needs and sense of entitlement ahead of the child’s needs. The father has, I think, little insight into how his behaviour is not only unacceptable but also frightening for the child.
The mother has actively inculcated within the current family unit, and specifically in the child, a perception of the father as a predator who can offer no benefit to her. The emotional harm to the child is, I think, self-evident. During oral evidence Ms J said of both parents that they each lacked the capacity to place the child’s interests before their own “personal, vindictive views of each other”. I accept that opinion.

TheChild’s Attachment to her Father and the Time he has Spent with her

The father was in hospital at the time of the child’s birth in December 2008. The father states, and the mother concedes, that in late December 2008 the father’s legal representatives made inquiries of her regarding the paternity of the child. The father subsequently filed an Initiating Application in the Federal Magistrates Court in October 2009 seeking, among other orders, time with the child.
On 27 November 2009 Jarrett FM made orders joining Mr H to the proceedings and also ordered that the child undergo paternity testing.
The results of that paternity test were received in March 2010 and in April 2010 orders were made for supervised time between the child and her father for up to two hours once a fortnight. It is unclear on the evidence before me when precisely time commenced between the father and the child pursuant to those orders. Some delay was involved, I apprehend, while the parties participated in the intake process and waited for a position at the relevant Contact Centre.
During oral evidence the father accepted the suggestion of the legal practitioner for the mother that he had seen the child on approximately 22 occasions since those (and subsequent) orders were made. What is clear (from the mother’s affidavit material at least) is that the father had commenced spending time with the child pursuant to those orders by May 2011.
On the evidence before me it is not made expressly clear why orders made at that time were for supervised time, but I note that in the Child and Parent Issues Assessment prepared approximately one month after the orders were made, the mother and her partner repeatedly expressed the view the father was a paedophile and posed a risk of harm to the child as a result of his anger, injuries sustained during the assault in October 2008, and the fact that he was, according to them, a paedophile.
I also note at the time the orders were made the mother had prevented the father from spending any time with the child, who was then aged approximately 16 months, and had, until March 2010 denied the father’s paternity.
Further orders were made by consent by Jarrett FM on 13 September 2011 providing for time between the father and the child to occur partially supervised, in the sense that “the first and last half hours with the father” were to occur in the Contact Centre whilst the “middle hours” were to occur “at the enclosed play area at” a specified park which was apparently close to the Contact Centre.
As has been seen, the allegation of sexual abuse was made on the second occasion that that time occurred between the father and the child. The mother, unsurprisingly perhaps in light of what is asserted to be her beliefs about the father and what she asserts the child said to her, thereafter denied the father time with the child.
The father subsequently travelled to New Zealand between January 2011 and March 2012. Time between the child and the father recommenced supervised following orders made by Jarrett FM on 16 April 2012 requiring “each party [to] refresh their intake with the children’s contact centre”.
In light of that history, and the fact that, initially, all time between the child and the father has effectively been supervised, it is, in my view, hardly surprising that Ms J would accurately, as I find, describe the relationship between the child and her father as “inching along”.
In her second report which followed the allegations of sexual abuse, Ms J described the father as seeming to be:
31.…much more able to continue a banter with [the child] at this time and to suggest activities etc. He seemed to have found his stride, so to speak. I anticipate that he became more confident about relating with her through help from Contact Centre staff.
32.[The child] hardly spoke to [the father] – or to [Ms J] – during the session. It was clear however that she retains some memories of him. She affirmed recollection of a couple of particular times together.

During oral evidence Ms J described the attachment between the father and the child as “progressing” and still “inching along” despite “a lot of disruption” and the allegations. However, Ms J also opined that the father’s relationship with the child cannot progress “until the father spends unsupervised time with her”. According to Ms J “we can’t see any attachment grow when all we have is a maintenance mechanism [that is, supervised time] and there was no relationship before [supervised time].”

The Contact Centre Documents – Exhibit ICL3

The documents produced by the Contact Centre pursuant to subpoena and contained within the bundle of documents comprising exhibit ICL3 include a number of “facilitated contact observation sheets”. They outline, among other things, the interaction between the child and her father on various days.
Counsel for the ICL submitted that those documents provided evidence that the child enjoyed spending time with her father. The solicitor for the mother, Mr Cooper, however, submitted that they were redolent of the “predominance” of the enjoyment experienced by the child at the Contact Centre stemming from her interactions with staff and activities rather than with, or because of, the father.
I do not accept that submission. Within the context of a disrupted relationship and of an attachment that is “inching along”, the notes plainly reveal, in my view, that the child enjoys engaging in activities at the Centre, but also that the child enjoys spending time with her father. As but a couple of instances:
20.7.2012. While [the father] was sitting in the sandpit, [the child] asked the facilitator to play on the playground. [The child] became animated...[the child] was smiling and would shout out instructions…[the child] appeared unaffected when facilitator stop [sic] playing, and was willing for [the father] to take over from facilitator, as he had come over from the sandpit to join in on her game. [The child] continued on with her game.
3.8.2012. [The child] was happy to play outside and inside and was willing for [the father] to play with her. [The child] was overheard asking [the father] to sit next to her on several occasions.
29.8.2012. [The child] expressed her disappointment when the visit was over, and said “Can’t you play longer?”…[The father] initiated goodbye and asked for a hug which [the child] gave to [the father]…[the child] went to wave [the father] off.
Further, while, for example, the notes reveal that on 3 August 2012 the child “continues to paint [upon her father’s arrival]…”, the notes also record similarly in respect of the mother’s arrival “[the child] acknowledges [her mother] by smiling but continues to play with the pool table.”

Summary of Statutory Considerations

The preceding examination of the issues in this case and their context can be seen to plainly involve a consideration of the Primary and Additional Considerations which the Act mandates must be considered by the Court, as relevant to the circumstances of the case, in determining the child’s best interests.
I have concluded that the father does not present an unacceptable risk of sexual harm to the child. There is the potential for emotional or psychological harm. I consider that likely to emanate from the continued denial by the mother of a role for the only father the child will ever have. I consider it is likely to emanate from potential conflict between the parties and their respective lack of insight and capacity to predominate the needs of the child over their own conflict. I accept the opinion of Ms J earlier quoted in that respect. I do not consider that any physical disabilities of the father present an unacceptable risk to the child. I reject the mother’s contention that the father has cognitive disabilities or issues that might present a risk to the child (section 60CC(2)(b)).
The identified risks need to be weighed against the benefit of the child having a meaningful relationship with her father (section 60CC(2)(a)) seen in the context of the Act’s Objects and Principles which enshrine rights vested in the child (as distinct from her parents) (see, section 60B) I consider there is a benefit to the child in having a meaningful relationship with her father. To the extent that the Act’s two Primary Considerations can be seen to be in conflict, I consider that the benefit to the child of a meaningful relationship with her father outweighs the identified risks of harm with the consequence that time between the child and her father should be ordered.
The child is too young to express any views in the sense that those views might be seen to be directly determinative of orders that are considered to be in her best interests (section 60CC(3)(a)).
Despite the interrupted and erstwhile nature of the relationship between the child and her father and the attenuated nature of the current attachment, I consider that an attachment does exist and should be developed if the child is to know her father as I consider she should. Despite the submissions to the contrary on behalf of the mother, I consider failures by the father to avail himself of time are explicable (a holiday to New Zealand where his close family lives), or primarily the consequences of his assault and Court orders (section 60CC(3)(b)(c)).
The orders that would see the child spend any unsupervised time with her father away from the Contact Centre will, obviously enough, involve changes for the child. So much is axiomatic, however, this child is a child, as it seems to me, who has already experienced and coped with a number of changes, not least of which is the ongoing nature of the relationship with Mr H and the fact that she lives in a household with a number of other siblings of varying ages with different fathers whose time with them needs to be accommodated (section 60CC(3)(d)).
In my view, there are no practical difficulties or, more accurately, there are no practical difficulties that will stand in the way of time occurring. In that respect the geographical separation of the parties is not such as to provide significant difficulties. I note in that respect that the mother, according to the evidence before me, facilitates time between two of the children and Mr A which requires the mother to drop off and collect the two children in Town T each alternate weekend and which involves significantly more practical issues in terms of travelling and the like than the facilitation of time in this instance. To the extent that there are practical difficulties associated with the attitude of the mother earlier described, the mother swears that she will comply with Court orders, and the evidence before me is that despite the tumultuous history with previous partners, she has done so by firstly facilitating time with Mr A as just mentioned, and secondly by apparently, at least on her evidence, facilitating a “co-parenting” relationship with Mr H, despite what might mutually be called their earlier difficulties (section 60CC(3)(e)).
As will be clear from what I have earlier said, I consider that the parental capacity of each of the parents to provide optimal or even “good enough” parenting to the child is impaired, but such incapacity as the father evidences points to the need for education of him and the need for a slow and gradual introduction of increasing periods of time, as distinct from there being no time and consequently no opportunity to develop a relationship with his daughter (section 60CC(3)(f)).
I have already referred to and will not repeat what I consider to be the significant failings in the exercise of the responsibilities of parenthood displayed by each of these parents (section 60CC(3)(i)).
Taking account of and weighing all of the considerations that I consider to be relevant I am persuaded that there should be time spent between the child and her father. However, by reason of the concerns I have referenced to the statutory Considerations I consider that orders for time should be bounded by the following matters:
a)parental education which should be undertaken by both parents;
b)the continuation of supervised time for a period so as to permit of the mother accepting and putting into practise these orders (as she said in the witness box she would) and to permit the attachment between father and daughter to grow in familiar (albeit somewhat artificial) surroundings. However, that should occur in a manner similar to that contemplated by the orders made by Jarrett FM on 13 September 2011; that is time where changeovers occur at the Contact Centre and where a period of time away from the Contact Centre but geographically proximate to it is “bookended” by times at the beginning and the end within the Centre;
c)Thereafter, unsupervised time being for short periods with a relatively long lead-in to overnight time and then longer periods of overnight time; and,
d)Overnight time extending beyond two nights (for example, during school holidays) should await the child adjusting to overnight time.
The orders as earlier outlined by me, which take account of those matters and the other matters to which I have earlier made reference in these reasons, contemplate both supervised time (which was not included as part of the ICL’s proposals) and a longer, and more gradual “lead-in” timeframe to unsupervised time, each of which I consider to be in the child’s best interests. I will make orders, then, that reflect those considerations and findings.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 24 January 2013.

Associate:

Date: 5 February 2013

[2013] FamCA 41

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Procedural Fairness

Statutory Construction

Appeal