Merton & Merton
[2007] FamCA 1350
•19 November 2007
FAMILY COURT OF AUSTRALIA
| MERTON & MERTON | [2007] FamCA 1350 |
| FAMILY LAW – CHILDREN – CHILD’S DISCLOSURES – Disclosures by child of touching and playing with father’s penis – Whether on the evidence a finding of sexual abuse open – Finding not made – Whether unacceptable risk of sexual abuse – Whether need to protect child from physical or psychological harm by being subjected to or exposed to a risk of sexual abuse – Finding that no unacceptable risk of sexual abuse – Consequent finding that no need to protect child from physical or psychological harm by being subjected to or exposed to a risk of sexual abuse FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Whether parties able to communicate and cooperate for the purpose of equal shared parental responsibility FAMILY LAW – CHILDREN – EQUAL TIME – SUBSTANTIAL AND SIGNIFICANT TIME – Equal time considered – Substantial and significant time considered – Child’s best interests – Determination that at this stage equal time not in child’s best interests – Substantial and significant time at this stage in child’s best interests – Observation that in the future equal time order may be appropriate |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Briginshaw & Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Merton |
| RESPONDENT: | Ms Merton |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer McArdle |
| FILE NUMBER: | BRF | 4482 | of | 1999 |
| DATE DELIVERED: | 19 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 9, 10, 11, 12, 13, 16, 17 and 18 July 2007 |
REPRESENTATION:
| THE APPLICANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Mr Ashcroft of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Ms Gilmour |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jennifer McArdle |
ORDERS
UPON THE FATHER’S ORAL UNDERTAKING PROVIDED IN OPEN COURT ON 18 JULY 2007 NOT TO:
A BATHE WITH THE CHILD
BBE NAKED WITH OR IN THE PRESENCE OF OR IN THE VIEW OF THE CHILD
IT IS ORDERED:
Parental responsibility
The parties have equal shared parental responsibility for the child … born on … December 1997 (the child).
Child’s living arrangements
The child spend substantial and significant time with each of the parties as follows:
A The child spend time with the father:
(a)during school terms:
(i)until the end of the present school term, in fortnightly cycles, from 9am Saturday until 5pm Sunday in the first week and from 9am Sunday until 5pm Sunday in the second week, the first week to coincide with the present arrangement for the child’s Saturday and Sunday day time with the father and the second week to coincide with the present arrangement for the child’s single Sunday day time with the father;
(ii)from the commencement of the 2008 school year, in fortnightly cycles, in the first week from after school on Thursday until the commencement of school on Monday (Tuesday if the Monday is a public holiday or pupil free day), and in the second week overnight from after school on Thursday until the commencement of school on Friday; the fortnightly cycles to recommence at the commencement of each school term (first week then second week) regardless of whether the last week of the preceding school term had been a first week or a second week;
(b)during school holidays (defined for the purpose of these orders as meaning the designated school holidays applicable to the school the child attends, to commence at 9am on the day after each school term finishes and to conclude at 5pm on the day before the next school term commences):
(i)Christmas 2007/New Year 2008:
(I)for one week from 9am Saturday until 9am the following Saturday to be nominated by the father to the mother in writing no later than 30 November 2007, but not to be the week 9am Saturday 22 December 2007 until 9am Saturday 29 December 2007 (in which Christmas Day falls) but which may be the week 9am Saturday 29 December 2007 to 9am Saturday 5 January 2008;
(II)from 5pm on Christmas Eve 2007 until 2pm on Christmas Day 2007;
(III)on two other occasions being 4 day blocks, from 9am Friday until 5pm Monday, one in December 2007 and one in January 2008, to be nominated by the father to the mother in writing no later than 30 November 2007;
(ii)commencing Easter 2008, for half of the Easter, June/July, September/October and Christmas school holidays (as defined above) being the first half in 2008 and the even numbered years and the second half in 2009 and the odd numbered years, “half” to be calculated by the number of nights in each school holiday period as so defined, and if an uneven number of nights, the additional night to be added to the period the child is to spend with the father (for example, if the child is to be with the father for the first half of a holiday period the additional night is to be added to the end of the period and if the child is to be with the father for the second half of a holiday period the additional night is to be added at the commencement of that period), the changeover time to be at 9am on the holiday changeover day;
(c)additional times if not already with the father:
(i)on Father’s Day, if not already with the father, from 9am until 5pm;
(ii)for Christmas Day, if not already with the father, from 5pm on Christmas Eve until 2pm on Christmas Day (except Christmas 2007, as to which par 2A(b)(i)(II) applies);
(iii)on the child’s birthday and the father’s birthday, if not already with the father, if a school day from after school until 6pm and if a weekend day from 2pm until 6pm;
(d)other times:
(i)at all other times which the parties may agree in writing (including by email or text message).
BThe child spend time with the mother:
(a)at all other times;
(b)(i) on Mother’s Day, if not already with the mother, from 9am until 5pm;
(ii)for Christmas Day, if not already with the mother, from 5pm on Christmas Eve until 2pm on Christmas Day (except Christmas 2007, as to which par 2A(b)(i)(II) applies);
(iii)on the child’s birthday and the mother’s birthday, if not already with the mother, if a school day from after school until 6pm and if a weekend day from 2pm until 6pm.
Telephone communication
The parties are to allow liberal telephone communication between the child and the other party at reasonable times, to be initiated by the father when the child is with the mother, by the mother when the child is with the father and by the child as reasonably she herself may instigate.
Changeover
The party with whom the child has been spending time must for the commencement of time with the other party deliver the child at the times specified in paragraph 2 to the home of the party with whom the child is about to spend time unless the commencement of time the child spends with a party is after school in which case that party must collect the child from her school at the conclusion of the school day and unless the conclusion of time the child spends with a party is before school in which case that party must deliver the child to her school at the commencement of the school day.
Attendance at the child’s school
The parties each may attend at the child’s school for functions, events, ceremonies and activities which parents usually attend (for example open days, speech days, sports days, concerts, parent/teacher interviews and special functions) and participate with the child in such functions, events, ceremonies and activities to the same extent as usually permitted by the child’s school to the parents of children attending the school subject always to the authority of the child’s school principal and its other officers in relation to such attendances by parents.
Any such attendances by the parties at the child’s school are not for the purpose of these orders to be regarded as a party spending time with the child.
The parties must not other than in the case of an emergency, or any specific invitation from the child’s school, or for changeover as provided in these orders, attend at the child’s school.
Child’s extra curricular activities
The parties are not to arrange for the child to undertake any extra curricular activities other than those in which the child is presently engaged, without the written agreement of the other party.
Child’s attendance at protective behaviour course
The mother must, as soon as possible, and in any event within 30 days, arrange for the child to attend a protective behaviour course, suitable for her age and developmental stage, with Contact House or other similar organisation, to avail the child the opportunity to learn further awareness as to appropriate and inappropriate touching as between children and adults, further protective behaviour skills as to inappropriate touching as between children and adults and the necessity to tell a trusted adult or teacher if any inappropriate touching is requested of her by any person.
The mother must ensure that the child’s attendance at such course not be at times the child is to spend time with the father pursuant to these orders and may, if necessary, arrange for the child’s attendance at such course in school hours.
Provision of a copy of these orders to the principal of the child’s school
The mother and the father are authorised to, and must, provide a copy of these orders to the principal of the child’s school.
The principal of the child’s school is authorised to, and may, show a copy of these orders to the child’s teachers.
Non denigration and non questioning
The parties must not denigrate each other to or in the presence or hearing of the child, must speak of the other party respectfully in the presence or hearing of the child and must not unduly question the child as to activities with the other party or about the other party’s personal life.
Information
The parties must keep each other informed in writing as to:
(a)his and her residential address, landline telephone number (if any) and mobile telephone number (if any); the telephone number or numbers to be used for the other party or the child to initiate the telephone communication referred to in these orders; the telephone number or numbers (if any) for any holiday destinations to which the child may be taken pursuant to these orders; and
(b)the name, address and telephone number of any treating medical or health practitioner the child may attend.
The parties must notify each other as soon as possible of any serious accident or illness relating to the child.
Authorisation
The parties must authorise the child’s school and any treating medical or health practitioner the child may attend to provide to the other party such reports and other information or documents as he/she may seek in writing from the child’s school or any practitioner at his/her cost provided that this order is sufficient authority for that purpose without further authorisation.
Parties’ communication
The parties must communicate with each other in relation to the child and arrangements for the child as may be appropriate by telephone, post, text message or email.
Holidays
If the parties propose to take the child on any holiday outside of the Brisbane area, each must communicate with the other the dates, itinerary and destination (location, not necessarily address) and ensure that the destination is one within mobile telephone communication distance.
Compulsory attendance by the parties upon a family consultant
The parties are to attend upon a family consultant at the Family Court of Australia at Brisbane within 14 days and otherwise at such times and dates as may be directed by the Manager - Child Dispute Services to enable pursuant to s 65L of the Family Law Act 1975 (Cth) the family consultant to assist the parties to carry out these orders.
Consultation with family dispute resolution practitioner
If the parties are unable to agree any matters concerning the child relating to their equal shared parental responsibility they must:
(a)consult with a family dispute resolution practitioner, or if they cannot agree within 7 days as to the choice of a family dispute resolution practitioner, a counsellor at a family relationship centre, to assist them to resolve any dispute concerning arrangements for the child or proposed consent orders varying these orders; and
(b)must pay the costs of the family dispute resolution practitioner and/or counsellor equally.
All previous orders and undertakings discharged
All previous orders concerning the child are discharged, and all previous undertakings concerning the child are discharged, other than the undertakings above.
All other applications dismissed
All other applications concerning the child are dismissed.
Independent children’s lawyer discharged
The independent children’s lawyer is discharged.
AND IT IS FURTHER ORDERED
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.
Notations:
Paragraph 2B(b) provides an exception to the operation of paragraph 2A.
For the purpose of paragraph 8, the child’s present extra curricular activities are:
(a)for music, piano and cello
(b)for dance, tap and jazz lessons
(c)for sport, tennis, swimming
(d)horse riding
(e)chess club.
IT IS NOTED that publication of this judgment under the pseudonym Merton and Merton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 4482 of 1999
| MR MERTON |
Applicant
And
| MS MERTON |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the child born in December 1997, 9½ years at the time of the trial (the child).
Mr Merton (the father) seeks orders that he and the mother have equal shared parental responsibility for the child; the child spend equal time throughout the year with the mother and the father, being alternate weeks, in school terms from after school on Friday until the commencement of school the following Friday and in school holidays with changeover at 3pm on Fridays; special arrangements for Christmas Day/Boxing Day, New Year’s Eve/New Year’s Day, Mother’s Day and Father’s Day; and otherwise as set out in his amended application filed on 12 March 2007.
Ms Merton (the mother) seeks orders that she have sole parental responsibility for the child; the child live with her; that any time the child spends with the father which may be ordered by the Court be supervised by a supervisor approved by the mother; and otherwise as set out in her amended response filed on 20 April 2007.
Relevant background facts
The father is 48 years and the mother 50 years.
They met in about 1991, commenced a relationship in about 1993, married in 1995 and separated in early 1999, when the child was about 14 months.
The mother is employed by a State Government department as a receptionist, working 32 hours per week. She also receives a part sole parenting pension.
The father is presently a full time student pursuing a Masters degree externally, having four subjects to complete that degree. He has a Diploma and an Advanced Diploma each received from TAFE Queensland in July 2006 and December 2006 respectively and is a member of a professional body, being admitted in December 2006. (See ex 9). In earlier years he earned a Bachelor degree (1979-80) and various certificates relating to agriculture and development, which in earlier years he used for employment in the agriculture industry.
The mother and the child live at C, in Brisbane’s northern area. The father lives on his own at R, also in Brisbane’s northern area. The parties’ residences are about 10-15 minutes travel time apart. (See ex 6).
Neither party has any other children.
The mother has not repartnered.
The father has a relationship with Ms D, whom he describes as his girlfriend. He and Ms D have known each other for some time, and have shared a relationship for about three years. Ms D is a hairdresser.
The child presently attends the C Primary School, in Year 4.
History of care relating to the child and curial history
Since the parties’ separation, the child has lived with the mother.
Until March 2003, pursuant to various orders made in 1999, 2000 and 2001 the child spent time with the father as provided in those orders. It is not necessary to refer to all of those orders, or their specific provisions. It is however material to refer to the terms of the orders which were in place as at March 2003, which had been final orders made by the Honourable Justice Warnick on 10 October 2001. Those orders provided (partly by consent and partly determined by his Honour) that the child live with the mother and have contact with the father as may be agreed but in the absence of agreement on alternate weekends from 3pm Friday until 5pm Sunday (or Monday if a public holiday); in alternate weeks from 3pm Thursday until 5pm Friday that time to change when the child commenced school to be from after school Thursday until the commencement of school Friday; for two periods of one week each separated by not less than one week in the 2001/2002 Christmas school holidays; and in subsequent years for half of all of the school holidays except for the 2002/2003 Christmas school holidays for which provision was made in the same terms as the 2001/2002 Christmas school holidays; that the child have telephone communication with the father on each Wednesday at 6pm; and other orders relating to the child’s schooling and other matters.
On 20 March 2003, following disclosures by the child to which I will refer in more detail below, and upon the father’s undertaking not to bathe with the child, interim orders were made for day time contact on alternate weekends from 9am until 5pm on Saturday and from 9am until 5pm on Sunday and on each other weekend from 9am until 5pm on Sunday (that is, every Sunday and alternate Saturdays); the orders providing that during all periods of contact another adult be present; for changeovers to occur at the B Police Station; and for the telephone communication on each Wednesday at 6pm to continue.
On 13 June 2003, further interim orders were made before a trial in mid 2004.
On 29 October 2004, final orders were made by the Honourable Justice Bell, following the trial, that the child have contact with the father on alternate weekends from 9am until 5pm Saturday and from 9am until 5pm Sunday and on each other weekend from 9am until 5pm on Sunday (that is, every Sunday and alternate Saturdays); the orders providing that during all periods of contact another adult be present, such adult to be approved by the child representative; changeovers to occur at the B Police Station; and telephone communication on each Wednesday at 6pm.
On 22 May 2006, the Full Court allowed an appeal by the father, remitted the parties’ applications for rehearing and ordered that pending the rehearing the orders made on 29 October 2004 remain in place on the interim basis.
On 21 March 2006, while the appeal decision was pending, an interim order was made relating to the child’s attendance at music tuition.
At a mediation conducted in May 2007, the parties agreed to vary the interim changeover and telephone communication provisions.
Procedural matter
Although the order of the Full Court remitted the parties’ applications for rehearing (those applications apparently being those filed by the parties leading up to the 2004 trial) for the purpose of the rehearing the father filed an amended application (12 March 2007) and the mother an amended response (20 April 2007) to which I have referred above, it being common ground that the rehearing proceed on that basis.
Contravention findings
On 10 June 2004, the mother was found to have contravened the orders made on 20 March 2003 by not providing contact on 11 January 2004. No penalty was imposed, however, additional “make up” contact was ordered on 26 January 2004.
On 14 July 2005, the mother was found to have contravened the orders made on 29 October 2004 by not making the child available for telephone contact on 31 March 2005 and on 11 May 2005. The mother was ordered to contact Relationships Australia and, if assessed as suitable, attend a program or part program nominated by that organisation. Further, additional “make up” telephone contact was ordered.
Notice of child abuse or risk of child abuse
On 11 February 2003, the mother filed a notice of child abuse or risk of child abuse specifying:
Particulars of alleged abuse
1On 26 January 2003 the child disclosed to me that she and her father, namely, Mr Merton, were bathing together.
2On 1 February the child, disclosed to me that whilst bathing with her father, they played a game whereby she “touched”, “held down” and “played” with the father’s penis over a considerable period of time and that this had occurred on more than one occasion.
Particulars of alleged risk of abuse
1If the father is allowed to continue having contact with the child the matters referred to in paragraphs 1 and 2 above, would continue.
2The father is to be interviewed by the Department of Families on 11 February 2003 and the investigation by the Department of Families is ongoing and the outcome of the investigation is yet unknown.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, 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 consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·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
·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
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to findings of sexual abuse
In M & M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw & Briginshaw (1938) 60 CLR 336. Hilton & Allen (1940) 63 CLR 691. Reifek & McElroy (1965) 112 CLR 517. M & M (1988) 166 CLR 69 at 76-77.
Further, s 140 of the Evidence Act1995 (Cth) provides:
(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.
In WK & SR (1997) FLC 92-787 the Full Court said at 84,694:
…[T]he grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be toward the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W(Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to WK & SR as emphasising the very high standard by which a court needs to be satisfied on the balance of probabilities that “something has actually occurred” and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
In Re W and in WK & SR I do not understand the Full Court’s reference to “standard” to be other than the standard of the balance of probabilities (that in itself being the relevant “standard of proof”) but rather a reference to the quality of evidence, that is, evidence not characterised as “inexact proofs, indefinite testimony or indirect references”.
Approach to the analysis of evidence relating to sexual abuse disclosures
In B & B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred ….
The Full Court then referred to his Honour’s analysis of the evidence, application of the law and his conclusions in that case as to whether sexual abuse had occurred.
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of harm by exposure to a risk of sexual abuse
The Court first must determine whether, on the evidence, and having regard to the matters in s 140 of the Evidence Act 1995 (Cth) there is a risk of sexual abuse occurring, and if so the magnitude of that risk.
However, in determining what is in a child’s best interests, which is the paramount consideration, it is necessary then to balance the level or degree of any such identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person and, having regard to where the balance lies, determine accordingly what is in a child’s best interests.
This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B & B (above) at 79,778:
The High Court in M & M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M & M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M & M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M & M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown & Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
The more recent Full Court cases concerning unacceptable risk have discussed the application of, buy not restated, these principles. See, however, Napier & Hepburn [2006] FamCA 1316 at [56] and [114] as to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, in particular the observation of Warnick J at [114] that, once made, such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
The evidence
The father relied on his affidavits filed on 18 March 2003, 5 July 2007, 6 July 2007 (except the last ten lines on page 9) and a further affidavit filed on 5 July 2007 in response to the mother’s material; and the affidavits of his witnesses Ms T, Mr L, Ms N, Mr M and Ms L Merton all filed on 5 July 2007.
The mother relied on her affidavit filed on 29 April 2007 (except pars 11, 12, 13, 14, 29, 30, 31, 33, 34, 35, 36, 37, 38, 40 and 41) and the affidavit of Mr P filed also on 29 April 2007.
The independent children’s lawyer relied on the affidavits of Ms B filed on 26 March 2007, Mr I filed on 30 September 2003 and Dr W filed on 8 December 2003. In addition, the independent children’s lawyer called Ms TS and Ms JN, officers of the then Department of Families; Ms BC, the principal of the child’s school; Mr LP, the deputy principal of the child’s school; and Ms Y, a teacher.
The parties referred also to the various documentary and other exhibits.
I do not propose, as it is not necessary, to set out any general synopsis of the parties’ or the independent children’s lawyer’s evidence. Instead, I will refer to selected parts of the evidence when dealing with the statutory matters I must consider.
However, I have carefully considered all of the evidence.
The submissions
Similarly, I do not propose, as it is not necessary, to set out any synopsis of the parties’ or the independent children’s lawyer’s submissions, all of which also have been carefully considered.
The statutory matters
Parental responsibility
The mother’s affidavit, pars 44-77, refers to several alleged incidents of family violence by the father, resulting in her obtaining an interim domestic violence order in about 1999 (par 63) and a protection order in March 2003 (par 77 and annexure CM005). It is not necessary to make findings in relation to the mother’s allegations.
The evidence however is sufficient to determine that there are reasonable grounds to believe that the father has engaged in family violence.
Thus, the presumption in s 61DA(1) of the Act does not apply.
The effect is that it is not necessary to consider the other bases on which the presumption might not apply, namely, the matters in the notice of child abuse or risk of child abuse, and the matters of the child’s disclosures (with which I will deal in relation to s 60CC(2)(b) below).
However, despite the circumstance that the presumption does not apply, in my view it is in the child’s best interests for the parties to have equal shared parental responsibility for the child, for the following reasons.
The child is 9½ years, nearly 10 years. According to Ms B, social worker, the child is an “intelligent, well rounded and good natured person” who is “achieving well academically, continues with her music, enjoys her horse riding and is securely attached and fiercely loyal to both of her parents” (report 21 March 2007, par 10.2.1). Ms B observed (also at par 10.2.1) that “both the mother and the father have contributed to this situation”, and also that the child herself is “an extraordinary individual”. Ms B said (also at par 10.2.1) that “In light of the intense conflict that has surrounded her since she was a toddler, it is remarkable that she has maintained such close attachments to both parents”.
Parental responsibility, in relation to a child, according to s 61B of the Act, means all of the duties, powers, responsibilities and authority which by law parents have in relation to children. Section 65DAC of the Act refers to the exercise of shared parental responsibility in the context of joint decision making in relation to “major long-term issues” in relation to a child, this expression being defined in s 4(1) of the Act as including (but not limited to) issues such as a child’s education, religious and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The mother and the father, as observed by Ms B, each have contributed to the child’s current emotional welfare and success.
There is no reason apparent to me why the child ought not continue to have the benefit of both of her parents being responsible for her. The family violence matters between the parties and concerning the child alleged by the mother are now in the past (the mother’s most recent allegations seeming to relate to occurrences in 2003). There is evidence that the father is the party who has initiated many of the child’s extra curricular activities which she enjoys including horse riding, piano, chess, science interests, dancing and swimming, although the mother, it appears, may have initiated cello for the child and some of her dancing activities.
The child will commence her secondary school years in 2011. The father would like the child to attend the G School, at which he believes her talents and interests would best be nurtured, whereas the mother has considered the possibility of a school at H. There is no reason I think to deprive the child of the benefit of equal shared parental responsibility in relation to the decision as to the place of her secondary school education.
I am conscious that, even if no order is made for parental responsibility, s 61C(1) of the Act would operate so that each of her parents would have parental responsibility for her.
However, in my view on all of the evidence the child would benefit, and her best interests would be served, by both of her parents having not only parental responsibility for her but that it be equal shared parental responsibility.
I appreciate that the child’s parents have conflict and communication difficulties. However, that is not a reason to deny the child, when considering her best interests, the benefit of equal shared parental responsibility for her, particularly as each parent has much to offer her. However, having regard to their conflict, in the circumstance of their obligation under s 65DAC(3) to consult each other in relation to decisions to be made about the long-term issues and to make a genuine effort to come to joint decisions in relation to those issues, there is no reason why their communications concerning the child ought not, as may be appropriate, be by telephone, post, text message or email in order to avoid face to face contact, and I will so order.
Equal time
Section 65DAA(1) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, then I must consider whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the child’s parents.
In Goode & Goode (2006) FLC 93-286, the Full Court said, at [64], that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider positively the making of an equal time order.
Thus, it is incumbent upon me first to consider whether the child spending equal time with each of the parents would be in her best interests, approaching that consideration positively.
In order to determine this aspect of the matter, I must turn immediately to the factors set out in s 60CC of the Act which, as I have explained, are the statutory factors I must consider in determining what is in a child’s best interests.
The child’s best interests – the statutory matters
Section 60CC(2) - the primary considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
On all of the evidence, there is benefit to the child of having a meaningful relationship with both of her parents. In particular, as I have observed, each has much to offer her.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
As the parties are now separated, it is unlikely that there is a need to protect the child in the future from being subjected to or exposed to family violence.
There is no evidence of neglect of the child.
There is a need however to consider the evidence as to the child’s disclosures in order to determine whether there may be a need to protect her from physical or psychological harm from being subjected to or exposed to sexual abuse by the father.
I have referred already to the subject matter of the notice of child abuse or risk of child abuse filed by the mother on 11 February 2003, which it is convenient to set out again:
Particulars of alleged abuse
1 On 26 January 2003 the child disclosed to me that she and her father, namely, Mr Merton were bathing together.
2 On 1 February the child, disclosed to me that whilst bathing with her father, they played a game whereby she “touched”, “held down” and “played” with the father’s penis over a considerable period of time and that this had occurred on more than one occasion.
Particulars of alleged risk of abuse
1 If the father is allowed to continue having contact with the child the matters referred to in paragraphs 1 and 2 above, would continue.
2 The father is to be interviewed by the Department of Families on 11 February 2003 and the investigation by the Department of Families is ongoing and the outcome of the investigation is yet unknown.
The child’ disclosures
Disclosures to the mother
The mother’s affidavit is bald as to the substance and nature of the child’s disclosures to her, offering only (par 97) that on 22 February 2003 she filed an application for contact between the child and the father to be supervised “following disclosures by [the child] of inappropriate behaviour by the father towards the child […]”. The affidavit does not say when or how the disclosures were made, or whether she may have prompted the child.
In cross examination, the mother said that on 26 January 2003 (the child then just having turned 5 years on 31 December 2002) when driving the child home from contact, she asked the child, in general conversation “What did you do?”, and the child “brought up some game that she was playing in the bath with Daddy”. She said that she asked the child “Daddy wasn’t in the bath?”, to which the child responded “Yes” and referred to a game in the bath with horses “going around the bath”. The mother said she thought (to herself) “He’s still bathing with her”.
She said that on 27 January 2003, while bathing the child, she asked the child whether, when the father bathed her, he had clothes on, to which the child said “No”. She asked the child if he had togs on, to which the child said “No”.
She said that on 28 January 2003, in the afternoon, she questioned the child again at bath time. She said “I started with the games”, asking the child “What games were you playing?”, and said to the child “So he didn’t wear togs?”, to which the child said “No”.
The mother said that she asked no questions of the child on 29 January 2003 or 30 January 2003, and that as at 30 January 2003 when the father collected the child for contact she had had no other conversations with the child about the matter.
She said that she then contacted her solicitor at about 4pm on 30 January 2003 (after the father had collected the child for contact) and sought advice; then contacted the Department of Families on the same afternoon. She said that she had stated to the Department officers “I’m not making accusations”, and referred to a “rocky separation” between herself and the father, but that later (on 5 February 2003) the officers of the Department “turned up on the doorstep” and interviewed the child.
She said that the father returned the child from contact at about 3pm on the following Sunday, which date was Sunday 2 February 2003. In answer to a question whether between then and the arrival of the officers of the Department on 5 February 2003 the child had made further disclosures, she said “Not that I recall, no”.
Thus, the mother’s evidence does not prove par 2 of the particulars of alleged abuse in the notice of child abuse or risk of child abuse filed by the mother on 11 February 2003 (signed by the mother on 7 February 2003). Moreover, the notice expressly refers to the date 1 February 2003, being a date on which, on the mother’s evidence, the child was with the father.
In these respects, the mother’s own evidence as to dates and events is unreliable.
The Department’s notes (ex 1, first section, p 10) include the following as to the substance of the mother’s notification on 30 January 2003:
On 30/1/03 a notification was recorded outlining the following concerns: [The child] stated that when she is at her father’s house she baths with him every day and that her father allows her to play with his “wee wee”. She also stated that her and her father play games in the bath. Approximately 8 months ago, concerns of [the father] and [the child] bathing together were raised and at this time, her father indicated that this would stop.
The mother’s evidence in cross examination, referred to above, did not include that on any of 26 January 2003, 27 January 2003 or 28 January 2003 the child had said that the father “allows her to play with his “wee wee””. When challenged as to this, the mother said:
·“I seem to remember asking her ‘Did you ever see daddy’s wee wee?’ ”, but this “may have been the week before”
·The child had said “Yes, he had no clothes on”, this being “just confirmation” (apparently confirmation that in the bath the father had no clothes on and the child had seen the father’s “wee wee”) and
·“I’m finding it hard to remember exact words”.
In cross examination, the mother then admitted that, as at the date of the notification to the Department, 30 January 2003, and on the date referred to in the notice of abuse, 1 February 2003, she would not have known anything about “supposed touching” by the child of the father’s penis.
The inconsistencies in the mother’s evidence, compared with the matters in the Department’s note, and the notice of abuse, are stark.
Subsequently, when par 2 of the particulars of alleged abuse in the notice of abuse was put to the mother, she said variously that she did not recall “saying” that the child had “held down” the father’s penis, but said “I do recall that little bit about touching it now”; but when asked whether she recalled the child ever saying to her that she had “played” with the father’s penis, the mother said “No, I don’t recall that”.
After further conflicting testimony from the mother, it appeared that indeed the child had been with the mother on 1 February 2003 (a Saturday) but, possibly, not on the Australia Day long weekend, including Sunday 26 January 2003 and most of Monday 27 January 2003, the father asserting that he had returned the child to the mother at about 3pm on Monday 27 January 2003.
Leaving aside, however, confusion as to dates, importantly the mother then said that it was “very likely” that she had directly asked the child “Have you touched Daddy’s wee wee?”, to which the child had responded that she had “touched it and pushed it down”, “or something like that”; and further then said that she “actually remembered” saying to the child “Did you touch Daddy’s wee wee?”. When squarely put to her “You did say that didn’t you?”, she said “Yes”.
The mother said however that she does not think she would have asked the child “Have you played with Daddy’s wee wee?”, “because I didn’t think that of [the father]”.
Disclosures to the Department
The child was interviewed by officers of the Department on 5 February 2003 and 19 March 2003.
The disclosures then made by the child (ex 1, first section, pp 10-11 in relation to the interview on 5 February 2003; and ex 1, first section, pp 12-13 in relation to the interview on 19 February 2003) are more graphic, and as such disturbing, the child disclosing to the interviewers that:
5 February 2003
·In the bath she and the father “play games with little people”
·The child touches the father’s penis “all the time”
·The father’s penis “floats up and I just grab it” and “pull it about two times”
·The father had said to the child “Stop it … you know I’m joking”, the child adding “He doesn’t mind me doing it”.
19 March 2003
·The child touches the father’s penis in the bath and that it “pops up once I push it to the bottom of the bath”
·The father says to “stop it” but “He doesn’t want me to stop it, he’s trying to trick me”
·The father said to the child “You can do it if you like”
·The father told the child “I could touch it when I want”.
Upon hearing the audio tapes of the interviews (exs 10 and 11, played in the court room) it is evident that the child’s disclosures to the Department’s personnel were the result of direct questioning. However, the audio tapes evidence also a clear change in the child’s voice tone when asked about matters in the bath with the father, as opposed to other matters, the child’s voice appearing to drop in tone, indicating shyness or perhaps embarrassment.
The father’s interview with the Department
The father was interviewed by the Department’s personnel on 11 February 2003 (ex 1, first section, pp 11-12). The father denied the substance of the child’s disclosures and stated that he was concerned that the allegations against him were “due to conflict” in relation to the Court proceedings concerning the child.
The father stated to the Department’s personnel to the effect “I totally deny it and have nothing else to say”.
The father’s evidence at the trial
The father said consistently to the effect that if the child touched his penis, he has no recollection of that.
The father was challenged, in cross examination, as to whether he could explain how the child would know that if a penis is held under water it would “float up”, to which the father responded to the effect that the child would only know this if she had been coached with that information.
The father relied on the evidence of various of his witnesses as indirect corroborative testimony that at all times he was aware of his obligations as the parent of a young female child to cease bathing with her at an appropriate age and time (see the affidavit of Mr M); and that as early as 2002 during a holiday at Bribie Island he had showered with the child wearing togs and with the shower door open (see the affidavit of Ms T).
The father sought to explain potentially negative evidence against him, for example, as contained in the report of Mr I, psychologist, on the basis that Mr I had confused the father’s answers to him.
Analysis of the evidence – does it support a finding that sexual abuse of the child by the father has occurred
It is plain that, for the most part, the child’s disclosures to both the mother and the Department resulted from direct questioning.
However, in considering whether the child may have fabricated her disclosures, there are aspects of the child’s disclosures to the Department which possibly may have been incapable of fabrication by the child, for example, that in the bath the father’s penis “floats up”, or “pops up once I push it to the bottom of the bath”.
It is difficult to accept the father’s explanation that the child’s apparent knowledge that if a penis is held under water it will “float up” is knowledge likely to have been gained by the coaching of such information, and it seems to me possibly to be more likely than not that the child’s description in this regard is of something she has observed or participated in rather than being told of such a thing by coaching.
Further, the child’s evidence to the Department’s personnel of her perception of “trickery” by the father, by the false discouragement of her touching his penis, as the child perceived it, is of concern, as possibly unlikely to be a matter fabricated by the child.
The child’s initial response to the mother’s first question to the child, of merely playing games in the bath with the father, is capable of being seen as an innocent statement by the child misinterpreted by the mother, particularly as the mother, it appears, had a predisposed concern of the father and the child having bathed together until about 8 months prior to January 2003. This is gleaned from the Department’s notes as to the substance of the mother’s notification on 30 January 2003 (set out above, final sentence) reading “Approximately 8 months ago, concerns of [the father] and [the child] bathing together were raised and at this time, her father indicated that this would stop”.
However, the subsequent disclosures by the child, in particular to the Department, seem sufficiently vivid in their detail possibly to have been genuine recollections by the child and, as I have said, in some respects may be unlikely to have been fabricated.
Thus although, as I have earlier observed, the mother’s evidence was confusing in parts and inconsistent, there is I think a possibility, even a strong possibility that, despite the direct questioning by the Department’s personnel, there were some occasions in or before January 2003 of the father permitting or allowing the child to touch or play with his penis in the bath, and of his either encouraging the child to touch or play with his penis in the bath or at least of not discouraging such touching or playing, in the setting also of practising deception on the child of pretence or trickery by a duality of discouragement/encouragement, in the context of “games”, amounting to serious abuse by the father of the child’s trust in him as her father; and of serious sexual abuse of the child, not by his touching of her (as to which there were no disclosures) but of her touching him, whether invited, allowed or simply not appropriately and strongly discouraged.
However, despite these observations, even “strong possibility” is insufficient to support a positive finding of actual sexual abuse of the child by the father having regard to s 140 of the Evidence Act 1995 (Cth), the Briginshaw line of cases and the other principles to which I have referred relating to findings of sexual abuse in family law matters.
In particular, the child had just turned 5 years at the time of her disclosures. Further, their nature does not admit of the degree of precision of particularity as to time or date necessary for the father, with particularity, to refute them. (See Re W (Sexual abuse: standard of proof) (above) at [48]). Thus, the matter falls into the category of “inexact proofs, indefinite testimony or indirect inferences” (Briginshaw, above) which falls far short of the requisite satisfaction on the balance of probabilities necessary to support a positive finding so that, having regard to these matters and the gravity of the consequences flowing from a positive finding, in my view such is not open to me.
Analysis of the evidence – is there an unacceptable risk of sexual abuse of the child by the father
As I have mentioned, it is necessary first to determine, on the evidence, whether there is a risk of sexual abuse occurring, and if so the magnitude of the risk.
Mr I, psychologist, in a comprehensive report dated 10 September 2003, at par 9.2, concluded in relation to the father that there were “dimensional indicators of a personality structure consistent with Narcissism”.
Mr I said, at par 9.4, that the father “met five of the possible thirty-nine known risk factors pertinent to sexual offending”, but more significantly, concluded (also at par 9.4):
9.4 … As a result [the father] meets the criteria to be of low risk of sexual offending. (emphasis added)
Under the subheading “Conclusion and Recommendations”, Mr I listed what he described as “some risk factors” identified in the father in the assessment process, followed by a list of “established protective factors, which assist in minimizing future risk”, to all of which I refer, without setting out.
Mr I then said:
10.1In conclusion interview and psychometric data used in this assessment indicated that [the father] met criteria to assess him as being at low risk of sexual offending.
10.2However, there was sufficient endorsement of items to warrant a treatment intervention for [the father] in the areas of developing an understanding of Intimacy, Sexuality and Attachment and a further understanding of the Consequences of Sexual Abuse. I am of the opinion that psychotherapy in these areas will sufficiently and further reduce his low risk of sexual offending.
10.3Subsequent to successful completion of treatment I would not consider him to be of risk to his child, and I would recommend that he re-establish overnight contact with [the child].
10.4Recommended therapists would include but not be restricted to:
Dr W
Clinical Psychologist
Mr DM
Forensic Psychologist
(emphasis added)
In his oral evidence, Mr I was asked whether, if I should find that the subject matter of the child’s disclosures in fact had occurred, but the father did not acknowledge the incident or incidents, that would affect his opinion that the father was at low risk of sexual offending, to which Mr I responded that such would not affect his evaluation of the father being of low risk of sexual offending, adding to the effect “Whether he says he did or did not do the bathing or the touching is almost irrelevant”, because “so many other aspects are taken into account in relation to recidivism”.
Dr W, psychologist, in his report dated 13 October 2003, referred to the circumstance that:
… Mr [I] concluded that the risk of [the father] engaging in sexual offending behaviour was low and that this low risk could be further reduced by the treatment recommendations he made. …
Dr W said:
I have undertaken with [the father] the treatment recommended by Mr [I]. This treatment is of a psycho-educational nature and covered the areas of developing and understanding intimacy, sexuality, and attachment and developing a better understanding of the consequences of sexual abuse. I agree with Mr [I] that for [the father] to further develop his knowledge and understanding of these issues would contribute to an additional lowering of the potential risk for sexual offending behaviour with his daughter.
In my opinion [the father] has a good understanding of the consequences of sexual abuse, the psychological mechanisms that can lead to sexual abuse occurring, and what is appropriate and inappropriate intimacy with adults as opposed to children, and how inappropriate intimacy with children can lead to a heightened risk of engaging in inappropriate behaviour leading to sexual offending.
[The father] has now completed the treatment as recommended by Mr [I] in his report dated 10 September 2003. (emphasis added)
In cross examination, Dr W said that the father’s treatment by him was “criterion based” so that whereas one person might require eight sessions, another person might require twenty-eight sessions “until the criteria is reached and that is when treatment is terminated”, and agreed that, in relation to the father, eight sessions was “sufficient for any education needed by him to be or remain low risk”.
It seems to me, in assessing whether presently there may be a risk of sexual abuse of the child by the father, and if so, the magnitude of that risk, I am entitled to rely, as I do, on Mr I’s assessment of the father as being at low risk of sexual offending; that in his opinion psychotherapy with a person such as Dr W would “sufficiently and further reduce his low risk of sexual offending”; and that “subsequent to successful completion of treatment” Mr I would “not consider him to be of risk to his child”, leading to Mr I’s recommendation that (subsequent to successful completion of treatment) “overnight contact” with the child be re-established. In this context, I am entitled to rely also, as I do, on Dr W’s evidence to the effect that the father has undertaken and completed the treatment recommended by Mr I, together with Dr W’s opinion, in the passage set out above, that the father now has a “good understanding” of the matters described by Dr W.
I am mindful of the observation which I made in relation to the “strong possibility” of serious abuse by the father in or before January 2003, in the manner which I have described. I have referred also above to the father’s denial of the touching incidents described by the child. However, Dr W said, relevantly, that his treatment of the father would not be “undermined” by the circumstance of the father not admitting the child’s disclosures (transcript 13 July 2007)
… So on balance I would say, no, the treatment wasn’t undermined by the fact that [the father] was not acknowledging that such an incident occurred.
Doctor, wouldn’t part of the treatment be that – admitting that the incident occurred?---I think I have just answered that question.
Doctor, what benefit are these recommendations or – I will rephrase that. Doctor, the steps that you said you taught [the father] in these sessions, wouldn’t that be undermined if he didn’t admit that there was an incident in the first place?---As I stated in my previous answer, whilst it is helpful if an offence has occurred for the person to acknowledge that has an offence has occurred, the treatment sessions that were recommended by Mr [I] that I conducted with [the father] were more in the nature of being psycho-education and [the father] – and the model that the treatment sessions are based on is called a relapse-prevention model and [the father] was trained thoroughly in the principles of relapse-prevention and demonstrated that he thoroughly understood the principles of relapse-prevention, that is, what steps would he have to take to ensure that such an incident could not occur. (emphasis added)
I turn now to the views of the Department’s assessor expressed in the Department’s records (ex 1, first section, p 13) that the father’s conduct with the child (as gleaned from the child’s disclosures) “indicates that there is a well established pattern” between the child and the father of “inappropriate interactions” including a “set of cues” by the father to “direct the sequence of abusive interactions”; that the “entire interaction is part of an ongoing process of “grooming” that will lead to more serious incidents of sexual abuse”; and the assessor’s reference to the circumstance that:
… The literature also indicates that sexual abuse, particularly familial sexual abuse progresses along a continuum, which, in its early stages begins with touching and exposing of genitals. Sex offenders in these situations frequently encourage the children to touch the offenders genitals as [the father] has done with [the child]. The research further indicates that familial sexual abuse has the most devastating effects for its victims and ultimately is likely to involve the most serious forms of sexual abuse including full penetration. (emphasis added)
At the same part, the assessor expressed the view that the father’s “grooming” of the child has given her “a skewed perception of what is appropriate and has eroded her sense of personal boundaries and ability to protect herself from exploitation”, and that “like many offenders”, the father has “abused [the child] under the guise of “a game” which represents a most severe betrayal of trust”.
The assessor said:
… [I]t is my assessment that [the child] has not only suffered significant psychological harm through inappropriate sexual touching instigated by her father, but also is at high risk of sexual abuse and future significant harm if left unattended with him. … (emphasis added)
However, since then, the father has been assessed by Mr I, and undergone the psychotherapeutic intervention with Dr W to which I have referred.
Moreover, the assessor’s views are predicated upon a conclusion that the father is an “offender” (see above), meaning a sexual offender. It is not at all clear to me, with all due respect to the assessor, that he or she has applied the legal principles by which I am bound (s 140 of the Evidence Act 1995 (Cth); the Briginshaw line of cases; and the other principles referred to); nor what standard of proof he or she applied at all to the matter.
It is axiomatic that it is my function, as the trial judge, to make independent judicial findings as to these matters, and not to rely upon conclusions reached by Department personnel. In this regard, I would refer to the observations of the Full Court in this matter Merton & Merton (unreported), Appeal No NA75 of 2004, 22 May 2006, par 72:
72.To the extent that the trial Judge purported to rely upon conclusions reached by the Department of Families that the father had “inappropriately been touched by his daughter”, he could not properly do so. As the authorities make clear, the task of determining the allegations of sexual abuse was that of his Honour, on the evidence before him. Whilst, as the High Court made clear in M & M, his Honour’s task was not necessarily to reach a definitive conclusion with respect to allegations of sexual abuse, it was clearly to determine the issue for himself as the “ultimate trier of fact” (see Makita (Australia Pty Ltd & Sprowles [2001] 52 NSWLR 705 at 729) according to the standard discussed in M & M and B & B [Access] (1986) FLC 91-758.
Thus, whilst I have considered the views of the Department’s assessor, it would be inappropriate for me to rely on his or her conclusions of fact, in particular that the father is an “offender”; that the child has suffered or will suffer “significant psychological harm”; or that she is at “high risk of sexual abuse and future significant harm” if left unattended with the father.
For my part, the assessor’s ready opinion that the child has suffered significant psychological harm and also is at high risk of future significant harm does not appear to me to be supported by psychological testing or assessment of the child, but rather a conclusion based on interviews, otherwise devoid of particularity as to the suggestion of existing significant psychological harm. Thus, the assessor’s conclusion in this regard seems to be a secondary conclusion based upon the primary conclusion that the father in fact abused the child, as to which I have already made sufficient observation.
I have considered also, and have taken into account, in assessing whether there may be a risk of sexual abuse of the child by the father, evidence by the child’s school personnel of observing the father kissing the child on the lips at the school, apparently in about early 2005. (See ex 1, third section).
It is difficult to evaluate whether the incidents described fall into a “sexual” category, particularly as, legitimately, opinions differ as to whether it is appropriate or inappropriate for a father to kiss a young female child on the lips.
I have carefully considered this evidence, particularly in light of the Department’s assessor’s views to which I have referred of the father “grooming” the child, as to whether the kissing may be part of a sexual “grooming” agenda. There is however no evidentiary basis to conclude that the father’s kissing of the child on the lips was part of such an agenda, as opposed to innocent, although perhaps in the circumstances inappropriate, physical intimacy.
I note that the kissing is said to have occurred in about early 2005, which is a considerable time after Mr I’s and Dr W’s observations and conclusions.
In the absence of expert evidence, however, that the kissing amounted to inappropriate intimacy, I am entitled to rely upon Mr I’s and Dr W’s evidence.
Taking all of the relevant matters into account, it appears to me that the proper conclusion on the evidence is that there is a low risk of sexual abuse of the child by the father, or of the father now allowing inappropriate touching of him by the child, whether or not that previously has occurred, as to which specifically, as I have explained, I make no finding.
Further, the father on 18 July 2007 during the hearing provided an oral undertaking to the Court not to bathe with the child or be naked with or in the presence of or in the view of the child. At the time of the trial the child was 9½ years, whereas at the time of the disclosures she was 5 years. There will be opportunity for the child to attend a protective behaviour course to avail her the opportunity to learn protective behaviour skills in particular as to inappropriate touching between children and adults.
I would caution the father, in addition to the matters in his undertaking, that in all of the circumstances of the case, it would be imprudent from now on for him to kiss the child other than on the cheek or forehead, and he should not allow the child to kiss him on the lips but similarly direct her kisses to his cheek or forehead.
I have referred above (when dealing with parental responsibility) to the circumstance that the father has initiated many extra curricular activities for the child, which she enjoys. See in particular par 68 above. Further, there is evidence by Ms B, social worker, that the child displayed a “close and loving relationship” with the father, that they have a “good rapport” and “obviously enjoy spending time together”, (report 21 March 2007, pars 6.1.1 and 6.1.2) which matters indicate to me benefit to the child of spending time with the father.
On balance, I am unable to conclude that the level or degree of the risk of sexual abuse of the child by the father outweighs the possible benefit to her from spending time with the father, so that, in my view, there is not an unacceptable risk of sexual abuse to the child from spending time with the father.
Further, in relation to s 60CC(2)(b) of the Act, I am unable to conclude, on all of the evidence, that there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse from the child spending time with the father.
It follows that the child’s best interests do not require either the cessation of the child’s time with the father or that it should be supervised.
Section 60CC(3) – the additional considerations
The child’s views
According to Ms B, social worker, the child would like to spend “half her time with her Dad” or “at least sleep at his house every now and then” (report 21 March 2007, par 7.3), but “If she didn’t get shared care, she would be happy to get whole weekends and longer holidays with her father” (report, par 7.12).
The child’s relationships
The child has always lived with the mother.
However, according to Ms B, the child is “securely attached and fiercely loyal to both of her parents” (report, par 10.2.1).
It is plain that the child is aware of conflict between her parents, having reported to Ms B that she was “a bit nervous” about expressing her views, as she “didn’t want to upset Mum or Dad” (report, par 7.1).
In this vein, one part of the mother’s evidence was disturbing, as to the mother’s relationship with the child and her ability, perhaps, to influence the child to the point of telling the mother lies about the father to please the mother.
The evidence was given by the mother on 12 July 2007, the fourth day of the trial, at about midday. I will not set out the evidence, which is available on transcript if required. It concerned a trip in about May 2007 to a rural heritage homestead property at K, which surrounds offer horse riding and other activities. It is sufficient to say, as the transcript will show, that the mother induced the child, apparently on the evening of the first day of the trial, 9 July 2007, to say (the child hanging her head in the process) that after a particular incident at McDonalds, en route to K, she had continued to K on her own with the father, the child embellishing apparently to the effect that the father had said that “they could only go”, meaning the child and the father, only if the child promised not to tell the mother, causing the child then to apologise to the mother because the child had not told her “about it”. At the time of this K trip in May 2007 (there having been other trips) the orders in place included that the child’s time with the father be supervised, and the usual supervisor was Ms N. However, Ms N stated unequivocally that after the particular incident at McDonalds, en route to K, involving an argument between Ms N and the father as to spilt coffee and Ms N threatening not to continue with the trip, ultimately she had continued in the car with the child and the father to K. Ms N said emphatically as to the incident, which evidence I accept, “I was not happy about it, but I did go”.
The mother’s questioning of the child on the first evening of the trial seems to have been based upon some evidence given on that day by Ms T, the proprietor of the K premises, that she had seen the child and father at that premises together without a supervisor, and indeed had seen the father and the child “arrive together alone”, and “leave together alone”, in a small silver sedan. However, Ms N said in her evidence, which I accept, that the small silver sedan is her motor vehicle, and explained, by reference to the physical configuration of the K premises, being a rural property, but on occasions she would get out of the car short of the homestead and sit separately to study or read (Ms N pursuing biblical studies), but that she could see the child and the father at all times “other than momentarily”.
I conclude, in all of the circumstances, that when Ms T saw the child and the father “arrive together alone”, and “leave together alone”, in the (Ms N’s) small silver sedan, she was referring to arrival to and departure from the actual homestead, and had not seen Ms N alight the vehicle a short distance away, after entrance to the property, but at a place where she had the father and the child in her vision “other than momentarily”.
This evidence would seem to indicate that the mother has the ability to elicit from the child positive statements by leading questions, which statements are untrue, and further to fabricate mistruths about the father.
The child’s relationship with the mother, thus, bears scrutiny as to the mother’s ability to cause the child to fabricate false stories about the father.
Willingness and ability to facilitate and encourage close and continuing relationship between the child and the other parent
The mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father, to date, has been affected by her apparent belief in the child’s disclosures. However, the mother properly has been anxious for the matter of the child’s disclosures to be fully determined, in the interests of protecting the child if there should be substance in them.
Ms B said, in this regard (report 21 March 2007, par 10.2.9):
10.2.9A decision needs to be made as to the most appropriate care arrangements for [the child] at the moment. The father has never resiled from wanting to at least share [the child]’s time equally with the mother. The mother’s concerns about the father and his impact on [the child] have similarly never waned and she fears his influence over her daughter. However, she is confused about what is the best solution for [the child] and looks to the Court for direction in that regard.
Conversely, the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother has been affected by the allegations against him, which he regards as the result of direct questioning and/or coaching by the mother.
Ms B, however, who has had association with the parties and the child since the first half of 2000, that is, for over 7 years at the time of the trial, and had provided four earlier reports dated 9 June 2000, 2 October 2001, 19 May 2003 and 6 November 2003, throughout that period of time formed the strong view that the father has a barely concealed agenda ultimately to exclude the mother from the child’s life. Thus, in her report (21 March 2007, par 10.2.3) Ms B said:
10.2.3 In my opinion, equal shared care is not an ultimate goal for [the father] but rather recognizes the reality of his situation and is a step closer to [the child] living with him full time and, perhaps, having nothing whatsoever to do with her mother. [The father] has the potential to be very vindictive and his comments about the mother being likely to feel “devastated” should [the child] choose to leave home in favour of living with him, in my view attests to his actual ultimate goal. Beneath his pursuit of more time with [the child], his absolute disbelief at the mother’s rejection of him as a husband has never been far from the surface and it is my view that, to his way of thinking, nothing short of devastation of the mother would compensate him for what he perceives her to have done to him. The danger here is that [the child] may be only a prop in a melodrama which still has some time to play.
Further, Ms B said:
10.2.8 I assume that the retrial will again address the issue of whether or not, by virtue of his behaviour with [the child], the father presented an unacceptable risk to [the child] of sexual abuse in 2003. It will also presumably address the current risk to [the child] – not only of sexual abuse, but also of emotional abuse – for instance of being alienated against her mother by a man who has demonstrated an ongoing capacity to strongly influence her and who makes no secret of his disapproval of the mother or his opinion that [the child] will eventually choose to live with him over the mother.
Ms B’s views, it must be noted, are expressed with conviction.
The likely effect of change
The relative proximity of the parties’ homes has the result that this did not arise as a significant factor.
Practical difficulty and expense
Similarly, this did not arise as a significant factor.
The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs
The father, more so than the mother, on the evidence, has the ability to stimulate the child towards intellectual and extra curricular activities, and appears to have given more thought to the child’s secondary education needs than the mother. I refer in this regard to the evidence that the father is keen to have the child attend the G School, at which he believes her talents and interests would best be nurtured, whereas the mother has considered the possibility of a school at H, but appears not to have given a great deal of thought to this important aspect of the child’s education.
However, as the child will not commence her secondary school years until 2011, I would not wish my observations to infer unfair criticism on the mother in this regard, particularly as, to date, the mother’s focus appears to have been on the litigation concerning the child (a trial, an appeal, and a retrial) and anxiety as to whether there may be unacceptable risk to the child in spending unsupervised time with the father, rather than the choice of her place of secondary education, yet some years into the future.
At the superficial level, there is no reason to think that each of the parties does not have the capacity to provide for the child’s emotional needs. Ms B however holds the opinion, to which I have referred, of the father intending ultimately to undermine the mother’s position. She also observed however (at par 10.2.5) that although the mother has “always recognized and acknowledged [the child]’s close relationship with [the father]”, “[The mother] may have at times acted inappropriately with the aim of causing [the father] to be seen in a negative light”.
Ms B (also at par 10.2.5) expressed the view that the mother “has been a positive role model for [the child] in that she has retrained for entry into the workforce and has secured a full time job which she loves and manages to hold down whilst also raising [the child]”.
Leaving aside for the moment Ms B’s adverse view of the father’s ultimate goal, which I would observe as the trial judge was not independently evident to me during the trial, the case is one in which I think each of the child’s parents has different gifts to give her in relation to intellectual stimulus, stimulus towards extra curricular activities, including sporting achievement, and emotional security.
However, the parties’ dislike for each other and mistrust of each other is a matter of which the child seems acutely aware, and is one with which unfortunately she will have to continue to deal.
Maturity, sex and lifestyle
Ms B said, as I have observed earlier, that the child is an “intelligent, well rounded and good natured person” who is “achieving well academically, continues with her music, enjoys her horse riding and is securely attached and fiercely loyal to both of her parents” (report 21 March 2007, par 10.2.1), Ms B describing the child also as an “extraordinary individual” (also at par 10.2.1).
The parties’ attitude to the child and to the responsibilities of parenthood
Each of the parties seeks actively to parent the child and to assume the responsibilities of parenthood concerning her.
Family violence or family violence orders
I have referred above to past family violence matters as to which, in addition to the parties’ own versions, I would refer to the affidavit of Mr P, a now adult son of the mother. However, there do not appear to be any current family violence issues.
Order least likely to lead to further proceedings
The history of the matter indicates that there is no order in my view which is less likely than another to lead to further proceedings concerning the child.
Conclusion as to whether equal time is in the child’s best interests
Having considered positively whether an equal time order would be in the child’s best interests, I have determined that it would not, for several reasons.
First, although the child has expressed the view that she would like to spend “half her time” with the father, that is, equal time, this is not only an untested experience for the child, but is against the background of her having spent relatively little time with the father since March 2003. Ultimately, an equal time order may be appropriate. However, if that is to occur in the future, there should be progression to that over the next few years, after the child has had the opportunity to spend increased time with the father, at which stage her views should again be obtained and assessed.
Secondly, although presently the child has expressed the view that she would like to spend “half her time” with the father, that is, equal time, she is not yet, I think, of an age at which too much weight should be given to her views, particularly as she expressed to Ms B (report, par 7.10) that she “thought her mother and father would get on well with each other”, if there be equal shared care, which, having regard to her age, perhaps indicates a hope rather than reality given the background of the conflict between the parties.
Thirdly, having concluded that the child’s best interests would be served by an order for equal shared parental responsibility for her, in my view it would be necessary for it to be demonstrated, before there be any equal time regime, that the parties successfully can cooperate in the equal shared parental responsibility role.
Fourthly, although I have concluded, on the evidence, that there is not an unacceptable risk of sexual abuse to the child from spending unsupervised time with the father, the child is yet to undertake, as I have indicated, a protective behaviour course.
Overall, in my view, it would be appropriate for the child to spend increased unsupervised time with the father for a few years yet, and if that is successful for the child’s views then to be further obtained and assessed, particularly having regard to her age now, and the history of the matter, before it would be appropriate confidently to determine that an equal time order would be in her best interests.
Reasonable practicability of equal time
In the circumstances, it is not necessary to consider whether an equal time order would be reasonably practicable.
Substantial and significant time
Section 65DAA(2) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, but I do not make an equal time order then I must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonable practicable, and if it is consider making an order for the child to spend substantial and significant time with each of the child’s parents.
I have referred above to Goode & Goode, at [64], as to the need to consider positively the making of an equal time order in relation to s 65DAA(1). The Full Court went on to say that the same applies to s 65DAA(2).
Thus, it is incumbent upon me to consider whether the child spending substantial and significant time with each of the parents would be in her best interests, approaching that consideration positively.
Section 65DAA(3) provides that, for the purposes of s 65DAA(2), a child will be taken to spend “substantial and significant time” with a parent only if the time the child spends with the parent includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays; the time the child spends with the parent allows the parent to be involved in the child’s daily routine and the occasions and events that are of particular significance to the child; and 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.
The child’s best interests – the statutory matters
I have analysed above, and again would refer to, the statutory matters which I must consider.
Conclusion as to whether substantial and significant time is in the child’s best interests
Having considered positively whether a substantial and significant time order would be in the child’s best interests, in light of the analysis of the statutory matters referred to, I have determined that it would, but that having regard to the history of the matter there be “lead in” time to this occurrence. Thus, I propose to make orders to provide for the continuation of the present arrangements for the balance of the current school term, which will end in about one month on 14 December 2007; the child spend specified time with the father in the 2007/2008 Christmas holidays, including one full week and two four day blocks, one in December 2007 and one in January 2008, with time also from 5pm Christmas Eve until 2pm Christmas Day; and then the commencement of substantial and significant time from the commencement of the 2008 school year, being, during school terms, in fortnightly cycles, in the first week from after school on Thursday until the commencement of school on Monday (Tuesday if the Monday is a public holiday or pupil free day), and in the second week overnight from after school on Thursday until the commencement of school on Friday; and commencing Easter 2008, half of all of the school holidays; together with special days, which will be included in the orders.
These orders will have the effect of gradually increased time, and meet also the definition of substantial and significant time from the commencement of the 2008 school year.
In my view, such time for the child with each of her parents would be in her best interests because it would allow her increased but gradual exposure to the father’s day to day care of her; allow planning, over the Christmas/New Year 2007/2008 holiday period for the increased substantial and significant time to commence in the 2008 school year; and, for the child, the commencement of the substantial and significant time with the father would coincide with the commencement not only of a new school term but also a new school year.
Overall, if there were not to be substantial and significant time which, as I have said, I am required to consider positively, the child would not have the benefit of increased exposure to the father’s stimulus of her intellectual and extra curricular pursuits and activities. Further, as has been observed, the child enjoys spending time with the father and the activities which he provides for her, and, in her best interests, she should have this exposure and enjoyment.
The gradual introduction of the increased time also will allow the mother ample opportunity to arrange for the child to attend a protective behaviour course either throughout the balance of the current school term or alternatively during such part of the Christmas/New Year 2007/2008 school holiday period during which the child will be with the mother. I would include in the order that the mother must ensure that the child’s attendance at such course not be at times the child is to spend with the father and may, if necessary, be during school hours, meaning during school hours in the next month.
In determining that the orders I propose to make are in the child’s best interests, I have had full regard to Ms B’s views as to the father’s “agenda”, expressed in her report at pars 10.2.3 and 10.2.8, set out above, and the circumstance that, at the time of her most recent report, 21 March 2007 Ms B had had involvement with the family for over 7 years. (“Agenda” in this context is my word, not Ms B’s).
For my part, however, I am unable to accept that the father has the agenda which Ms B describes.
Moreover, Ms B has also made observation of the mother acting at times “with the aim of causing [the father] to be seen in a negative light”; and there has been the mother’s concerning conduct during the trial, referred to at pars 152-157 above.
Thus, even if the father has the agenda which Ms B fears, neither party is free from blame in relation to the conflict surrounding the child, and Ms B’s views as to the father’s “agenda” thus are not a reason to deny the child substantial and significant time with the father.
Regrettably, it seems to me, each party has yet to learn that the child is not a possession or chattel, a prize to be won or lost, but an individual person separate from themselves for whom they are at present responsible.
Reasonable practicability
Section 65DAA(5) sets out the matters which I must consider in determining reasonable practicability, whether for an equal time order or a substantial and significant time order.
In relation to these matters, it is significant that the child’s parents live within reasonable proximity to each other, as I have mentioned.
On the evidence, the parties’ current and future capacity to implement a substantial and significant time arrangement is favourable because, despite the past and ongoing communication and other difficulties and conflicts they have had, and presently have, as I have observed above in relation to their ability to consult each other in relation to decisions to be made about the long-term issues concerning the child, there is no reason to think that their communications concerning the child ought not, as may be appropriate, be by telephone, post, text message or email.
Moreover, by the orders I will make, the parties each will have the duty to ensure that the orders successfully are carried out.
The impact on the child of a substantial and significant time order has not been the subject of specific evidence. However, the impact on the child of such an arrangement does not, on the evidence, present with any particular difficulty as to reasonable practicability.
Other matters
I propose to include in the orders specific provisions concerning changeover, namely that the party with whom the child has been spending time must for the commencement of time with the other party deliver the child at the times specified in the orders to the home of the other party with whom the child is about to spend time unless the commencement of time the child spends with a party is after school in which case that party must collect the child from her school at the conclusion of the school day and unless the conclusion of time the child spends with a party is before school in which case that party must deliver the child to her school at the commencement of the school day. In my view, such a changeover arrangement is one providing certainty for the parties as to their respective obligations.
There is no reason on the evidence not to allow liberal telephone communication between the child and the party with whom the child is not spending time, such communication to be at all reasonable times, to be initiated by the father when the child is with the mother, by the mother when the child is with the father, and by the child as reasonably she herself may instigate.
The father at the hearing specifically sought clarification as to his ability to attend at the child’s school, particularly having regard to difficulties between the principal of the child’s school, some of its teachers and the father (which evidence I have not specifically set out, but largely is contained in ex 1, third section). In my view, it would be in the child’s best interests to include an order that the parties may each attend at the child’s school for functions, events, ceremonies and activities which parents usually attend, and to participate with the child in such functions, events, ceremonies and activities to the same extent as usually permitted by the child’s school to the parents of children attending the school, but to include in that order that such attendance be subject always to the authority of the child’s school principal and its other officers in relation to such attendances by parents.
The evidence discloses difficulties between the parties as to the child’s attendance at extra curricular activities. It would thus be in the child’s best interests to include a specific order, to avoid conflict for the child, that the parties not arrange for the child to undertake any extra curricular activities other than those in which the child is presently engaged, without the written agreement of the other party.
Otherwise, the orders include specific provision for matters such as non denigration, information, authorisation, the parties’ communication and holiday information, as well as, as submitted, which I accept, that the parties attend upon a family consultant of the Court pursuant to s 65L of the Act to assist the parties to carry out these orders, and that if they are unable to agree any matters concerning the child relating to their equal shared parental responsibility they consult a family dispute resolution practitioner, or if they cannot agree upon the choice of such practitioner, a counsellor at a family relationship centre, to assist them to resolve any dispute concerning arrangements for the child, or to agree proposed consent orders varying these orders if that should arise, to avoid or minimise the prospect of further litigation. The orders include that the parties share equally the costs of such consultations, which aspect of the matter I do not understand to be contentious.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate
Date: 19 November 2007
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