Michelle and Horsley

FAMILY COURT OF AUSTRALIA

MICHELLE & HORSLEY

[2007] FamCA 279

FAMILY LAW - CHILDREN - Child related proceedings - With whom a child lives - With whom a child spends time - Best interests of a child – persistent allegations of child abuse against mother by father – allegation of sexual abuse disclosure against father where the disclosure was discounted by a reasonable explanation accepted by both parents

APPLICANT:

Michelle

RESPONDENT:

Horsley

INDEPENDENT CHILDREN’S LAWYER:

Deborah Ann Awyzio

FILE NUMBER:

BRF

3051

2006

DATE DELIVERED:

28 March 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Benjamin J

HEARING DATE:

23, 24, 25 January 2007 & 9 & 16 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cameron

SOLICITOR FOR THE APPLICANT:

SBA Family Lawyers

RESPONDENT:

In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Curran

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

DA Family Lawyers

Orders

THAT the Mother have the sole parental responsibility for the daughter born in March 2000 (“the child”).
THAT the child live with the Mother.
THAT the child spend time with the Father at all times as agreed in writing between the parties, but failing agreement, as follows:-
3.1.During school term, each second weekend from after school Friday until commencement of school Monday and in the event Monday is a pupil free day or public holiday, until commencement of school Tuesday, with the Father to collect and deliver the child from and to school or after school care.
3.2.For one half of all mid year school holiday periods, to be the first half in even numbered years and the second half in odd numbered years.
3.3.Except as is provided in these Orders for Christmas time, the Christmas/New Year school holiday periods as follows:-
3.3.1.first, fourth and fifth weeks in even numbered years;
3.3.2.second, third and sixth weeks in odd numbered years
3.4.On Father’s Day from 9 a.m. to commencement of school Monday or Tuesday if Monday is a public holiday or pupil free day.
3.5.Changeover is to occur at L Centre during school holidays, with each parent sharing the costs of the L Centre. In the event that the L Centre is unavailable then changeover shall occur at McDonalds at B.
3.6.As to Christmas Day and notwithstanding the above order, it is ordered that the child spend from 3.00pm on 25 December in each year to 3.00pm on 26 December in each year with the parent with whom the child is not otherwise living or spending time with over that period.
IT IS NOTED THAT
This order is to ensure that the child spends Christmas Eve and Christmas Day to 3.00pm with each parent each alternate year and 3.00pm on Christmas Day to 3.00pm on Boxing Day with each parent each other alternate year.
THAT this Order operates as an authority for both the Father and Mother to be provided with information (at their respective cost) from any school or other educational or health institution attended by the child or any medical practitioner attended by the child with respect to the child’s care, welfare, health and development.
THAT the Mother and Father;

5.1.Contact Relationships Australia on telephone (07) 3861 1422 within seven days of the date of this order and make arrangements to participate in the Children’s Contact Order Program.
5.2.Do all things required to participate in and to facilitate the child participating in the Children’s Contact Order Program with Relationships Australia (each party to ensure that they have completed this program within twelve months from the date of these orders).

THAT both parties are restrained and an injunction is hereby granted restraining them from the following:-
6.1.Denigrating the other parent to or in the presence or hearing of the child;
6.2.Physically disciplining the child.
THAT should the child require medical attention whilst she is in the care of the father, the father is to attend at the same medical practitioner as the child attends with the mother, unless medical attention is sought in an emergency or is otherwise not reasonably practicable to do so, in which case the father shall provide the mother with details of the medical practitioner that the child attended upon, within twenty four hours of such attendance, and the mother is authorised by these orders to liaise with such medical practitioner.
THAT each parent inform the other parent, as soon as is reasonably practicable but within two hours, of any serious illness or hospitalisation of the child or that parent.
THAT each parent shall keep the other informed as to such parents’ respective residential address and telephone numbers where the parents may be contacted.
THAT the mother be and is responsible for making decisions about the child’s school and choice of medical practitioners.
IT IS NOTED
THAT this is a matter to which s.61DA of the Family Law Act does not apply, a determination having been made under s.61DA(4) that the presumption is rebutted.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow. if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT the appointment of the Independent Children’s Lawyer shall continue for six months after the date of this order or such longer or shorter period as is otherwise determined by this Court.
THAT the Independent Children’s Lawyer and the mother have leave to provide a copy or copies of these Orders and the reasons for them to appropriate Officers of the Department of Families (Child Safety), any other relevant child welfare authorities (including Police), the Child’s General Practitioner, any relevant treating medical service provider and the Principal and relevant teachers and counselors at any school which the child attends or proposes to attend.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3051 of 2006

Michelle

Applicant

and

Horsley

Respondent

REASONS FOR JUDGMENT

These proceedings relate to disputes between the parties in respect of parenting arrangements with regard to their daughter born March 2000 and who is now aged seven (“[the child]”).
The mother seeks orders that the child reside with her, spend one half of the school holidays with each parent, spend time with the father each alternate weekend but otherwise live with the mother. The mother also seeks orders that she have sole parental responsibility for the child.
The father seeks orders that the child live with him. He seeks further orders that the mother spend time with the child every second weekend during school term and part of the school holiday period. The father seeks various other orders in relation to dealing with concerns he has about the mother’s behaviour which is set out in his response to an application for final orders filed 14 November 2006.
The Independent Children’s Lawyer seeks orders similar to those orders sought by the mother.
Background
The mother is aged thirty three and is in good health. The father is aged forty eight and he is in good health. The mother is presently the primary carer for the child. She has been the primary carer of the child since her birth.
Sharing the household with the mother and the child is a boy, aged twelve. He is a child of the mother from a previous relationship.
The mother alleges that the parties commenced cohabitation in 1997, the father alleges the relationship commenced in about 1999. In terms of these proceedings there is no significance as to the commencement date of the relationship.
The parties separated in late October 2001 with the child remaining in the care of the mother. The father and child spent regular time together since that time, except for a period from October 2004 to September 2005, which period is discussed later in these reasons.
The father made serious complaints about the mother’s parenting which are set out in the Independent Children’s Lawyer outline of case document (chronology). I invited the parties to make submissions, as to any matters of fact which they disputed from that chronology, no issues were raised with me and I accept that chronology. This is not to be taken as acceptance of the allegations made, by each party, against the other as set out in the chronology. Those allegations are dealt with later in these reasons:-
The history the chronology sets out is:

21.11.01	The father alleges that the mother refused to protect the child from infection by refusing to cover her son’s open cold sores.
10.12.01	The father alleges that he was contacted by C Medical Centre and advised that the mother had neglected to take the child in for her 18 month vaccination. The father subsequently arranged for the child’s vaccination.
17.12.01	The father alleges that the child is suffering from 20 swollen insect stings over her face and body as well as nappy rash. He alleges that when advised of this the mother became abusive, and he subsequently reported the matter to the Department of Families.
24.12.01	The father alleges that the child was suffering from a significant nappy rash which the father treated with cream. He alleges that when he advised the mother of this she became abusive to him, and he subsequently reported the matter to the Department of Families (Child Safety) with photographic evidence on 10.01.02 (a few months after separation).
18.02.02	The father alleges that he contacted the child’s daycare centre who advised that they had telephoned the mother’s residence and the mother’s son was the only one home. The father reported this information to Department of Families fearing mother was leaving her son with the child at home unsupervised. The mother denied that this occurred and there was no admissible evidence to this effect.
18.03.02	The father alleges the child had four “fingertip type” bruises across her back and hip and complained of being sore. The father took child to Dr T at P Medical Centre and the father advised the Department of Families.
08.04.02	The father alleges that the child had serious bruising and swelling to her left cheek. The father reported this to the Department of Families.
13.05.02	The father alleges the child suffered 15 swollen insect bites, on legs, which he treated with medication. The father reported this to P Medical Centre and to the Department of Families.
12.08.02	The father alleges the child was suffering from 32 swollen insect stings on her body which were treated by Dr D at P Medical Centre.
02.10.02	The child was diagnosed with hand, foot and mouth disease (the father alleges that she had been in mother’s care for the previous five days).
30.10.02	The child was diagnosed with bronchitis by the P Medical Centre.
19.11.02	A Legal Aid Family Law Conference was held between the parties and no agreement was reached.
09.02.04	The father alleges that the child disclosed to himself and to Dr L, of P Medical Centre, that she had been hit hard by her mother. The father notified the Department of Families
24.02.04	Dr L diagnosed the child with an infected eardrum, gastroenteritis and otitis media. The father alleges Mother left the child at daycare after such diagnosis.
24.05.04	The father noticed a “deep bruise” to left side of the child’s back and disclosed to Dr L that mother had hit her hard. Dr L referred the allegation to the Mater Hospital Child Abuse Unit.
25.05.04	Letter from Dr O from Mater Children’s Hospital to Dr R said: § Upon asking child how she obtained bruising she replied that mummy did it. § Asked about bruising to her shins she replied she fell down at kindy. § Also asked in relation to sexual abuse allegations against father- unsubstantiated by child.
21.09.04	The father alleges the child expressed a desire to live with him, and upon relaying this to her mother, the father alleges that the child said she was hit by the mother.
05.10.04	The father took the child to Dr N following another concern and child allegedly disclosed to him that her mother had hit her.
12.10.04- 13.10.04	The father alleges the child complained that her private parts were sore and as such applied nappy rash cream which appeared to settle her.
13.10.04	Last date of contact between father and the child until September 2005.
16.10.04	The mother alleges the child disclosed sexual abuse by father.
17.10.04	The mother spoke with a staff member of “Crisis Care” informing her of the child’s disclosure.
17.10.04	The mother contacted B Police Station and was referred to L Central Police.
18.10.04	The child was interviewed by Police at L Police Station. She did not disclose any information to the police.
19.10.04	The mother took the child to A Medical Centre who contacted the Mater Scan Unit, a medical examination was conducted on the child. The doctor did not notice anything abnormal and advised mother to obtain legal advice.
20.10.04	The father attended interview at Department of Families with a child safety officer.
20.10.04	The father contacted L Police asking whether he was required for interview.
24.10.04	The mother alleges the child did not want to visit with her father as intended on that day because he “touched her”. The mother kept the child home.
09.11.04	A letter was sent to father and mother from a Child Safety officer notifying the father that the assessment regarding disclosure was unsubstantiated.
22.11.04	The father alleges there was an intruder at his residence.
28.11.04	The father reported subsequent intruder to police.
13.12.04	The father reported subsequent intruder to police.
07.02.05	The child commenced attendance at a child sexual assault centre. A Letter from a child sexual assault centre states the dates the child had attended as; § 07.02.05 § 14.02.05 § 28.02.05 § 07.03.05 § 11.04.05 § 04.05.05 § 09.05.05 § 16.05.05 § 30.05.05 § 11.07.05 § 18.07.05 § 29.08.05 § 26.10.05 § 11.11.05
20.04.05	The Mother alleges that her son recalled incident where he and the father had a shower together and the father asked him to touch his penis.
05.05	The father reported subsequent intruder to police.
10.06.05	The mother applied for a residence order by application to the Federal Magistrates Court.
17.06.05	The father reported to J Police alleging that photos he had taken of the child documenting abuse by mother had been stolen.
11.07.05	The parties attend Court ordered mediation.
18.08.05	A neighbour notified the mother that she had received a visit from a woman, advising her she was from DOCS, investigating an incident where mother was allegedly seen hitting children in a bank. The mother attended B Area office where she was informed that they had not received any notification of any abuse and as such there would not have been an investigation.
04.09.05	The father had his first supervised contact visit with the child at the L Centre.
18.09.05	The father had a supervised contact visit at L Centre.
02.10.05	The father had a supervised contact visit at L Centre.
05.10.05	The father filed response seeking an order that the child reside with him.
09.10.05	Letter from L Centre advising that child had had head lice when mother brought her to the centre for orientation on 20.08.05 and that the next visit had to be cancelled in view of this. The father reported that child’s hair had been changed and dyed by mother.
10.10.05	Letter to Mother’s solicitor from G child care regarding concerns re father putting nappy on child when the child was fully toilet trained and constantly inspecting her body for markings.
13.10.05	Order of Federal Magistrate Rimmer providing; § Mother to have residence. § Father have contact with the child as agreed between the parties, and failing agreement, the father continue to have supervised contact at the L Centre on one occasion each fortnight.
19.01.06	Parties attended upon Ms J for interviews for a family report.
09.02.06	Order of Federal Magistrate Rimmer for parties to attend upon Dr C for psychiatric assessment.
27.02.06	Mother attended upon Doctor C.
01.03.06	Father attended upon Doctor C.
25.05.06	Order of Federal Magistrate Housego for Father to spend every second weekend with the child, unsupervised.
17.07.06	Order Federal Magistrate Jarrett – trial directions.
05.10.06	The parties attended upon Ms J for updated report interviews.
10.10.06	Updated report of Ms J.

On 16 October 2006 the mother alleged that the father made disclosures to her which could constitute sexual abuse of the child by the father. The mother spoke with a crisis centre worker and contacted the local police. The child was interviewed by the police and subsequently had a medical examination. The father attended interviews and on 9 November 2004 the Department of Child Safety forwarded a letter, to both the father and mother, informing them the outcome of the assessment, conducted by the Department, did not substantiate the complaint of sexual abuse and the Department withdrew its recommendation that the contact between the father and the child be supervised.
Notwithstanding this determination on 9 November 2004, the child did not spend time with the father until 4 September 2005 (some eleven months after the previous contact). That contact was supervised until 25 May 2006 and from that time the child has spent each alternate weekend with the father, pursuant to orders of Federal Magistrate Housego, made 25 May 2006.
Proceedings were commenced by the mother, in the Federal Magistrates Court, on 10 June 2005 and the parties attended mediation on 11 July 2005. The proceedings were transferred to the Family Court on 17 July 2006.

The relevant legal principles pursuant to the Family Law Act

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
[1] s 60B(1) Family Law Act 1975 (Cth).
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] s 60B(2) Family Law Act 1975 (Cth).
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a 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[4] for the child. The section provides as follows:
[3] s 61C Family Law Act 1975 (Cth).
[4] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 60DA           Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)         family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[5] s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b           to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[6] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[7] s 61DA(3) Family Law Act 1975 (Cth).
[8] s 61DA(4) Family Law Act 1975 (Cth).
A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
[9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.
How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
The approach to be adopted by a court is structured.
The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[10] where her Honour said;
[10] G and C [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66This is a case where both of the primary considerations are relevant.

The benefit of a meaningful relationship – as a primary consideration.
67The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
70The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).

71     The arguments supporting the second possible interpretation include;
(a)     Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)      The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

71My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court to make such a determination.
The evidence and issues.
[12] Ibid paragraph 68.

The credibility of both the mother and father were raised during the course of the proceedings. Mr Cameron, for the mother, submitted on a number of fronts the father’s evidence should attract a finding that he was argumentative, unresponsive, evasive and his evidence ought not to be believed.
The father submitted that his evidence should be preferred above all others as he was the only one who applied any degree of accuracy in terms of recollection and record keeping.
I prefer the submission of the mother. There were several incidences during the trial when I find that some of what the father said was untrue and that he demonstrated a tendency to exaggerate.
It is not possible for there to be complete accuracy particularly over events that occur over a long period of time. But when it becomes necessary to assess the reliability of evidence, it can be expected that parties take care in presenting their evidence and do so in an accurate way. The father is convinced as to the merits of his own cause. As a consequence, while the mother’s evidence is sometimes vague in details, particularly where there is conflict or dispute about facts, I prefer the evidence of the mother, unless the contrary is corroborated or supported by evidence other than that of the father.
The father raised a number of issues relating to the mother’s care of the child and they are set out in the affidavits and in these reasons.
The first of these issues was that the mother had engaged in systematic physical abuse of the child, and her brother from before separation up until October 2004. The father’s evidence was that he observed the mother hit her son across the head or face very hard on at least five or six occasions during the course of the time that the parties resided together. This is somewhat different to a report allegedly made by the father to the Department of Child Safety where a record shows the father asserted there were some twenty such occasions. The father said that during that time the mother also smacked the child and on one occasion smacked her on the leg. Since that time the father said that the child has exhibited bruising consistent with physical abuse, including allegations of “finger mark style bruises” on the child’s back, which are set out in the father’s affidavits and the file from the Department of Child Safety.
The father also alleged that between the date of separation and October 2004 that the mother consistently neglected the child, these can be seem in his allegations about insect bites, nappy rash, leaving the children home alone, failure to respond to illnesses and infections. I find that the child was not neglected by the mother and that these incidents raised by the father were no more than normal events in the day-to-day events of a child which have been dramatised, exaggerated and blown out of proportion by the father.
There have been numerous investigations by the Department which were almost all generated by complaints made by the father. These complaints were often trivial and were constant. They reflected the father’s hyper-vigilance and lack of insight as to their effect on the mother and on the child. The impact of this behaviour was to make the task of the mother, in caring for the child, difficult. The mother needed to explain insect bites, almost every bruise, almost every illness as the father applied sinister background to many otherwise innocuous events.
The mother said she sometimes disciplines both of her children with a gentle slap but denied the abuse alleged by the father.
The father complained that some medical practitioners do not properly record information provided by him and further complained that the records of the Department of Families are not properly kept and they do not properly reflect the complaints made by him.
The mother gave evidence that for the period from the date of separation, the father was and remains hypervigilent with regard to the child. He inspected her carefully on many occasions when she came into his care. I accept that that is the case.
Evidence was provided by a child care worker, Ms B who observed[13];
“I recall when [the father] would collect [the child] at the commencement of his contact period with her, he would regularly examine [the child] for bruises, bites or any marks on her body”.
[13] Affidavit filed 10 October 2006, paragraph 6
I accept that evidence of Ms B.
The family reporter, in her report dated 22 January 2006 (“the first report”), observed;
“76.Since separation, the father has made numerous complaints to the Department of Child Safety about the standard of the mother’s care. None of these have been substantiated. He conveys the Department of having neglected their duty of care, responding to each individual complaint and never looking at the whole picture.
77.In reviewing the nature of his concerns, it is my view that he has a somewhat obsessive attitude about parenting issues. He has formed the view that the mother is below par. He has been impervious to comments by authorities that his concerns do not warrant intervention. He has continued to pursue his stance and his over-focus on this has reached a stage where his actions probably constitute abuse.
78.Notwithstanding his attitude and relentless criticism of her, the mother continues to provide him with contact for two days per week. The family continued in this matter without formal court orders”.
In her second report dated 24 October 2006 the family reporter observed [14]
“40. There are ongoing allegations about one or other parent playing with [the child’s] mind. The indication suggests that the father is doing some of this. It is beyond the scope of this report to confirm this, or indeed to comment on whether the mother may be doing it to some extent too”.
[14] Paragraph 40.
The father’s approach to the child was reflected in the material provided in the affidavit, of Ms P, filed 3 February 2006. She made observations of the father. They were not complimentary.
She gave evidence of the father’s concern about the child allegedly having her hair dyed. In respect of that issue, I accept the evidence of the mother that the child’s hair had not been dyed. Even if the child’s hair had been dyed, it is a hardly remarkable event. The father alleged that it was done to conceal the child from him. Yet the hair colour change, alleged by him, was at a time when the mother allowed contact at a contact centre prior to any Court orders.
More importantly, the father seemed to wish to engage the child in the adult dispute and in relation to the proceedings. On a number of occasions at the Contact Centre supervisors had to re-direct the father’s conversation. He endeavoured to engage the supervisor, at the Contact Centre, to support him in his case. He produced photographs and his behaviour was not in the best interests of the child.
A report was prepared by Dr C to assess the parties psychiatrically. In his report dated 2 March 2006 he observed of the father:
“Summary and assessment”
This forty seven year old man does not have an Axis 1 psychiatric disorder. He does however, have a significant narcissistic personality traits together with a degree of obsessionally although I do not think this was in any way pathologic. There is certainly not evidence of Obsessive Compulsive Disorder.
I thought that [the father] really could not explain terrible clearly the multitude of reports from the Department of Child Safety and particulars as to why these commenced after separation and not when he had a number of concerns prior to separation”.
I find that the complaints made by the father, to the Department of Child Safety, were either trivial, exaggerated or false. I accept as accurate the assessment of the father by both the family reporter and Dr C. I find that the mother does not abuse the child nor is there is any unacceptable risk of abuse by the mother of the child.
The father raised concerns about the interaction between the child and the mother’s son, the children having some six years difference in age.
Evidence was provided that the mother’s son had difficulties at school and was in need of assistance. At school he had been engaged in fighting and other unacceptable behaviour. The mother conceded that this behaviour was not acceptable and that she had engaged with the school to deal with that behaviour. Her evidence was that the mother’s son’s behaviour improved in the second half of 2006.
The father asserted that the child had complained that the mother’s son had “peeped” at her when she was in the shower. The mother said that with the bathing arrangement at the home that was not possible. I accept the mother’s version of that event.
The father complained that the mother’s son had pulled the child’s pants down on a number of occasions. The mother conceded that this happened in the normal play between siblings, but that when she had seen it she had stopped it, and that it was within the normal range of behaviour of children. The father also asserted that the mother’s son had threatened the child with a knife. The explanation was that the children had been playing with plastic barbeque knives, that they had not suffered any injuries and the mother had them stop the behaviour. Similarly, the father asserted that the children engaged in “rough and tumble” intimidation, fighting and aggressive and violent behaviour. The mother denied this occurred at least to the extent alleged by the father and I accept her evidence in that such interaction between siblings falls into the normal range of expected behaviour..
The allegation in this regard falls into the area of exaggeration on the part of the father. On the evidence before me I am satisfied that there is some sibling interaction between the mother’s son and the child but it is not such as to cause this court any concern. I accept the evidence of the family reporter when she observed in her second report [15];
“32.I see no indication of an unhealthy relationship between [the child] and [the mother’s son] such as [the father] fears. They have grown up together closely despite a substantial age difference. They have their normal sibling rivalry in competition. [The child’s] “complaints” about [the mother’s son] fall into the range of normal conflict”.
[15] Paragraph 32
The mother gave evidence of a disclosure, by the child, which took place on 16 October 2004. This disclosure was subject to police and Department of Child Safety investigations. It had the consequence of the child not spending time with the father for about eleven months and then by way of supervised contact for a period thereafter. In her affidavit filed 10 October 2006 the mother deposed as follows:
“46.On or about 16 October 2004 I was driving my car with my daughter […]. My daughter had a bottle of water between her legs. My daughter said out of the blue “do not kiss me there”. I asked [my daughter] “who kissed you there my darling”. Did someone kiss you there?” She then said to me. “I can’t tell you mummy”. I then asked “Why can’t you tell me”? and she then said “Daddy told me not to tell you”. After [my daughter] had said this to me I was shocked. I proceeded to tell her that she could tell me anything and that I loved her and would not do anything to hurt her and that I would not tell anyone else. After I said that, I continued to ask her in a very soothing way, “Who kissed you on your wee wee honey” as this is what we called her genitalia. [the daughter] replied “My Daddy did”. With this information I asked her how her father had done that. She leaned over towards my vagina (from a distance) and role played what she had encountered. I said to [her] “That isn’t’ very nice is it”? She said to me “No mummy that’s not good is it”. I said to [the child], “No it is not nice, no one is allowed to touch you there, not even your daddy”. I asked her if anyone else had done anything like this to her and she responded by saying “No mummy I can’t tell you”. I asked why and she said that “Daddy said not to tell, he is my best friend”.
47.I reminded [the child] that she could tell me anything and that I wouldn’t tell her father. She began to shock me even more with the actions of what had been done to her. I do not know how to describe it in words but she role played what happened, which was, [the child] placed a finger on the outside of her clothes and said that “he does this to me and it hurts”. [The child] then said that she did not want to talk about it anymore. I complied with my daughter’s wishes.
48.I felt terrible that I did not pick this up earlier as I recall her behaviour at bath time about 4-5 months ago when she closed her legs very tight and wouldn’t let me bathe her between her legs. I asked [the child] what was wrong and she had said that “Daddy hurt me there”. I asked [the child] whether she meant that her father washed her there too hard and she said “yes”. [The child] now is old enough to bath herself however occasionally I will grab the washer and run her down with it and she continues to keep her legs closed.
49.I was concerned about this behaviour and made an appointment to see a doctor on 17 October 2004 however I did not get to see the doctor, but a lady on the front reception of the doctor’s clinic gave me some telephone numbers to call. I spoke with [Ms G] at the Crisis Centre and she told me that she would give the information to the right people as soon as possible and that I would receive a phone call either that night or the following morning (18 October 2004).
50.On the evening of Monday 17 October 2004 I telephoned the Police Station at [B] and spoke to a [Constable M] who advised me that I should take my daughter to the [L] Police Station.
51.On Monday 18 October 2004 I took myself and my daughter to the [L] Police Station as I had been advised to do this by [Constable M] of [B] Police on the night of 17 October 2004. My daughter was interviewed by [Senior Sergeant S] of JAB and I am aware that during this mattering [the child] had not disclosed any information to the officer. I was advised to let the respondent father know that she would not be at day care and will be with me until further notice.
The father asserted that the disclosure by the child was “manufactured” by the wife so that she could control the child.
I accept the mother’s evidence that the disclosure was made to her, and like the mother’s attitude now, I find that the disclosure has an innocent explanation.
When hearing the mother give evidence and looking at her responses I find that she jumped to a conclusion that the child had been abused. The mother was driving a motor vehicle on a Saturday morning in relatively heavy traffic when this disclosure was made.
The mother now agrees that there is an innocent explanation and that she is satisfied that the child is not at risk by the father and is satisfied the father did not sexually abuse her.

She said, and I accept, she was quite upset by the disclosure but she felt she needed to go through the process so that the child was protected. She took the child to counselling organisations and said that she now regrets the outcome. I am critical of her not acting on the letter from the Department of Child Safety in November 2004 recommending that unsupervised contact occur. There was no contact until September 2005. The mother ought to have recommenced contact between the child and the father in late 2005.
However, whilst I find the mother ought to have put in place arrangements for the child to see her father, I find that the mother had been subjected to continual and persistent investigation at the hands of the father which, in the words of the family reporter [16];
“77.He has been impervious to comments by authorities but his concerns do not warrant interventions. He has continued to pursue his stance and his over-focus has reached the stage where his actions probably constitute abuse”.
[16] First report paragraph 77
After the disclosure made by the child on 16 October 2004 the father had no physical contact with her until 4 September 2005.
The parties had had some confidential negotiation/mediation which led to an agreement having been reached for the supervised contact.
These proceedings came before Federal Magistrate Rimmer on 13 October 2005 and consent orders were made with regard to the continuation of the supervised contact and appointing an Independent Children’s Lawyer to represent the child.
Considering the evidence regarding the disclosure by the child on 16 October 2004, I am satisfied, on balance, that there was no sexual abuse by the father with regard to the child. I am equally satisfied that there was no fabrication of the story by the mother and I am satisfied that the child is not at risk of sexual abuse at the hands of the father. I remain concerned at the father’s over-focus on this child and his continuing minuscule examination of every aspect of her life with the mother.
I am satisfied that the mother provides appropriate care for the child and that her accommodation is satisfactory and arrangements regarding her eduction and health care are appropriate and well settled. The mother now facilitates the time the child spends with the father, and did so up to October 2004 and subsequent to September 2005.
It was asserted by the father that the mother had threatened to “adopt out” the child. I accept the mother’s evidence in relation to that issue, that is that she made no such threat.
It was further asserted by the father that the mother neglected to toilet train the child. I accept the mother’s evidence in that regard. The father asserted that the mother does not provide proper meals for the child. On the evidence before me I am satisfied that she provides proper nutrition for the child. I find that the communication between these parties is appalling and they both, to one degree or another, need to takes some steps to manage this issue, and orders will be made to endeavour to address this problem.
The father asserted that the mother had, within six months after separation, left her son unsupervised. This evidence came by way of hearsay to the father, although, in a report to the Department of Child Safety he asserted that he had made the call himself. There was no admissible evidence supporting this allegation. I accept the mother’s evidence that the child was not left alone and that she does not leave the children home alone.
The mother was cross-examined by the father as to her friends and whether they were boyfriends and the nature of the relationship. The mother said that she had friends visit but was not in a relationship. She said that she was concerned not to enter into a relationship as it would inflame the difficult situation between herself and the father. It has been many years since separation and it is a reflection of the impact of the father’s persistence and lack of insight that the mother has been reluctant to form a new relationship. I accept the mother’s evidence in that regard.
During the course of cross-examination the father submitted that the evidence of the mother with regard to the allegation of the disclosure on 16 October 2004 changed significantly between her affidavit of 10 October 2006 and her affidavit of 10 June 2005. The versions were almost identical. I raised with the father the need to be frank with the court and that his assertion that they were fundamentally different amounted to his concerns that one version did not have “apostrophes” or “inverted commas”. The father could not see the impact of his obsessional behaviour even in issues such as this.
The father was critical of the mother in terms of immunisation of the child. He said that it was necessary for him to undertake a number of these duties. The mother gave evidence that the father took the immunisation book and has not returned it to her. I am satisfied that the child’s immunisation is up to date and that the immunisation book was taken by the father.
The mother is scared of the father in that he is loud, threatening and domineering. She says she needs someone to be with her when she communicates with him. I have seen the father in these proceedings and he has little insight into the impact of his behaviour. He is threatening and appears to try and dominate others from time to time.
Ms C gave evidence in accordance with her affidavit. She was cross-examined in relation to an interview by an unknown person. I attach no weight to that interview and I form no adverse views of either the father or the mother in relation to that interview. Ms C provided some limited evidence as to the mother’s capacity to care for children.
Evidence was provided by Ms B in her affidavit sworn 10 October 2006. Ms B is the child care director of a pre-school. Her qualifications were unchallenged and she gave evidence of the child’s involvement at a pre-school through 2002 to 2004. She was an impressive witness and I accept her evidence.
As referred to above, she gave evidence of the father’s examination of the child for signs of bruising etc. In addition, she gave evidence of father putting a nappy on the child when she was nearly four years old.
This witness expressed to the father some concern about putting the nappy on the child when he collected her. The father replied to her “he lived an hour a way and wasn’t stopping for [the child] to go to the toilet”. This witness pointed out this could cause some embarrassment to the child. Her evidence was that he continued putting nappies on her when she observed him.
The father gave evidence that the child had, on one occasion, gastro-enteritis. I do not accept his explanation and I prefer the evidence of Ms B.
During the course of the proceedings the father sought to cross-examine the mother in relation to conversations the parties had with a confidential counsellor, Ms N, shortly after separation. Counsel for the mother objected to this area of questioning on the basis that it related to a confidential communication. The father agreed that it was counselling in relation to children’s issues. Questions in relation to that counselling were ruled inadmissible.
Later in the proceedings the father indicated that he had issued a subpoena to Ms N in respect of her giving oral evidence. Bearing in mind the ruling I had made earlier I released Ms N from the subpoena. The father had not endeavoured to file an affidavit by Ms N nor had he offered a reason as to why her oral evidence ought to be available. Furthermore, from the evidence provided by the father her evidence would be inadmissible under s10 of the Family Law Act.
There was an issue regarding an allegation, by the father, that the mother had dyed the child’s hair to a black colour. I have made findings earlier with respect to this issue in these reasons.
The father alleged that the mother dyed the child’s hair black and that this was contrary to the best interests of the child, in that it was designed to hide the child from the father and would have caused the child significant pain or discomfort.
From the affidavit of Ms P sworn 11 February 2006 (“[Ms P’s] affidavit”), it appears that on 18 September 2005 (the father’s second supervised contact with the child) the father said:
“Her mother dyed her hair”.
Ms P is a supervisor at L Centre and provided a report in relation to the contact between the father and the child between September 2005 and January 2006.
This was the subject of concern, for the father, at the visit on 16 October 2005. At that time the father produced photographs to Ms P. The evidence of Ms P on 16 October 2005 was that:
“At the conclusion of [the father’s] visit with [the child] he [the father] and I went outside to talk. Once seated, [the father] stated that he had brought evidence that [the mother] had dyed [the child’s] hair. I responded by saying that whether [the mother] had or had not, was not the concern of the Contact Centre, and that our responsibility lay in facilitating his visit with [the child] [the father] presented as having some difficulty in accepting this boundary. His voice was emotional and his body tense as he stated, that dying the hair of a five year old child was not the behaviour of a responsible parent. It was very apparent, that [the father] wanted my agreement with him on this as he re-phrased his words several times by asking, whether I would dye my child’s hair and did I know anyone else who had done it? What would I think if it could be proven that [the child’s] hair had been dyed?
29.[The father] then produced some photographs of [the child] which he spread out on the table and directed me to look at. When I declined to do so [the father’s] agitation increased and he stood up, pointing his finger at me and then to the photographs as he repeated, “look at them, you can see”. When [the father] sat down I gently reiterated my previous comments about the visit being for he and [the child] to enjoy time together. [The father] then rose to his feet again, and in an intimidatory manner leaned forward over me, pointing his finger at me and asked who my superior was. I replied that it was the Clinical Manager, [Ms H] and confirmed that she was on the premises and I would, if he liked, go and ask her if she was available to speak with him. As I stood and moved away from the table, I saw [Ms H] approaching. Once out of [the father’s] hearing I outlined the issue to [Ms H] and she indicated that she was willing to speak to him about the issue. I then returned to the office. I am aware that [the father] and [Ms H] spoke for approximately thirty minutes outside before resuming their conversation in [Ms H’s] office for approximately thirty minutes”.
From the evidence of Ms P it appeared that the father continued to be concerned about the child’s hair colour on 27 November 2005 and 8 January 2006.
On 8 January 2006 the father identified to the supervisor what he believed was the child’s natural hair colour. The child said “mummy didn’t dye my hair, the hairdresser did”.
In his affidavit sworn 6 November 2006 [17] the father observed:
“[The child’s] hair was definitely dyed black as I could see light blonde patches at the back where the dye had missed parts”.
[17] Paragraph 21(a) page 36 of 52
Evidence in the form of an affidavit from the father’s neighbours was admitted without challenge whereby they asserted that:
“We believe [the child] had light sandy brown hair prior to 13 October 2004. As [the father] is our next door neighbour, his daughter, [the child] played with our children on a regular basis”.
In her affidavit filed 10 October 2005 the mother said [18];
“Further, I deny any suggestion by the father that I have altered the appearance of [the child] and in particular dyed her hair. I acknowledge that [the child’s] hair has grown out from a “bob” haircut”.
[18] Paragraph 38
The mother denied that she dyed the child’s hair.
The father tendered in evidence three photographs being exhibits F7, F8 and F9. The first two photographs were those which the father said he produced to Ms P.
The mother’s evidence was that the child’s hair changed depending on the amount of sun it had on it. On cross-examination she denied using dye on the child’s hair. She said that in terms of her son he had tips of his hair dyed blonde.
The photographs were not of assistance in determining the colour of the child’s hair as at September 2005.
From the evidence of Ms P it appears that the alleged change in hair colour was not observed by the father until the second visit in September 2005. The inference the father wishes me to draw is that the hair was changed to hide the child from him. I do make that inference.
It is of concern that such an issue would occupy so much time in the trial and would occupy the attention of the father for such a long period of time. I prefer the evidence of Ms P, to that of the father, in relation to their respective evidence. The father raised the issue of the child’s hair in her presence, many months after the discovery of the alleged hair colour and the child responded. The father lacks insight into how his actions can impact on the child.
In cross-examination the father denied that he was agitated or intimidatory. Yet in cross-examination he agreed he said to the staff at the Contact Centre
“I pay to be listened to here”.
I find that his evidence in relation to the events that day was that it ought not to be believed. He said he did not point his finger at Ms P, he was simply talking with both of his hands in the salute, rather like “Italians speaking with their hands”.
On listening to his evidence and watching his demeanour in the witness box I am satisfied that he was intimatory to Ms P. I find his responses to questions in this area, and others, to be glib and often had a sense of making up a story to fit the particular circumstance in which he found himself..
The father asserted that the record keeping of Ms P was inaccurate. I do not accept his evidence or submissions in that regard.
In terms of the comments made by the child on 8 January 2006, I infer that comment came as a consequence of information or thoughts fed to her by the father.
The father is a tall man who is powerfully built. His voice is generally loud.
The mother complained that the father inspects the child on almost every occasion when she came into his care. This contention was supported by the evidence of Ms B[19].
[19] See paragraph 27 of these reasons.
She further observed [20].
“8.Whilst [the child] was placing the nappy on [the child] and changing her clothes, he would inspect her body for markings of any kind and then proceed to question [the child] about how she got the marks. I noticed that [the child] would become quiet and suck her thumb whilst her father would inspect her”.
[20] Affidavit of [Ms B] filed 10 October 2006 paragraph 8.
I prefer her evidence to that of the father.
During the course of the evidence, the father initially conceded that he inspected the child, but later resiled from that position giving evidence that he may have inspected her on one in four occasions and only when there were bruises or marks, which were the subject of complaint by the child, or what he regarded as obvious evidence of abuse. I do not accept his evidence in that regard.
Ms P in her affidavit observed, and I accept, that after the father had attended at the interview on 6 August 2005 he later telephoned her. She said [21]
“Later, on the same day (6/8/05), I received a telephone call from [the father]. He asked if, when he arrived for contact visits with [the child], he would be allowed to examine her for marks or bruises. I replied that he would not. [The father] then asked if the staff would conduct an examination of her and I replied, that they would not. I informed [the father] that if any markings were observed on [the child], or she spoke of being hurt anywhere or by anybody, we would address the situation as it presented. We would not, and he would not, be permitted to invade her privacy”.
[21] Paragraph 16
I accept the evidence of Ms P in that respect. Further, the family reporter in her report dated 22 January 2006 observed:-
“46.There is a reference from [G] Child Care Centre in court documentation noting [the father’s] pattern of checking [the child] for bruising and other marks each time he collected her from the Centre.
47.[the father] agrees that he made these inspections because of the consistency of [the mother’s] abuse and neglect. He denies that he did it every time, mostly only when [the child] complained of being sore”.
This later comment was consistent with the comment given by the father during cross-examination. In the second report the family consultant observed:
“30.I note that [the father] asked [the child] immediately upon seeing her about how she got a scratch on her face. [The child] said that she didn’t know, which was of course not the case – she got it at a vacation care. In itself, his focus on this is unremarkable. However I note the old pattern of checking her at the beginning of each visit for bruises and cuts”.
The father denied that the incident set out in paragraph 30 was a factual account from the family reporter. I prefer the evidence of the family reporter.
During the course of his cross-examination there was an issue as to how the father reacted to the observation of bruises or scratches. His evidence was that when he saw a mark or a bruise that caused concern, he would gently ask the child as to how it occurred and only then would he report the matter to the Department of Child Safety. I do not accept his evidence in that regard.
In his affidavit filed 5 October 2005 the father asserted that on 8 April 2002 the child had serious bruising and swelling on her left check which he reported to the Department of Child Safety. The mother followed him to the Departmental office and tried to take the child from his care. There was some issue as to the date when this event occurred.
The father made it clear there was only one occasion when the child had a bruise on her face. The mother’s evidence was that this occurred when the child had bumped into a bed post. Although there is some indication that she may have said that she bumped into a wall to the Department of Child Safety.
The father said he made one complaint to the Department of Child Safety in relation to this event and that was at the time. He said he did not discuss this with the child as she was only about two years old at the time.
His evidence changed, as the case progressed, in relation to this incident. In later evidence he asserted that the event took place outside the office of the Department of Child Safety and that he was referred to the Crisis Centre and no report was made. A record, however, seemed to show that a report may have been made in 2004.
The mother asserted that she put the reason for the injury in the communication book and that the father did not give her an opportunity to explain. I accept and prefer her evidence in that regard.
In the father’s affidavit filed 6 November 2006 the father said [22]
“As the abuse and neglect on [the child] got worse it was obvious I could not counsel the mother out of her abusive attitude. I saw no other choice but to start reporting her to Child Safety and hoped that she would control herself. I would only report the mother for physical abuse when [the child] told me, “mummy hit me”, or words to that effect and I could see the bruises”.
[22] Paragraph 21 page 11 of 52
I do not accept the father’s evidence in this regard. His complaints to the Department commenced in December 2001 which were within two months of the date of separation. I find that he was looking for reasons to complain to the Department.
The father had a tendency to exaggerate in his evidence. For example the mother moved the child to a day-care centre closer to her home and he asserted, in his affidavits, that it was some twenty kilometres away from where he lived. However in evidence in chief he asserted that it was some thirty kilometres away.

The issues of violence have been dealt with in these reasons and I do not propose to repeat them under this factor except to say that I have taken into account all of the allegations of violence alleged against the mother by the father, against the mother’s son by the father and in respect of the issue arising in October 2004.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no family violence order which is relevant to these proceedings.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
As I have said earlier in these reasons the father is unlikely to accept this decision. There is little that the Court can do about that except report it in these reasons. To put the parties in a position where they need to have joint equal shared parental responsibility would, inevitably, lead to further proceedings. In so far as the time that the child spends with the father, I believe he will seek more time notwithstanding the findings in these reasons. At one stage during the course of the trial I raised with the parties the question of the child living a full week with the father during each school term. However, taking into account all of the facts and circumstances and findings in these proceedings I am not satisfied that would be in the child’s best interests. I make these findings for the reasons set out above and my concerns about the father’s ability to put the child’s interests ahead of his own concerns and the father’s inability to reflect upon himself.
(m) any other fact or circumstance that the court thinks is relevant.
In his final submission, the father went into great detail in respect of the affidavit evidence. The father expressed his outrage at the allegation made in October 2004 and its impact on his relationship with the child. As I have said earlier in these reasons the mother is to be criticised for her delay in restoring the time the child spends with the father. However, this case is concerned about the best interests of the child and not dealing with the father’s upset as to the events that occurred that year. As I have said earlier I find there is no malice in terms of the disclosure, it was a misunderstanding which the mother has, to her credit, accepted. I have considered the detail of the final submissions of the father (which go to ten closely typed pages) and all of them its seems either specifically or generally have been dealt with in these reasons.
In coming to these conclusions, I have considered the extent to which each of the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent, as is required under s60CC(4). In terms of that provision it is simply to reiterate the matters set out above.
Similarly I have had regard, in particular, to the events that have happened and the circumstances that existed since separation has occurred and again I reiterate the matters set out in these reasons.
Taking all of those considerations into account, I determine that the orders that are set out at the commencement of these reasons are in the best interests of the child and are more likely to give effect to the objects set out in s60B of the Act, in accordance with the principles underlying those objects.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Horsley & Michelle.

I certify that the preceding 216 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate:

Date: 28 March 2007

[2007] FamCA 279

28 March 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness