Murphy and Curtis

[2016] FamCA 474

FAMILY COURT OF AUSTRALIA

MURPHY & CURTIS [2016] FamCA 474

FAMILY LAW – CHILDREN – Relocation – Where there is allegation of abuse - Where it is in the child’s best interests to relocate with her mother – Where it is in the child’s best interests to spend time with her father.

Family Law Act 1975 (Cth) s 4, s 60CC, s 60CC (2)(a), s 60CC(2)(b), s 60CC(3)(b), s 61B, s 61DA(1), s 61DA(2), s 61DA(4), s 65DAA(1) & (2)

Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) FLC 91-979

APPLICANT: Ms Murphy

RESPONDENT: Mr Curtis

FILE NUMBER: CAC 162 of 2012

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 30 November 2012, 3 and 4 December 2012, 31 January 2013, 4 and 7 February 2013; written submissions received on 6 March 2013, 9 and 16 April 2013, 14-17 December 2015; written submissions dated 16 December 2015 and 21 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tonkin

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Godtschalk and Ms Simpson

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. The mother, Ms Murphy, will have sole parental responsibility for the child, N (“the child”), born … 2006. 

2. Notwithstanding Order 1 above, the mother will:

   (a)Authorise and direct any school or educational facility which the child may attend to provide upon request from the father and at his expense copies of all reports, notices and information about the child which the school may hold.  The father may provide a copy of this Order to any such school or educational institution. 

   (b)Advise the father about any medical practitioner or similar professional that the child may consult, and will authorise such practitioner or professional to provide information to the father upon his request and at his expense. 

3. The mother is permitted to relocate the child’s residence to Adelaide in South Australia.

4. The father, Mr Curtis, will spend supervised time with the child as follows:

   (a)       During the three shorter South Australian school term holidays:

   (i)For the first half of each the school holiday periods in 2016 and each alternate year thereafter:

   a.Unless otherwise agreed, for the purposes of Order 4(a)(i) time for the first half of the school holidays will commence at 7.00 pm on the Friday after the last day of the school term, and will finish at 12.00 noon on the middle day of the school holidays, or on the day after the middle day if there are an even number of days in the holiday period.

   (ii)For the second half of each the school holiday periods in 2017 and each alternate year thereafter:

   a.Unless otherwise agreed, for the purposes of Order 4(a)(ii) time for the second half of the school holidays will commence at 12.00 noon on the middle day of the school holidays, or the day after the middle day if there are an even number of days, and will conclude at 4.00 pm on the day before the school term resumes.

   (b)If the Easter weekend falls within the first term school holidays, as provided above the child will spend this period with her father.  If it does not, she will not (unless that parties otherwise agree).

   (c)       During the longer South Australian Christmas school term holiday:

   (i)For the first two weeks of the holiday period from 9 am on the first day to 5 pm on the last day, in 2016 and every second year thereafter; and

   (ii)For two weeks of January commencing in 2018 on the first Saturday in January at 9 am and ending on the third Saturday in January at 5 pm and each alternate year thereafter.

   (d)When the child is spending time with her father it will be supervised by the father’s mother, the father’s father, his siblings, or such other member of his family as may be agreed by the parents or by a professional supervisor agreed between the parties and paid for by the father.  The mother will not unreasonably withhold her agreement in respect of a reputable commercial supervisor. 

   (e)Nothing in these Orders prevents the parents from agreeing to different collection and return times or duration of the time that the child and her father spend together.

5. The mother’s sister, Ms J, may also supervise the father’s time with the child.

6. During periods when the father is spending time with the child he will not bath her or be present when she is having a shower or a bath or permit her to be present when he is showering or bathing.

7. The father will not permit the child to sleep in the same bed with him.

8. The mother be responsible for the payment for the costs of the child’s flights to and Canberra from Adelaide and the father will pay for the return flight in the school holiday periods the child spends with her father in Canberra or with his family on the south coast of NSW or a such other place(s) as the parents may agree.

9. If the child flies unaccompanied by a parent and/or a supervisor from Adelaide, the father will confirm to the mother by text message or by telephone (as may be agreed between the parents) prior to the plane’s departure from Adelaide that he is able to, and will, meet the plane in Canberra with a supervisor. If the father fails to do so the mother is under no obligation to send the child on that occasion.  The mother will do all reasonable things to facilitate receiving the confirmation from the father. The child and/or her father will ring the mother to confirm when the child has landed and is in her father’s and the supervisor’s care.

10. The father be responsible for the costs of his own flights between Canberra and Adelaide for the school holiday periods the child spends time with her father in Adelaide.

11. The child may telephone text or email her father at any reasonable time.  But the father will not solicit any such communication or cause or permit any other person to do so on his behalf.

12. When the child is with her father she may ring her mother at any reasonable time and the father will facilitate such a call.

13. The mother facilitate and enable the child to receive a call via video system or software from the father between 5:30 pm and 6:30 pm every Sunday that the child is not otherwise in the father’s care.  Each party is to obtain, install and maintain broadband internet access which facilitates HD video-streaming internet capability and appropriately matched camera and software at their respective homes.  Video is to be the preferred method for this call but in the event it is unavailable the call is to be facilitated by audio telephone call. 

14. Neither parent will discuss these proceedings or permit any other person to discuss these proceedings, including this judgment, with the child and neither parent will say or permit any other person to say unkind or unpleasant things about the other parent.

15. The Senior Family Consultant in the Family Court in Canberra will arrange for an appropriate Family Consultant to meet with the child as soon as possible after these orders are made to explain the orders to the child and to answer so far as he or she is able to do so any questions the child may have.

16. In accordance with paragraph 168 of my reasons for judgment, the father will cause a copy of this judgment to be given to each person who may or will supervise the time that he spends with the child and will in particular draw to the attention of such persons the contents of paragraph 168.

17. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

18. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

19. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

20. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 162 of 2012

Ms Murphy

Applicant

And

Mr Curtis

Respondent

REASONS FOR JUDGMENT

Foreword

1. The protracted history of the hearing of this matter is set out in my Reasons for Judgment.  The matter has reopened twice to permit further evidence and I am very conscious of the fact that my delay in delivering my judgment has caused distress and pain to both the parties.  I sincerely apologise for my delay. 

2. This has been however, a matter that has troubled me as much as any matter that I have dealt with in the time that I have been on the Bench.  The evidence from each of the parents, the “representations” from N (“the child”), the child the subject of the proceedings, and to some extent the evidence from almost all of the other lay witnesses has been contradictory of other evidence including from time-to-time evidence from the same witness. 

3. The demeanour and affect of both parents has been consistently unusual.  I have reviewed in the course of my Reasons the background to the mother’s situation and the peculiar nature of the way the father behaved in court and father’s evidence particularly in the most recent reopening of the matter. These matters were dealt with in submissions by counsel for the mother but were also the subject of particular comment from me.  The father disclaimed that he was unwell and when I had finally drawn attention to his mannerisms he appeared to bring them under control.  Prior to that time however it would be fair to say that his behaviour was so bizarre as to cast doubt on his evidence. 

4. For her part the child reported a number of incidents.  In some cases the language she used was inappropriate for her age.  This was the subject of comment by the Single Expert Witness, Dr M, and by counsel.  Different constructions were placed on this language.  Perhaps predictably, the father would suggest that this comes from conversations with the child’s mother.  However, he disclaimed (to his credit) that the child’s mother was in fact coaching her.  He contented himself with a comment that in some general way she was influencing the reports that the child made to the police and to other people.  It was common ground that the child is a bright little girl and there was no expert evidence that the words that she used would necessarily have been beyond her ability.  (I am conscious of the fact that Dr M made comments about this matter.)

5. The various reports and disclosures made by the child moreover were made over a long period.  It was suggested by counsel for the father that it was improbable that a child of her present age (nine years of age) would have been able to remember things that happened some years ago.  Again this was the subject of some questions to Dr M who expressed the view that without there being some refreshing of those “memories” her recollection of them may have been quite difficult. 

6. Taking account of those matters one of the remaining and most disturbing factors in this case, from my point of view, is the fact that the child became progressively more explicit in her recitation of what she said her father had done to her.  She was interviewed by the police[1] and the video recordings of some of her interviews were available and viewed in Court.  She appeared to speak in a matter-of-fact way about what happened. 

   [1] S 96ZW material and submissions from both parties they outlined the number of times she was interviewed

7. I am conscious of the fact that counsel for the father in particular was putting to Dr M that on some occasions when details were sought, the child referred the questions back to her mother.  This, it was said, was indicative of the fact that the knowledge was her mother’s - not hers. 

8. The curious part about that however is that the mother gave evidence and I accept this evidence that the only abuse that she had ever witnessed was the incident in the bath where the child, she said, was scratching her father’s testicles while he had an erection. 

9. She also became aware after a discussion with her mother of a previous incident about a year before where her mother had seen the child in the bath when the father had an erection. 

10. The subsequent reports by the child, particularly most recently, set out in far more detail other activities.  In some cases it appears that these were not discussed at all with the mother before the revelation was made to the relevant people.  I include in those occasions her discussion of her father touching her “fanny” in a swirling motion which she demonstrated in the course of the interview.  I also include the fact that she described some of her activities to her friend at her friend’s parents.  There is a third allegation that her father engaged

in oral sex with her.  The provenance of this is not clear.  It was conceded that I can make no findings about that particular allegation.  The importance of these things however, is not so much whether or not each must necessarily be believed. That is not necessarily the point.  If, as I have indicated above, I accept that the mother did not coach, train or put the child up to these particular “disclosures” there is no logical source for the reports other than the child herself. 

1. My reasons for accepting the mother’s assertion in this regard relate in part to the fact that it would have been relatively easy for a person who was coaching a child to have inculcated the stories that the child eventually came out with.  To release information progressively as would have had to have been the case would invite both disbelief and increase the risk that the child would not tell either the story or a consistent story.  With all due respect to the mother, who has a justifiably high opinion of her intelligence and her commitment to the scientific method, I do not think she had either the imagination or the skill to do this.  Moreover, she was in my opinion believable when she said that she had never discussed any of those matters with the child. 

2. That leaves however the very difficult question about where the child got this information if in fact the allegations she makes were not correct.  No explanation was put forward for this.  This has increased the complexity of the determinations that I need to make. 

Introduction

Applications of the parties

1. The mother sought orders as set out in her amended Minutes of Orders attached as annexure A to her written submissions filed on 6 March 2013, after the final hearing had concluded (see Appendix A).

2. The mother filed amended Minutes of Orders Sought on 4 November 2013 (see Appendix B).

3. In support of her Application for parenting orders the mother relied upon her affidavit filed 19 November 2012, the affidavits of the maternal grandmother filed 19 November 2012 and 28 March 2012 and the affidavit of Ms G, psychologist. The mother relied upon some affidavits in support of an application for property orders, however the property matter was not heard before me and is currently before a Registrar of this Court for resolution.

4. When the matter was most recently reopened the mother relied upon her affidavits filed 29 October 2015 and 7 May 2016.  Since the matter was heard in 2013 she also filed two Applications in a Case, one on 7 May 2015 and the second 29 October 2015.[2]

   [2] The Application in a Case dated 7 May 2015 was to reopen parenting matters and to discharge a previously made order.  The Application in a Case filed on 29 October 2015 was her request to relocate and to suspend all of the child’s time with the father

5. The father also relied upon an amended Minute of Orders Sought which was filed after the hearing had concluded, on 9 April 2013 (see Appendix C).

6. The father filed amended Minutes of Orders Sought on 20 November 2013 (see Appendix D).

7. In support of his Application, the father relied upon his affidavits filed 23 November 2012, 4 May 2012 (one sworn on 30 February 2012 and another sworn 3 May 2012), 5 March 2012, and 10 February 2012.  The father also relied upon affidavits from the paternal grandfather, the paternal grandmother and his sister-in-law.

8. When the matter was reopened in 2015 the father relied upon his affidavit filed 9 December 2015 and an affidavit sworn by his mother, filed on 10 December 2015.

9. In essence the parties both seek that the child lives principally with her mother, the father seeks shared parental responsibility, the mother sole parental responsibility. 

10. The mother now seeks that she and the child will live in South Australia and that the father should have no time with the child.  The father seeks that he should have unsupervised time with the child and even if the mother were to be living in South Australia that he have the opportunity of taking the child away from there in essence to spend time with his family. 

11. In the final (final) submissions in this matter I explored with Ms Simpson, on behalf of the father, the sort of arrangement that might apply if the mother were living in South Australia and I considered it was appropriate that there should be supervision of the time that the father spent with the child.  That proposal finished up being that there should be time in each of the term school holidays for one week and two weeks over the long summer holidays.  She sought that if there were to be supervision that the members of the Curtis family would be permitted to act in that role and that the mother’s sister would be an alternate.  She expressed the view (somewhat optimistically) that a third option might be “as agreed between the parties”.[3]

    [3] P 331 T 17 December 2015

12. The mother seemed to think that her mother might be the only relevant supervisor (the grandmother lives in Adelaide).  She is opposed to her sister being the supervisor.  The sister was in fact a witness for the father.  As I indicated above, no part of this matter is easy to resolve. 

Background

1. The parties commenced a relationship in 1999 and moved in together at the end of that year.  They married in 2001 and separated in about May/June 2011.[4] The child N is the only child of the relationship (born in 2006) and at the time of the initial hearing was aged about six and a half years old.[5]

   [4] Mother’s affidavit, [2] and [3]; Father’s affidavit, filed 10 February 2012, [9] to [11]. The father disputes that this was the date of final separation.

   [5] Mother’s affidavit, [4].

2. The mother unfortunately suffered a series of illnesses during the marriage. Within three months of the marriage, the mother was diagnosed with viral meningitis.  As a result of viral meningitis, the mother suffered from slurred speech, walking problems, being unable to read, impaired writing, impaired balance, impaired condition and impaired vision.  The mother engaged in speech therapy and therapy via a neuropsychologist between 2001 and 2009 to assist with the effects of viral meningitis.[6]

   [6] Mother’s affidavit, [5] to [7]; Father’s affidavit, filed 10 February 2012, [13].

3. In August 2001, the mother was diagnosed with breast cancer and underwent a lumpectomy followed by chemotherapy, radiotherapy and hormone therapy.[7]

   [7] Mother’s affidavit, [8].

4. The mother is in remission from cancer and is not currently undergoing any treatment or therapy for that.  She does, however, suffer from ataxia (unstable balance and slurred speech) which she has been advised will never improve.[8]

   [8] Mother’s affidavit, [10].

1. The father deposed that the mother’s illnesses resulted in some difficult times for their family.  The mother suffered symptoms of headaches and nausea and would spend whole weekends in bed.  She would yell at the father “I wish you were dead”, “I hate you”, “I don’t know why I ever married you.”[9]

   [9] Father’s affidavit, filed 10 February 2012, [54].

2. After the child’s birth, the mother stayed home for six or seven months to care for the child and, after that period, the father took leave and remained at home on a full-time basis to care for the child.  The mother says she was not confident in bathing the child because her illness had left her with impaired balance, and she was afraid that she may drop the child if she bathed her.[10]  As a result, it was the father who was primarily responsible for bathing the child.[11]

   [10] Mother’s affidavit, [16] and [20]; Father’s affidavit, filed 10 February 2012, [43] and [44].

   [11] Father’s affidavit, filed 10 February 2012, [20].

3. In about 2007, both parents returned to work and the child was placed into day-care.[12]  Initially the child was enrolled three days per week (as both parents were able to take one day a week off work to care for the child).[13]  In 2009 or 2011, the child’s time at day-care increased to four days a week[14] and in 2012 she commenced kindergarten.[15]

   [12] Mother’s affidavit, [14] to [19].

   [13] Mother’s affidavit, [21]; Father’s affidavit, filed 10 February 2012, [45].

   [14] Mother’s affidavit, [22]; Father’s affidavit, filed 10 February 2012, [46].

   [15] Mother’s affidavit, [24].

4. The mother asserts the father has used illegal substances in the past and has concerns about his present use of illegal substances.  The prescription medicine and illegal substances may have been used by the father to assist in relieving his anxiety.

5. On 24 May 2011, the mother says she observed the father and the child in the bath and the father had an erection while the child scratched his testicles.[16]  Immediately after this event, the mother moved from the matrimonial bedroom to the spare room.[17]  The mother would say that from about this time, she considered the parties’ relationship to be over, on a final basis.  The father believed that the parties commenced a trial separation in about May/June 2011 and it was not until January 2012, when the mother unilaterally ceased all time between him and the child, that the parties finally separated.[18]

   [16] Mother’s affidavit, [42] and [43].

   [17] Mother’s affidavit, [46].

   [18] Father’s affidavit, filed 10 February 2012, [11].

6. In August 2011, the mother found appropriate accommodation and moved out of the family home with the child.[19]  Despite the incident which the mother observed in May 2011, arrangements were put in place in August 2011 for the father to spend time with the child for five nights per fortnight.[20]  The mother states that during this arrangement, she noticed “significant regressive behaviour” in the child between August and December 2011, including crying, acting out and increased bed-wetting.[21]  The father agrees that the arrangement was roughly that he spent time with the child for five nights a fortnight.  On occasions, it would only be three nights and on others, six nights.[22]

   [19] Mother’s affidavit, [47].

   [20] Mother’s affidavit, [50].

   [21] Mother’s affidavit, [51].

   [22] Father’s affidavit, filed 10 February 2012, [12].

7. In September 2011, after separation, the father started seeing a counsellor.[23]

   [23] Mother’s affidavit, [40].

8. Over Christmas 2011, the mother and the child spent time with the father and the paternal family at the paternal grandparents’ home on the South Coast of NSW.

9. On 27 December 2011, the mother noticed some items missing from her rental property.  Those items were earrings, two DVDs of the child and a bottle of perfume.  She also noticed that photos had been deleted from her digital camera. The mother believes the only person who could have accessed the property was the father, because he knew she kept a spare set of house keys in her drawer at work.  Both the mother and the father work in the same Department, and both have security clearance to access the building in which the mother worked.  Furthermore, the mother said there were no signs of break and enter to her property, and when she returned to work, the spare keys had been placed differently into the drawer.  The mother changed the locks on her rental property on 2 January 2012.[24]

   [24] Mother’s affidavit, [55] to [57].

10. The father denies that he had anything to do with the items that went missing in the mother’s home.  He did not know she kept spare keys at her workplace, nor did he have his own keys to her house.  The father says he has only attended on the mother’s home when she was not present to fix things in the outside grounds at the mother’s specific request.  He has always informed the mother before attending to fix those things.[25]

    [25] Father’s affidavit, filed 23 November 2012, [104].

11. The mother became so concerned about the combination of events – the May 2011 bath incident and the child’s behaviour – that, on 2 January 2012, she suspended all time between the father and the child.[26]

    [26] Mother’s affidavit, [53] and [54].

12. On 3 January 2012, the mother made an appointment with Child Protection Services and the Australian Federal Police (“AFP”).  As the mother and the child left an interview with the AFP, the child said “I put my finger in daddy’s vagina.”[27]

    [27] Mother’s affidavit, [58].

13. On 4 January 2012, the mother observed the child had stopped bed-wetting.[28]

    [28] Mother’s affidavit, [59].

14. On 10 January 2012, the mother telephoned the AFP to inform them of the child’s comment that she had put her finger in daddy’s vagina.[29]

    [29] Mother’s affidavit, [60].

15. On 11 or 12 January, the mother organised a visit between the father and the child at Questacon, with the mother supervising.[30]  Also on 11 January 2012, the father was contacted by the AFP about the allegations and, on the advice of a criminal solicitor, declined to be interviewed.[31]

    [30] Mother’s affidavit, [61].

    [31] Father’s affidavit, filed 10 February 2012, [19].

16. The mother took the child to see a child psychologist, Ms D, though it is unclear when this occurred.[32]

    [32] Mother’s affidavit, [66].

17. On 24 January 2012, the mother and the child were at home, and the child cut out and glued together a stop sign which the child said was for her father “because daddy is a poo poo”.  The child then proceeded to stick the stop sign on the front door of the mother’s rental property.[33]

    [33] Mother’s affidavit, [70].

18. On 2 February 2012, the parties attended a mediation session in an attempt to resolve ongoing future arrangements for the child.[34]

    [34] Mother’s affidavit, [77].

19. On 3 February 2012, the mother commenced proceedings in the Federal Magistrates Court (as it then was).

20. Interim orders were made by Federal Magistrate Neville (as his Honour then was) on 13 February 2012 for the child to continue to have regular time with the Respondent father with the parties to work out the arrangements.  It was noted in the orders that the father consented to an order that he not consume any illicit substances.

21. Supervised time between the father and the child commenced on 17 March 2012.  The mother observed a “profound change in [the child’s] toileting habits since this occurred.”[35]

    [35] Mother’s affidavit, [133].

22. The mother told the child that she would be visiting with her father on 15 March 2012.  On the nights of both 15 and 16 March, the child wet her bed for the first time since January 2012.  The child also wet the bed on the night of 17 March 2012 and defecated in her underwear that afternoon on returning from time with the father.[36]  The child has defecated in places other than the toilet in the past.  The father notes this happened from before August 2010 to June or July 2011.  The child would sometimes defecate behind the lounge or in her bedroom.  The mother says that the smell and stains in the child’s bedroom became so awful that the carpet was professionally cleaned to remove the stains.  The father states the child also had an issue with wetting the bed and this could occur up to four nights each week.  There were also times when the child would wet her pants during the day and hide her wet underwear from the parents.[37]  The maternal grandmother has also observed the child to defecate in the maternal grandmother’s home at the beginning of 2011.[38]

    [36] Mother’s affidavit, [134] and [135].

    [37] Mother’s affidavit, [52]; Father’s affidavit, filed 10 February 2012, [35].

    [38] Maternal grandmother’s affidavit, sworn 19 November 2011, [8].

23. The child had a second supervised visit with her father on 22 March 2012.  She defecated in her underwear during the visit, but did not tell the father or the supervisor.[39]

    [39] Mother’s affidavit, [141].

24. The child wet the bed again on 23 March 2012 and was due to spend time with the father on 24 March 2012.  She insisted on sleeping with the mother each night.[40]

    [40] Mother’s affidavit, [142].

25. The matter was transferred to the Family Court on 3 April 2012.

26. The father did not spend time with the child on 12 or 19 April 2012.[41]  The father also did not spend time with the child on 28 April, however, this appears to be due to a communication confusion between the parties.[42]

    [41] Mother’s affidavit, [152].

    [42] Mother’s affidavit, [154] to [160].

27. On 7 May 2012, interim orders were made for the child to spend time with the father each Saturday from 2 pm to 5 pm and each Thursday from 4 pm to 6:30 pm, supervised by a third party agreed between the parties.

28. The interim orders of 7 May 2012 were discharged on 24 August 2012 and other interim orders were made.  Pursuant to those orders, the child would spend time with the father from 9 am to 2 pm each Sunday, supervised by either of the paternal grandparents, or such other person as agreed between the parents.

29. It was noted in orders dated 9 October 2012 that there had been some difficulty with the time that the child was to spend with her father pursuant to orders of 24 August 2012.  The mother raised an issue about the supervisors, being the paternal grandparents, giving an undertaking about their understanding of and willingness to comply with duties as a supervisor.  It was also noted in the orders that the time the child would spend with the father would proceed on the weekend of 13 October 2012 and on every weekend leading up to the hearing.

30. The matter came before me for hearing on 30 November 2012, 3 and 4 December 2012 and was adjourned part-heard.

31. As a result, interim parenting orders were made on 13 December 2012 so that the child could spend time with the father pending final hearing and judgment, in addition to the time she would spend with the father pursuant to orders of 24 August 2012.  Pursuant orders of 13 December 2012, the child would spend time with the father from 9 am on 2 January until 5 pm on 5 January 2013.  During that time, one of six people who had provided an undertaking to the Court was to be present at all times when the father was with the child and ensure the father did not bath, bathe or shower with the child, did not change or dress the child unless a female supervisor is present, did not discuss any aspect of the current proceedings within the presence or hearing of the child, did not consume alcohol or illicit substances (including poppy tea), and that the child would not sleep in a room with the father.

32. The further hearing of this matter continued on 31 January 2013, 4 and 7 February 2013.  Written submissions were received from the mother on 6 March 2013 and from the father on 9 April 2013.  The mother provided written submissions in reply on 16 April 2013.

33. As my drafting of this judgment drew to conclusion I drew that to the parties’ attention and asked if they wished to reopen to provide any additional evidence.  The parties accepted this invitation and the further hearing of the matter occurred on 14-17 December 2015.  Submissions dated 16 December 2015 were received from mother and submissions from the father were received on 23 December 2015. 

Relevant law

1. The Family Law Act 1975 (Cth) ("the Act") was amended in 2011 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ("the amending Act"). Those amendments affect the provisions that apply in parenting matters. The amending Act stipulates that certain amendments, which are relevant in this matter, "apply in relation to proceedings instituted on or after commencement."[43]  The amendments relevant to this matter commenced on 7 June 2012.[44]  These proceedings were instituted in February 2012, therefore the relevant amendments do not apply to this matter. When I make reference to the Act, I refer to the provisions as they were before the amendments came into effect.

   [43] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), Schedule 1, Part 2, s 45.

   [44] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), s 2.

2. Under the Act, I am obliged, when making a parenting order, to 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.[45]  In this regard, "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."[46] Equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent.

   [45] Family Law Act 1975 (Cth), s 61DA(1).

   [46] Family Law Act 1975 (Cth), s 61B.

3. That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or another child who is a member of the parent's family, or engaged in family violence.[47]  Family violence means "conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety."[48]

   [47] Family Law Act 1975 (Cth), s 61DA(2).

   [48] Family Law Act 1975 (Cth), s 4.

4. The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child's best interests.[49]

   [49] Family Law Act 1975 (Cth), s 61DA(4).

5. In this matter in my opinion as a result of the matters which follow I am satisfied that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her.  Additionally, I conclude that at least at present the possibility of her parents being able to consult and /or agree about many matters relating to her welfare is limited. To force consultation would in my opinion invite conflict.

6. In determining what is in the child's best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into "primary considerations" and "additional considerations".

7. If the presumption of equal shared parental responsibility applies, I am obliged then to consider whether the child should spend equal time with each of the parents or substantial and significant time as defined in the Act. In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to whether it is reasonably practicable for the child to spend such time with each parent.[50]

   [50] Family Law Act 1975 (Cth), s 65DAA(1) and (2).

8. This matter concerns allegations of sexual abuse against the father.  Because these are civil proceedings, any findings I make in relation to the allegations must be on the balance of probabilities.[51] In Briginshaw v Briginshaw[52], Dixon J (as his Honour then was) said:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality.

   [emphasis added]

   [51] Evidence Act 1995 (Cth), s 140(1).

   [52] (1938) 60 CLR 337, per Dixon J.

9. To find, on the balance of probabilities, that the father did sexually abuse the child, I must feel an “actual persuasion” that sexual abuse occurred.

10. If I find that sexual abuse did occur, the question then arises as to how to balance the need to protect the child from harm (as required by s 60CC(2)(b)) against any benefit to the child from having a meaningful relationship with both parents (in s 60CC(2)(a)). The authorities state that the relevant test is whether the child would be exposed to “unacceptable risk”:[53]

    … the courts have endeavoured, in their efforts to protect the child’s paramount interests, 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. To achieve a proper balance, the test is best expressed by saying 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.

    [53] M v M (1988) 16 CLR 69, 78.

11. In this matter I was assisted by very comprehensive submissions from counsel which reviewed the evidence at great length.  However, the most difficult issue is perhaps what is meant by an unacceptable risk. 

12. It is in my opinion not a third standard of proof which falls somewhere between beyond reasonable doubt or proof on the balance of probabilities and an inability to determine whether something has happened or not. 

13. The consideration of what constituted an unacceptable risk formed a substantial part of the dialogue I had with counsel during the course of the final (final) submissions. 

14. It is reasonable to suggest that if a court is satisfied that something has happened in the past it may infer that it is possible, and depending upon the circumstances, even probable, that may recur in the future.  It is not what is in the past which is the risk.  It is what is in the future.  It is therefore possible that if something happened in the past (in this case child abuse) that notwithstanding that finding, it is unlikely that it would occur again.  This may be because the child is older.  It may be because in some cases (though not in this one), the abusive parent has undergone such therapy as would render the possibility of a re-offence to be either non-existent or so minimal as to be in some way “acceptable”. 

15. If, however, a court is unable to determine whether or not something has happened in the past, it is very difficult to determine whether there is a risk that that conduct will occur in the future.  If a court could be satisfied that the alleged conduct did not occur in the past, then it may in appropriate circumstances be able to draw an inference that the conduct which did not happen in the past is (acceptably) not a risk in the future.  This would be a conclusion reached more readily if the court were to be satisfied that the allegations made were malicious or there was some agreement that they had been made up. 

16. The enquiry the Court is directed to undertake, as the High Court reminded us in M v M, is not, is the alleged perpetrator guilty of a criminal offence.  That is a matter for criminal courts.  The question is in the best interests of the child what orders can be made which will ensure that that child’s safety is preserved. 

17. If a court cannot rule out the fact that abuse happened in the past and if a court cannot find affirmatively that the abuse did happen in the past it cannot, according to their Honours in the High Court at least, rely upon such determinations as “lingering doubt”.  How then can a court determine whether there is an unacceptable risk that something might happen in the future if it cannot determine whether or not it has happened in the past? 

1. At one level, this might be resolved simply by removing any possibility of the alleged perpetrator having any contact with the child at all.  That at one extreme would ensure that there was no risk to the child, acceptable or otherwise.  

2. From that extreme point there are graduated degrees of supervision or no supervision which may or may not expose a child to a greater or less risk.  If for example, the child's time with the parent is supervised by a professional supervisor the risk of anything physical occurring must necessarily be minimal.  If, as would in most cases be an unreasonable and unlikely scenario, the child’s other parent were to be the supervisor, again it seems unlikely that there could be any relevant risk.  If the alleged perpetrator’s new partner is the supervisor it might be thought that that person would perhaps not believe that anything that had happened or could happen and therefore not be as vigilant as he or she might be.  If the alleged perpetrator’s parents (who may clearly believe in their child’s innocence) were to be the supervisors a similar problem may arise.  Ultimately, if the alleged perpetrator has time with the child without any supervision this would ordinarily expose the child to the possibility of abuse if indeed abuse is likely to happen.  In the last mentioned case of course, the argument is circular. 

3. The sliding scale of risk and protection from risk will vary with the circumstances of the parties and particularly with the age of the child.  That which might be carried out against a child of three or four is unlikely to be easily carried out in relation to a child of 15 or 16.  In this case the child (it seems to be agreed) did not regard anything that she first disclosed as having happened to her as being anything wrong.  It was asserted on behalf of the father that her subsequent comments to the police were indicative of the intervention of her mother who had persuaded her that what had happened to her was wrong.  It is equally probable in my opinion that if something did happen to her, she did not regard it at the time as something that was wrong. 

4. I will return to these matters in due course in a consideration of the evidence but before I leave this general comment I wish to point out that in my opinion there is no risk that a child might be sexually assaulted which can be acceptable.  If there is a genuine possibility that the abuse might occur then any orders that this Court might make must in the best interests of the child ensure that that possibility cannot come about. 

5. Unfortunately the language is not adequate to deal with the complexity of the decision.  Unfortunately further, in this matter where the evidence has over a long time become now so confused, it is difficult if not impossible to form unimpeachable conclusions about the evidence of one or more of the parties.  Each counsel has drawn careful attention in their submissions, both oral and written, to inconsistencies in the evidence of the other party.  This has been of some assistance to me but I normally take the view - and I certainly take the view in this matter - that the fact that a party’s evidence is inconsistent or possibly even wrong in relation to one aspect of the matter or even some aspects of the matter does not necessarily mean that that person’s evidence must be disbelieved for all purposes. 

6. In this matter I could not make a finding that wherever the evidence of one parent conflicted with the evidence of the other that I would prefer that parent in all cases.  There are some matters however, upon which I have been able to reach a conclusion.  One of these I have mentioned above.  In reaching conclusions particularly about the mother’s evidence which was discursive, combative and might in some cases have been termed evasive I am satisfied that on some matters she was unquestionably telling the truth.  She did not help her credibility in the events immediately following her reported observation of the father in the bath with the child.  As was pointed out by counsel for the father in her submissions,[54]

   a.Mother willingly facilitates a shared arrangement of care for the child (for about 7 months) after the alleged bath incident and after the mother moves to separate accommodation (not explained in her first affidavit (filed 3/2/12);

   b.The mother’s conflicting explanations about why she failed to act on what she claimed she saw;

   c.Mother’s assertions about suppression of memory;

   d.Significant conflict and inconsistency between the evidence of the mother and Mrs [F] on certain matters;

   e.The difficulties with Mrs [F’s] evidence about the allegation in light of the evidence of her daughter [Ms J] (as set out in Transcript 30/1/14 pages 57-58).

   [54] P 2, 21 December 2015

7. Of these criticisms the one that originally bore most heavily on my determinations was the apparent delay in the mother’s reporting or doing anything about what must have been a seriously shocking revelation to her.  Unlike many allegations of abuse, she asserted the abuse was something which she personally saw.  Nevertheless, she did nothing about the incident, at least in terms of reporting it to the police, for some time and then only apparently after her memory was stimulated in some obscure way by what she thought was the father’s breaking into her home. 

8. Equally improbable, was the fact that the mother’s mother having observed a relatively similar incident a year before had done nothing to disclose it to the child’s mother or again to report it to the authorities.  Each has explanations for these delays but they are not satisfactory explanations. 

9. For his part the father’s evidence was from time-to-time bizarre.  He himself canvassed the possibility that he might have been sexually aroused by his own daughter.  His demeanour particularly on the last occasion (when the matter was before me) would have excited the conclusion that he was uncomfortable to the point of possibly being untruthful.  He denied that he was being untruthful.  He said he was uncomfortable and I have no doubt that he was, but it added to the complex matrix, (as the trial was referred to by counsel for the father).  I will return to these issues later.

Best interests of the child

Primary considerations

1. In considering whether there is a benefit to the child in having a meaningful relationship with the father, I must consider the allegations that the father sexually abused the child.

Section 60CC(2)(b) – the need to protect the child from harm as a result of being exposed or subjected to child abuse, neglect or family violence

1. Because of the sexual abuse allegations raised by the mother, there is a need to consider whether there is a need to protect the child from harm as a result of being exposed to sexual abuse.  The sexual abuse allegations are detailed below.

2. At Christmas 2010, the maternal grandmother attempted to take a picture of the child in the bath.  The maternal grandmother says that she had “taken to creeping about the house or the yard” in order to take candid photos of the child because the child was a “camera shy” child.[55]  On this occasion in Christmas 2010, the maternal grandmother approached the bathroom door which was three to four inches ajar.  She could see the father at the right hand end of the bath and could see that he had an erection.  She could also hear the child was in the bath with the father.  The maternal grandmother was embarrassed and shocked and immediately backed away from the door without taking any photographs.  She did not speak of this incident with the mother until January 2012 when the mother told her about the incident in May 2011.[56]

   [55] Maternal grandmother’s affidavit, sworn 19 November 2011, [25] and [26].

   [56] Maternal grandmother’s affidavit, sworn 19 November 2011, [27] to [30].

3. The father denies the Christmas 2010 incident occurred.

4. On 24 May 2011, the mother said she observed the child and the father in the bath together:[57]

   42.      On 24 May 2011, [the child] and [the father] were sharing a bath together. I walked up the hallway, past the open bathroom door. I observed [the father] and [the child] in the bath together.  This was not an unusual activity and [the child] has enjoyed bath time with me also.

   43.      On this particular occasion I saw [the child] sitting cross legged facing [the father].  He was in a semi-reclined position leaning against the wall of the bath.  [The child] was sitting in front of him and had her hand extended into his groin region scratching at his testicles. [The father] had a full erection.

   44.      When [the child] saw me standing at the door she stopped and climbed out of the bath. I looked at [the father] and we made eye contact.  Neither of us said anything. I dried off [the child] and removed her from the bathroom.

   …

   47.      In June 2011 following the incident with [the child] in the bath she complained of an itchy vagina.  She said to me, “Mummy I have an itchy fanny”.

   [57] Mother’s affidavit, [42] to [47].

5. The father denies that an incident of this nature ever occurred.[58]  He states that the last time he had a bath with the child was some time at the end of 2010.[59]  The reason the father stopped bathing with the child was that during 2010, the child had started being more curious about the human body and had started touching other’s breasts and touching the father’s penis while in the bath.  On one occasion in late 2010, while in the bath, the child reached out and touched the father’s penis.  The father told the child “Don’t touch me there” to which the child replied “Why not?”.  The father did not reply to this question and promptly got out of the bath.  The father says the mother could easily have seen this incident because the bathroom door was always ajar so he could call the mother if either he or the child needed anything while in the bath.  Approximately half an hour after the father had taken the child out of the bath, he told the mother that he did not think he should share a bath with the child anymore because “she’s getting too curious and starting to touch things.” He then, jokingly, said “Wouldn’t it be embarrassing if your daughter gave you a hard-on.”  The father’s evidence is that the mother said “Yeah you’re probably right.”  The father said he recalled, later, the mother said to the child “Only mummy is allowed to touch Daddy’s penis.”[60]

   [58] Father’s affidavit, filed 10 February 2012, [7].

   [59] Father’s affidavit, filed 10 February 2012, [21].

   [60] Father’s affidavit, filed 10 February 2012, [22] to [24].

6. Both parents say that the child had issues with bed-wetting and defecating in places other than the toilet.  The father states that he had heard the child complain about an “itchy fanny” on a number of occasions throughout the relationship. He had always associated this with the child’s toilet issues.[61]

   [61] Father’s affidavit, filed 10 February 2012, [39].

7. The father concedes the incident he talks about in 2010 may have occurred anywhere between September 2010 and December 2010.  He is adamant that it did not occur in May 2011.  There was an incident in Easter 2011 when the father washed the child in the shower because she had soiled her pants.  The mother was present in the house when this occurred.[62]

   [62] Father’s affidavit, filed 10 February 2012, [28].

8. The father states that the only significant occurrence on 24 May 2011 was his giving to the mother a letter regarding the future of their relationship.[63]

   [63] Father’s affidavit, filed 10 February 2012, [29] to [31] and annexure A.

9. Over Christmas 2011, after separation, the mother brought the child to the paternal grandparents’ house on the South Coast of New South Wales to spend time with the father and the extended paternal family.[64]  This was an appropriate thing for the mother to do.  The mother also stayed at the paternal grandparents’ home.  The mother left on Boxing Day 2011 and the child stayed on with the father and his family.  Later, the mother discovered the child sometimes slept in the same bed as the father during this holiday, and was unhappy about it.

   [64] Father’s affidavit, filed 23 November 2012, [95] to [98]; Paternal grandfather’s affidavit, [11] and [12]; Paternal grandmother’s affidavit, [9] to [11].

10. The father explained that the mother and the child had shared a room at the paternal grandparents’ home.  There were two beds in that room.  After the mother left, the child was reluctant to sleep alone, so the father took the mother’s bed in that room.  Sometimes, the father would read with the child before she went to sleep and would sometimes fall asleep on the child’s bed.  When he woke up, he would move to the other bed.  However, the child would sometimes wake during the evening and call for the father to return to sleep with her.[65]

    [65] Father’s affidavit, filed 23 November 2012, [95] to [98].

11. On 3 January 2012, after an interview with the AFP, the child said to the mother, “I put my finger in daddy’s vagina”.  The mother did not inform the AFP of this comment until 10 January 2012. And on 11 or 12 January 2012, the mother arranged for the father to have a supervised visit with the child.[66]  I remark at this stage that there were a number of incongruities in the mother’s evidence.  By far the most disturbing was the delay from 24 May 2011 until early in January 2012 for the mother to report the incident in the bath which she said had so significantly disturbed her.  In addition, as on the evidence of the mother the child had said as she left the interview with the police on 3 January 2012 that “I put my finger in Daddy’s vagina” the mother waited nearly a week before informing the police about it. 

    [66] Mother’s affidavit, [58] to [61].

12. The mother reported to the single expert that, on 2 June 2012, the child said the father “quite often wants to lick me”.[67]

    [67] Exhibit J1, [25].

13. The mother raised another “allegation” during her interview with the Family Consultant:[68]

    The mother does not view the father as being able to prioritise [the child’s] needs over his own. She says that he is “self-centred” and gave a number of examples of this … That [the child] returned to the mother’s care in November 2011, after the mother had been interstate for work, unwashed and reporting that instead of sleeping at her father’s home she had slept at the “neighbours”.  Later the mother suggested that the smell may have been due to the father getting “rather excited and ejaculating on her” …

    [68] Exhibit J2, 3.

14. Again, the mother’s basis for thinking the father ejaculated on the child is unclear.

15. One of the primary arguments raised by counsel for the father was that the allegations made by the mother about the incident which occurred on 24 May 2011 did not alarm the mother because the mother did not report the incident until early January 2012.  The mother, in response to this, obtained a report from psychologist, Ms G, about her delay in reporting the father’s alleged sexual abuse of the child to the appropriate bodies. Ms G’s report said:[69]

    Given [the mother’s] tendency to blame herself for the way she was treated in her marriage (and outside it), together with her habitual suppression of negative feelings, it is possible to hypothesise that the shock she experienced when she first observed what her husband was doing in the bath with their daughter was overwhelming and thus she could have immediately suppressed her feelings about it and even pushed the memory of it out of her consciousness for some time. As she reported, she believed at first that he was threatening her with his behaviour and felt that somehow her behaviour was the cause of it, ie her withdrawal sexually.

    [69] Ms G’s affidavit, annexure B, 12.

16. The mother told the single expert that she “blocked” the 24 May 2011 incident “out of [her] head”.[70]  The single expert asked the mother about her recollection of the bath incident in May 2011, and records the following:[71]

    6.        The mother was asked about her recollection of the incident of sexual abuse allegedly perpetuated by the father in the bath. She had recalled the event just after New Year’s Eve. [The child] had spent Christmas with the paternal extended family [on the South Coast]. On her return to Canberra, the mother “just did”. It was at this time that she had noticed that items were missing. She felt that she had to take some action regarding these circumstances. She “put two and two together” and realised that [the father] had been abusing [the child]. She had been trying to have a cordial separation prior to her discovery that [the father] had been in her home. She realised that he had been “very nosy” and had gone through her possessions. It was then that she notified the Australian Federal Police about the bath incident.

    7.        The mother repeatedly referred to her spreadsheets as she identified these issues. …

    8.        The mother was unable to explain how or why the memory came back into her mind. She became tearful, sobbed and blew her nose as she described her concerns for her daughter. “ … I took so long to remember. I was trying to work it out when I was talking to my counsellor. I can’t think of any particular reason. A combination of factors – all of my family and [the father’s] family were friends with [the father], not with me. Because I’ve criticised them. [The father’s] been very nice and flattered them. I suspect [the father] slept with my sister.” …

    9.        When asked how she knew that the father had slept with her sister, the mother replied: “Because there was something that was almost evidence at the time, but I can’t remember what it was now.” … when they had visited Adelaide together, the father had stayed on for an additional night. He had met with her sister instead of seeing friends. …

    10.      … She then commented that she realised that the father had changed his story about catching up with her sister in Adelaide. It was then that she had realised that his account wasn’t true.

    11.      The mother acknowledged that her memory had been affected by her previous experience of chemotherapy and viral meningitis.

    …

    77.      The mother highlighted that [the child’s] behaviour of weeing and pooing on the floor had been most unusual. It had, however, only been after New Year’s Eve that she had realised and remembered that it had been due to the behaviour of the father. She commented: “It’s a very odd story, isn’t it?” She then started crying hysterically: “I blocked it out of my head! I can’t stand the thought of [the child] going to live with [the father]!”

    [70] Exhibit J1, [3].

    [71] Exhibit J1.

17. The single expert expressed the following opinion in relation to the mother’s allegations of sexual abuse:[72]

    106.    The mother’s allegations and expressed concerns were broadly consistent with her affidavit material, but presented these concerns in a disorganised manner. Her affect (emotional expressiveness) was labile. Her account was at times verging on the bizarre. Her acknowledged behaviour, such as camping out for weeks at the start of the 2012 school year at [the child’s] school was regarded as both unusual and inappropriate. … Although she denied problems related to her mood and behaviour, this was alleged by the father and supported by [the child’s] statements regarding her experience of her mother’s anger and volatile mood and behaviour.

    107.    The mother was identified to have vulnerabilities dating back to her family of origin. This was suggestive of a pre-morbid Personality Disorder. She readily described unresolved issues in her family of origin regarding her parents’ conflictual relationship which culminated in her alienation from her father. This was likely to have impacted upon her ability to sustain relationships over the years.

    108.    These factors raised questions regarding the veracity of the mother’s allegations regarding the family circumstances, including the behaviour and statements of both the father and [the child]. …

    …

    110.    … [The father] readily acknowledged experimentation with a wide range of substances, most notably his chronic use of self-concocted narcotic analgesia prepared from poppies. This unusual behaviour was consistent with his unusual personality, which the mother had understandably been concerned about over the years. This, however, did not indicate that he had acted in the manner asserted by the mother or that [the child] was necessarily at risk in his care.

    …

    115.    [The child’s] vulnerabilities as expressed in her enuresis and encopresis were likely to be a product of a genetic vulnerability to enuresis and stressful home environment. Whilst it is possible that these symptoms are an indicator of sexual abuse, this could also be explained by her exposure to the domestic circumstances identified by the father. Given that there was no disclosure of sexual abuse or sexualised behaviour observed by independent parties, including the assessor, I did not find sufficient features to confirm the mother’s fears that [the child] had been sexually abused by her father.

    [72] Exhibit J1.

1. The enuresis and encopresis referred to be the single expert have been described above.  The “domestic circumstances” identified by the father were the difference in parenting styles.  The father felt the child’s toileting problems could be a consequence of this:[73]

   [The father] was frustrated that the mother refused to allow the use of nappies and pull-ups. He had been in favour of a reward system, whilst the mother had used a punitive approach. To his mind, this had provoked an avoidant response in [the child]. He noted that the mother had been a late bedwetter herself. This was identified as being a significant factor contributing to [the child’s] vulnerability to enuresis.

   [original emphasis]

   [73] Exhibit J1, [100].

2. The Family Consultant expressed a similar assessment of the cause of the child’s toileting issues:[74]

   [The child’s] difficulties around toileting may be a [direct] physical response to the emotional and psychological struggles for her resulting from two dissonant parents with different narratives about what is in their daughter’s interests and her own experience of her relationships with each of them.

   [74] Exhibit J2, 8.

3. The second incident (observed by the mother) appeared initially to provoke some sort of reaction which was that the mother moved out of the master bedroom however, it was months before the mother actually reported it to anyone and then she suggests that her recollection of the incident was triggered by the fact that she believed that the father had entered her house without her consent.  The evidence from the expert retained by her of how she might have blocked out the incident failed to follow any intellectual or professional rigour and at best could be said to provide a possible hypothesis rather than a probable one. 

4. The report of the mother to the single expert about this delay bordered on the bizarre.  Her described demeanour and affect were consistent with my observation of the mother’s evidence about these matters in the witness box. 

5. The allegedly corroborative factors of the child’s encopresis and enuresis in my opinion do not provide (from the expert evidence from the Family Consultant and from the single expert) any necessary corroboration of abuse. 

6. I could not in the face of all of these factors have any sense of satisfaction that the incidents so described had occurred, as described.  I am at a loss to understand why, if the incidents were concocted, the mother and the grandmother made them up. 

7. Some explanation for the mother’s behaviour may be found in her complex and difficult medical history and I concede readily that the mother’s appearance in the witness box did not leave me with the impression that she was engaging in deliberate falsehood.  I did not have the same opportunity to observe the maternal grandmother but she also seemed to be a person of veracity.

8. On the basis of that evidence alone, I could not have found that the father had sexually abused the child - because of those uncertainties.  However, that was not the end of the evidence as I have commented above.  I will not repeat what I said above except to repeat that the recent evidence while not in itself entirely satisfactory creates concerns not about the incidents in the bath but more broadly.  The detailed nature of the allegations from the child, my finding that she was not coached by the mother in relation to them and the lack of any reasonable other explanation for the “representations” leave me unable to find that nothing happened or persuaded to the extent necessary that something did happen.

Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both parents

1. Both parents were involved with the child’s care during their relationship. However, since separation, the mother has been the primary carer for the child.

2. When the child attended the interview with the single expert, the single expert observed a “comfortable rapport” between the child and the mother. The child was observed together with the mother and the single expert reports:[75]

   [The child] remained playful but less exuberant than when seen together with her father. The mother was more restrained and evidently anxious. [The child] asked to go to the toilet and ran off independently with her mother following slowly behind. [The child] then commented: You don’t have to keep telling me that”, in response to a comment by her Mum about [the child] not living with her Dad.

   [75] Exhibit J1.

3. During her interview with the Family Consultant, the child was asked questions designed to given an indication of her “emotional dependency”.  The child said that when she was “sick” and “sad”, it was her mother that she wanted and her mother gave her “huggle buggles”.[76]  After observing the mother with the child, the Family Consultant reported that their interactions suggested a “warm and easy relationship between them.”[77]

   [76] Exhibit J2, 6.

   [77] Exhibit J2, 7.

4. Based on her observation of the mother with the child and the child’s comments, the Family Consultant reported that “[The child] appears to have an emotional dependence on her mother.”  This was consistent with the child having spent the bulk of her time with the mother since separation.[78]

   [78] Exhibit J2, 7 to 8.

5. On the father’s evidence, the child has a good relationship with him.  At the commencement of time with the father on Sunday, the child frequently runs to the father, jumps to embrace him, kisses him and says “Daddy, Daddy”.[79]

   [79] Father’s affidavit, filed 23 November 2012, [14].

6. The father’s positive perception of his relationship with the child is consistent with the child’s report of her feelings towards the father to the single expert:[80]  “She told me that she liked her Dad ‘A-L-O-T!’”  The single expert also observed the child with the father:[81]

   80.      … numerous positive interactions were observed. They played trains and piggy-back rides together. [The child] exclaimed: “Goody!” whilst riding on her Daddy’s shoulders. She explained that this was “because I like Daddy”. “He let me go on his shoulders and have piggy-backs! Like I was just doing then. I was going on his shoulders.”

   81.      [The child] denied that there was anything that she didn’t like about her Daddy or felt uncomfortable about: “Nope! Nothing in the whole world! And ‘world’ starts with double-u!”

   [80] Exhibit J1, [60].

   [81] Exhibit J1.

7. The child told the Family Consultant that she felt “excited” and “happy” to spend time with the father.[82]  However, when she spent time with the father during the interview with the Family Consultant:[83]

   … [the child] was concentrated on a maths work book that she had found in the playroom. Throughout the observation [the child] attended to this activity and interacted minimally with her father and mainly at his instigation. She maintained physical proximity to him but made none or little eye contact with him. She used a babyish voice much of the time which the father said to the Family Consultant after the observation suggested a “defence mechanism”. Throughout the observation the father’s interaction with [the child] was calm, warm supportive and accepting. To the father’s credit he did not attempt to distract her away from the activity or jolly her along, despite the likelihood that he was frustrated by her limited interaction with him.

   [The child’s] behaviour suggested a child who was uncertain about how she should react to her father and so she minimised her interaction with him. It is likely, as the father suggested, that [the child] becomes “little” as a defence to the emotions that she is unsure how to react to.

   [82] Exhibit J2, 6.

   [83] Exhibit J2, 7.

8. The Family Consultant also concluded that the child has a positive relationship with the father and “probably one that has been emotionally close.”  However, the Family Consultant also identified some issues surrounding the child’s relationship with the father:[84]

   There is currently however an ambiguity and ambivalence around her relationship with him associated with the allegations and the information coming from her mother about her father being “naughty” and her suggestions to [the child] that she cannot be safe in the sole care of her father. This is confusing and disquieting for a child, particularly when her experience of her father does not seem to fit with her mother’s apparent perception of him and her depiction of him to [the child].

   [84] Exhibit J2, 8 and 9

9. In summary, there is sufficient evidence to satisfy me that there will be an advantage all other things being equal for the child to have a relationship with her father.  For the child to have a relationship with her father in circumstances where she might be at risk would potentially preclude her from having a satisfactory relationship with her mother. Section 60CC provides (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; (Emphasis added)

10. The word chosen by the legislature was “both” not “each”.  One of the problems that arises from this particular statutory prescription that while it might be easy to acknowledge in the ordinary course of events that a child should have a relationship with both of the parents it does not follow that if she is going to have a relationship primarily with one parent that it must necessarily follow that she will benefit from having a relationship with the other parent.  The distinction is between “each” and “both”. 

11. In this matter the father accepts that the child believes that she has been sexually abused by him.  The father accepts that the mother has not coached the child at least in relation to the specific disclosures that she has made.  The mother believes that the child has been abused by the father.  I accept that belief.  The question then arises as to whether there is in the circumstances a benefit to the child in a relationship with both of her parents. 

12. On balance it seems to me that there is a benefit to her in having a relationship with her father at least in circumstances where she is safe from abuse.  Put in the negative form - that there is no unacceptable risk to her of abuse.  In coming to that conclusion I accept the evidence of the observations of those who are far more expert then I about relationships as to the response of the child to her father.  I accept also that at present at least, she is responding negatively  to her father. 

13. The potential for her to have a positive relationship with her father is in my opinion, demonstrated by her past activities.  As she grows older, her ability to be more discerning about her relationships and her ability to rebuff any untoward action by her father (and/or to report it subsequently) increases. 

14. These factors in my opinion would demonstrate that it is the child’s best interests to have a continuing relationship with her father but only in circumstances where she is appropriately supervised. 

Additional considerations

Section 60CC(3)(a) – any views expressed by the child

1. I believe I have dealt with these matters effectively in the comments I have made above. 

Section 60CC(3)(b) – the nature of the child’s relationship with each of the parents and other persons

1. I have already to some extent examined the relationship between the child and each of her parents.  In the end if she is to live primarily with her mother which in my opinion is the only reasonable outcome based on the evidence in this matter at present, I have said as much as I need to say about the relationship between her and each of her parents.  It would significantly affect the relationship between her and her mother if the child were to have unsupervised time with her father. 

2. To some extent it is not crucial that this should be a rational response on the part of the mother although it is a factor I do take into account.  It is important that in preserving whatever relationship the child has with her father that this should not be to the detriment of her relationship with her mother.  In saying this, I am conscious of the fact that it is important that I should not simply accept that the child’s relationship with her mother should supersede all other matters.

3. The child has a good relationship with her mother’s mother.  Her relationship with her father’s mother appears to be also satisfactory although the incident in the car at McDonald’s is not a good example of how this might be continued and preserved.  I am prepared to accept that there is a benefit to the child in having a relationship with each of her extended families and the orders that I make about this matter will enable that to occur.  The father’s family will be (and I regard as suitable persons to be) supervisors.  In coming to that conclusion I take account of the child’s relationship with them but also her increasing age, her intelligence, her heightened awareness of what might be untoward conduct and her ability to report it subsequently. 

Section 60CC(3)(c) – the willingness and ability of each parent to facilitate and encourage a relationship between the child and the other parent

1. The mother facilitated a “supervised” visit between the child and the father at Questacon after the child had made disclosures about the father sexually abusing her.  The mother has also complied with court orders for the child to spend supervised time with the father.[85]

   [85] Mother’s affidavit, [133] and [145].

2. Between April 2012 and 7 May 2012, there were no specific court orders in place for the father to spend time with the child.  The Federal Magistrate’s orders were for the father to spend time with the child as agreed between the parties.

3. In this period, the mother proposed that the father spend time with the child mid-week between 4 pm and 6:30 pm and on Saturday between 2 pm and 5 pm.  The mother offered for the child to spend time with the father at McDonald’s on one occasion, but did not offer to be the direct supervisor.  The father declined this offer.[86]

   [86] Mother’s affidavit, [150] and [151].

4. The mother has also offered the father make-up time with the child when his ordinary time with the child pursuant to court orders did not take place.  For example in August 2012, the child was due to attend a friend’s birthday party and this coincided with her time with the father.  The mother offered for the child to spend make-up time with the father on another day.[87]

   [87] Mother’s affidavit, [180].

5. The mother asserts that there were some difficulties with the paternal grandparents supervising contact between the father and the child, with the child making comments that she had been bush walking and bike riding alone with the father.[88]  As a result, the mother did not allow the child to spend time with the father supervised by the paternal grandparents on some occasions.  However, she did contact the contact centre to arrange an intake assessment and interview, taking the view that perhaps they would be an appropriate supervisor.[89]

   [88] Mother’s affidavit, [184] and [187].

   [89] Mother’s affidavit, [203].

6. The father says an incident occurred where the mother involved the child in a “culling” of photographs of the father. The single expert reports:[90]

   12.      … [the child] had helped the mother “cull” all the photos of the parents together. At the mother’s request, [the child] had chucked them in the bin. She had been involved in this activity when [the child] had come in and asked to help. The mother did could [sic] not see that this may be problematic. …

   [90] Exhibit J1, [12].

7. The single expert said “The mother’s encouragement of [the child] to express hostile behaviour towards the father, such as disposing of his photographs, was indicative of her inability to support an ongoing relationship between [the child] and her father.”[91]

   [91] Exhibit J1, [112].

8. Given the more recent disclosures by the child about what she says her father did to her, the mother has a reluctance to continue any relationship between the child and her father.  While this is understandable, her reluctance cannot prevail over the advantage to the child in having a relationship with her father and her father’s family in circumstances where she is acceptably safe from the possibility of her being abused, if indeed she has been abused. 

9. The mother’s ability to encourage the relationship between the child and her father has been shown in more recent evidence by the disclosure that she actually initiated contact with the father saying that the child missed her father.  Admittedly this was before the relationship finally broke down, but is indicative of a broader awareness of the mother of the importance of the child’s relationship with her father notwithstanding what she (the mother) believes has occurred. 

10. The father has always expressed a willingness for the child to have time with her mother although his impatience and frustration with the child’s new revelations and the father’s belief that these have in some part been at least encouraged by the mother complicates the issue.  In my opinion there is no reasonable basis for suggesting that the child should live with her father.  The physical circumstances are that this has not been something that has occurred for a long time now (although this is not necessarily the father’s fault) reinforces this conclusion. 

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances

1. If the child were to live primarily with her father this would be a profound change in her circumstances.  If she lives with her mother in Adelaide that will also be a significant change in her circumstances.  If she sees less of her father this will potentially reinforce the view that her father was “naughty” towards her - putting it at its least.  If she is to live primarily with her mother and if the child’s mother is going to be more comfortable living in Adelaide and if there are no other strong reasons for preventing her from moving to Adelaide then the change is one which in my opinion would be in the best interests of the child.  This is subject of course to her being able to maintain, in accordance with the previous conclusions I have reached, a relationship with her father in circumstances where she can be safe.  That must necessarily be difficult to accomplish. 

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time and communicating with a parent

1. The conclusions I have reached above inevitably impact upon the practical difficulties of the child spending time with her father.  If she lives in Adelaide and the father lives in Canberra and the father is on a pension and the mother has limited financial circumstances this is not a case where the child can simply be put on a plane from time-to-time to spend time with her father.  The arrangements whereby she might spend some time during her school holidays with her father seemed to offer the best solution to this.  The father’s occasional reluctance to exercise time that he might have had available leads me to conclude that there may be some difficulty with his implementing arrangements about that time.  However, that is not a matter that I can make a determination about at this point.  I can only make orders that will facilitate those things which I consider to be in the child’s best interests and her continuing to have a relationship with her father in supervised and safe circumstances fall within that category.  This will inevitably cause difficulty for both parents and I accept that that is part of the difficulty with the orders that I make. 

Section 60CC(3)(f) – the capacity of the parents and any other person to provide for the child’s needs

1. There is no doubt that the mother’s health provides some impediment to the satisfaction of the child’s needs.  I am not satisfied that the father’s psychological health is such as would necessarily provide for all of the child’s needs.  Whatever difficulties the father may face are not going to impact upon his ability to care for her in supervised circumstances where his family are the supervisors.  There is nothing suggested which would indicate that the mother is incapable of looking after the child’s physical, emotional, psychological and educational needs if she were in her primary care except for the continuing suggestion that the mother has unduly influenced the child. 

1. Within 7 days of the date of these Orders, the mother will provide an authority           to the child’s school authorising the release of school reports and school      photograph order forms to the father.

2. Within 7 days of the date of these Orders, the mother will provide an authority           to each of the child’s treating medical practitioners authorising the release of            information to the father in relation to the child’s medical treatment.

3. The father may communicate with the child by telephone as follows:
              a.        On Christmas day when the child is not in his care;
              b.        On the father’s birthday;
              c.        On the child’s birthday
    

APPENDIX B

1. That the child namely [N] born … 2016 live with the mother. 

2. That the mother has sole parental responsibility for the child.

3. That the father spend no time with the child.

4. That the mother be at liberty to relocate the child’s permanent residence to     Adelaide, South Australia.

5. In the event that the Court orders the father spend time with the child, the       father’s time with the child be as contained in the “Parenting Orders in the       Alternative” Minutes of Orders.

Parenting Orders in the Alternative – Relocation to Adelaide

1. That the child namely [N] born … 2016 live with the mother. 

2. That the mother has sole parental responsibility for the child.

3. In the event that the mother is permitted to relocate [N’s] residence to Adelaide,        the father spend time with the child for a period of 12 months as follows:
              a.        On the second weekend in each alternate month, such time to be           supervised by the maternal grandmother in Adelaide, as follows:

   i.         From 3.30pm to 7pm Friday;

   ii.        From 10am to 5pm Saturday;

   iii.      From 10am to 3pm Sunday.
              b.        On the second weekend in each alternate month, such time to be   supervised by either the paternal grandparents or such other person as agreed between the parties in writing, in Canberra (or region) from 6pm Friday to 6pm     Sunday;
              c.        During the South Australian 1st and 3rd term school holiday periods for          three days from 9am to 5pm in the first week of the holidays supervised by the   maternal grandmother in Adelaide. 
              d.        During the South Australian 2nd and 4th term school holiday periods for         three days in the first week of the holiday period from 9am on the first day to      5pm on the last day (and in the 4th term holidays such time to be inclusive of         Christmas Day) supervised by the paternal grandparents, or such other person   as agreed in writing between the parties, in Canberra (or region);

4. Following time in Order 3 the father will spend time with the child on an        unsupervised basis for a period of 12 months as follows:
              a.        On the second weekend of each alternate month in Adelaide as follows:

   i.         From 3.30pm to 7pm Friday;

   ii.        From 10am to 5pm Saturday;

   iii.      From 10am to 3pm Sunday.
              b.        On the second weekend of each alternate month in Canberra (or region)          from 6pm Friday to 6pm Sunday, providing that all overnight time is          supervised by the paternal grandparents or such other person as agreed between     the parties in writing.
   c.        During the South Australian 1st and 3rd term school holiday periods for four days from 9am to 5pm in the first week of the holidays supervised by the    maternal grandmother in Adelaide;
   d.        During the South Australian 2nd and 4th term school holiday periods for four days in the second week of the holiday period from 9am on the first day to 5pm   on the last day, supervised by the paternal grandparents or other person agreed          in writing in Canberra (or region).

5. Following time in Order 4 the father will spend time with the child on an        unsupervised basis as follows:
              a.        On the second weekend of each alternate month in Adelaide from 6pm            Friday to 6pm Sunday;
              b.        On the second weekend of each alternate month in Canberra (or region)          from 6pm Friday to 6pm Sunday;
              c.        One half of each of the South Australian school holiday periods as       agreed between the parties and failing agreement:

   i.         For the first half in years ending with an odd number; and

   ii.        The second half in years ending in an even number.

6. The mother will pay for the costs of the child’s flights to and from Canberra to          Adelaide and return on the weekends that she spends with the father in            Canberra.

7. The father be responsible for the costs of his own flights between Canberra and         Adelaide on weekends that his time with the child takes place in Adelaide.

8. For the purposes of the child flying unaccompanied, the father’s [sic] will       ensure that his nominated supervisor will do all acts and things to registered     [sic] with the airline that they will be available to collect the child at the      Canberra airport with the father at the commencement of his time. 

9. In the event that the father’s nominated supervisor does not register with the   airline on which the child is to travel, the child will not depart Adelaide until          those arrangements have been confirmed to the mother in writing or with the          airline in question.

10. The supervisor of the father’s time with the child will be as agreed between the          parties in writing, or one of the already agreed supervisors who have provided       an Undertaking to the Court in relation to the provision of supervision for the      father’s time with the child. 

11. For the purposes of the father’s time with the child, the father is not to:
               a.        Bath or shower with the child at any time;
               b.        Change or dress the child unless in the presence of a female supervisor;
               c.        Discuss any aspect of the Court proceedings within the presence or      hearing of the child;
               d.        Be left unsupervised with the child at any time;
               e.        Consume any alcohol, kava or illicit substances, including poppy tea,    during any period of time with the child.

12. The father will submit to supervised chain of custody urinalysis testing on a    monthly basis for a period of 12 months from the date of the Orders, and will          produce to the mother the result of all tests undertaken.  In the event that the      tests show positive results for illicit substances not otherwise explained by a     treating medical professional, all time between the father and child will be      suspended. 

13. For the purposes of educating the child about appropriate protective     behaviours, the child is to consult with Ms [D] or such other appropriately   qualified child psychologist or therapist as nominated by the mother.

14. Within 7 days of the date of these Orders, the mother will provide an authority           to the child’s school authorising the release of school reports and school      photograph order forms to the father.

15. Within 7 days of the date of these Orders, the mother will provide an authority           to each of the child’s treating medical practitioners authorising the release of            information to the father in relation to the child’s medical treatment.

16. The father may communicate with the child by telephone as follows:
               f.         On Christmas day when the child is not in his care;
               g.        On the father’s birthday;
               h.        On the child’s birthday

APPENDIX C

The Respondent Father seeks the following Orders, that:

1. The Father and the Mother have equal shared parental responsibility for the     child [N], born … 2006;

2. The child spend time with the father as follows:
              2.1      For 3 months:
     2.1.1   From 9:00 am to 5:00 pm on Saturday and on Sunday every   second weekend;
     2.1.2   Each Thursday from after school until 7:00 pm.
              2.2      For a further 3 months:
     2.2.1   From 9:00 am Saturday until 5:00 pm Sunday every second   weekend;
     2.2.2   Each Thursday from after school until 7:00 pm.
              2.3      Thereafter:
     2.3.1   From after school on Friday until the commencement of school   on Monday and Tuesday in the event that Monday is a public holiday,   every second weekend; and
     2.3.2   From after school on Wednesday until the commencement of   school on Thursday each week;
     2.3.3   Such further or other times as agreed.
              2.4      For half of each school holiday period, being the first half in 2013 (but   commencing in Term 3 holidays in that year only) and every second   year thereafter and the second half in 2014 and every second year   thereafter;
     2.4.1   Such further or other times as may be agreed; and
              2.5      That the child live with the mother at all other times.

3. Notwithstanding the above orders, the parent with whom the child is not          otherwise living on the child’s birthday care for the child from after school        until 6:30pm if the birthday falls on a school day and from 2:00 m to 6:00 pm      in the event the birthday falls on a non-school day. 

4. In the event that Father’s Day falls during a period that the child is living with the mother, the child spend time with the father from 10:00 am until 5:00 pm            on Father’s Day. 

5. In the event that Mother’s Day falls during a period that the child is living with           the father, the child spend time with the mother from 10:00 am until 5:00 pm on Mother’s Day. 

6. For the purposes of the time the child spends with the father, the father collect          the child from the mother at the beginning of any care period not otherwise           commencing at school and the mother collect the child from the father at the       conclusion of any care period not otherwise concluding at school.

7. The mother facilitate and enable the child to receive a telephone call from the           father between 5:30 pm and 6:30 pm every second day that the child is not       otherwise in the father’s care.

8. This order be authority to the school attended by the child to provide to the     father copies of the school reports for the child, notices and invitations        normally provided by the school to parents, to include photograph ordering           forms and the father will make his own arrangements with respect to ordering         and paying for any such photographs of the child.

9. Each party be at liberty to attend at the child’s school for the purposes of any function to which parents are normally invited to attend.

10. Each party be and is hereby restrained from:
               10.1    Enrolling the child in extracurricular activities without the agreement of   the other; and     
               10.2    Accepting invitations for events for the child or organising such, which   occur while the child is scheduled to be in the care of the other parent,   without the consent of that parent.

11. That each other party keep the other informed of changes to the child’s health            while the child is in their care and as soon as practicable, notify the other parent   of any medical emergency involving the child.

12. This order be authority to any doctor, other medical specialist or counsellor or          therapist, upon whom the child may attend, to provide to the father all     information he may request with respect to the child and copies of any reports     arising. 

13. The parties do all acts and things necessary to facilitate the attendance of the child upon a psychologist or counsellor as agreed or as ordered and upon the           recommendations of Ms [W], Court Consultant, for such period of time as may           be recommended by the Counsellor or Psychologist and the mother otherwise      be restrained from facilitating the child’s attendance upon a counsellor or       therapist without the written consent of the father. 

14. The mother be and is hereby restrained from discussing with the child or        permitting any other person to do so:
               14.1    The allegations the subject of these proceedings;
               14.2    Any suggestion that the father has been or is “naughty”; and
               14.3    From saying unpleasant or unkind things of or about the father.

15. Such further or other orders as the Court considers appropriate. 

APPENDIX D

The Respondent Father seeks the following Orders, to apply in the event the mother and child live in Canberra, ACT, that:

1. The Father and the Mother have equal shared parental responsibility for the     child [N], born … 2006;

2. The child live with the mother.

3. The mother be restrained from changing the child’s residence from the           Australian Capital Territory and surrounding region.

4. Both parties must reside within 50km of the Canberra City GPO Box.

5. The child spend time with the father as follows:
              5.1      For 3 months:
     5.1.1   From 9:00 am to 5:00 pm on each of Saturday and on Sunday   every second weekend;
     5.1.2   Each Thursday, or such other day as agreed, from after school   until 7:00 pm;
     5.1.3   In school holiday time, for 5 consecutive days in the school   holiday period, from 9.00am to 5.00pm each day, on days agreed   and failing agreement, from the first day after school has   concluded;
              5.2      For a further 3 months:
     5.2.1   From 9:00 am Saturday until 5:00 pm Sunday every second   weekend;
     5.2.2   Each Thursday, or such other day as agreed, from after school   until 7:00 pm;
     5.2.3   In school holiday time, for 7 consecutive days in the school   holiday period, with an overnight period at the beginning of and   at the end of that care period, and otherwise, from 9.00am to   5.00pm each day, on days agreed and failing agreement, from the   first day after school has concluded;
              5.3      Thereafter:
     5.3.1   From after school on Friday, or Thursday in the event Friday is a   public holiday, until the commencement of school on Monday   and Tuesday in the event that Monday is a public holiday, every   second weekend; and
     5.3.2   From after school on Wednesday until the commencement of   school on Thursday each week;
     5.3.3   For half of each school holiday period, being the first half in   2014 and every second year thereafter and the second half in 205   and every second year thereafter;
              5.4      Such further or other times as may be agreed and the mother shall not             unreasonably withhold her consent to the child attending, with the   father, other significant occasions or events, including the celebration of   milestone birthdays, weddings and or funerals of close relatives and or   friends.

6. Notwithstanding the above orders, the parent with whom the child is not          otherwise living on the child’s birthday care for the child from after school        until 7:00 pm if the birthday falls on a school day and from 10:00 pm [sic] to        1:00 pm in the event the birthday falls on a non-school day. 

7. In the event that Father’s Day falls during a period that the child is living with the mother, the child spend time with the father from 10:00 am until 5:00 pm            on Father’s Day. 

8. In the event that Mother’s Day falls during a period that the child is living with           the father, the child spend time with the mother from 10:00 am until 5:00 pm on Mother’s Day. 

9. For the purposes of the time the child spends with the father, the father or his            nominee collect the child from the mother at the beginning of any care period     not otherwise commencing at school and the mother or her nominee collect the child from the father at the conclusion of any care period not otherwise            concluding at school.

10. The mother facilitate and enable the child to receive a telephone call from the           father between 5:30 pm and 6:30 pm every second day that the child is not       otherwise in the father’s care.

11. This order be authority to the school attended by the child to provide to the     father:
               11.1     copies of the school reports for the child, notices and invitations   normally provided by the school to parents (and including photograph                  ordering forms and the father will make his own arrangements with   respect to ordering and paying for any such photographs of the child);
               11.2     copies of correspondence, invitations or application forms provided to   the child in relation to any streaming or accelerated educational or   learning program;
               11.3     particulars of the child’s absences from school (if any) and information   about any communications received by the school in explanation of   those absences;
               11.4     particulars of any late arrivals, early departures or delayed collections of                    the child at the school;
               11.5     particulars of any first-aid, immunisation or medical treatment   administered to the child by the school;
               11.6     particulars of those persons nominated as persons who may collect or             deliver the child from school (if applicable);
               11.7     copies of school policies, procedures or curriculum upon the father   requesting copies of such documents.

12. The mother advise the father of the child’s enrolment in any before or after     school care programme and any holiday care programme and provide        particulars of the child’s attendance at such at the end of each school Term or            school holiday period, as applicable.

13. Each party be and is hereby restrained from:
               13.1    Enrolling the child in extracurricular activities without the agreement of   the other; and     
               13.2    Accepting invitations for events for the child or organising such, which   occur while the child is scheduled to be in the care of the other parent,   without the consent of that parent;
               13.3    Causing the child to be referred to by any other surname.

14. Each party is to provide to the other party not less than 7 days prior notice of their intention to cohabit with any other person.  For the purposes of this Order,    cohabitation is taken to refer to ongoing residence in the same household as a      parent for a period exceeding 4 weeks. 

15. Each party keep the other informed of changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any       medical emergency involving the child.

16. In the event either party is unable to provide care to the child due to ill health,            accident, unexpected work commitment, or hospitalisation, that party advise       the other as soon as practicable of the circumstances arising and provide to the    other parent, the first opportunity to provide care for the child. 

17. This order be authority to any doctor, other medical specialist or counsellor or          therapist, upon whom the child may attend, to provide to the father all     information he may request with respect to the child and copies of any reports     arising. 

18. The mother be and is hereby restrained from discussing with and questioning the child about, or permitting any other person to do so:
               18.1    the allegations the subject of these proceedings;
               18.2    any suggestion that the father has been or is “naughty”; and
               18.3    from saying unkind or unpleasant things about the father.

19. The mother pay the father’s costs of and incidental to these proceedings.

First Alternative Orders
The Respondent Father seeks the following Orders, to apply in the event the mother elects to live in Adelaide, South Australia, and the child live in Canberra, ACT, that:

1. The Father and the Mother have equal shared parental responsibility for the     child [N], born … 2006;

2. That upon the mother’s relocation to Adelaide, South Australia, the child live   with the father.

3. Following the mother’s relocation, the child spend time with the mother as     follows:
              3.1      For half of each school holiday period, being the second half in 2014              and every second year thereafter and the first half in 2015 and every   second year thereafter;
              3.2      For one weekend in Canberra each school term, from after school on              Friday, or Thursday in the event Friday is a public holiday, until 5:00pm                Sunday, unless Monday is a long weekend in which case, until 5.00pm   Monday, on a weekend to be agreed (and preferably to coincide with an                   ACT long weekend) and failing agreement, the weekend occurring at the                    end of week six of each school term;
              3.3      For one weekend in Adelaide each school term, from after school on   Friday, or Thursday in the event Friday is a public holiday, until 5:00pm                Sunday, unless a Monday is a public holiday in which case, until 5.00pm   Monday, on a weekend to be agreed (and preferably to coincide with an                   SA long weekend) and failing agreement, the weekend occurring at the   end of week three of each school term;
              3.4      In the event that the mother is presenting [sic] the Australian Capital   Territory on Mother’s Day, from 10:00 am until 5:00 pm;
   3.5 Such further or other times as may be agreed, including in the event the mother is in the ACT, and upon the mother providing the father reasonable notice of her intention to be in the ACT.

1. For the purposes of facilitating the mother’s time with the child pursuant to    Order 3, the father will pay the costs of the child’s travel to spend time with the mother in Adelaide during the school term visits, including, where necessary, the costs of flights for accompanying adults.  Otherwise, the costs associated            with the child’s travel to Adelaide or the mother’s travel to and accommodation         in Canberra are to be met solely by the mother.

2. For the purposes of the time the child spends with the mother in Canberra, the           father or his nominee deliver the child to the mother, at an agreed location in           Canberra, at the beginning of any care period and the mother or her nominee       return the child to the father at the conclusion of the care period.

3. For the purposes of the time the child spends with the mother in Adelaide, the            father or his agent deliver the child to the mother at an agreed location in    Adelaide, a the beginning of any care period and the mother return the child to    the father or his agent, at the conclusion of the care period.

4. The father facilitate and enable the child to receive a call via video system or software from the mother between 5:30 pm and 6:30 pm every second day that      the child is not otherwise in the mother’s care.  Each party is to obtain, install         and maintain HD video-streaming internet capability and appropriately            matched camera and software at their respective homes.  Video is to be the      preferred method for this call but in the event it is unavailable the call is to be facilitated by audio telephone call. 

5. This order be authority to the school attended by the child to provide to the     mother:
              8.1      copies of the school reports for the child, notices and invitations   normally provided by the school to parents (and including photograph                  ordering forms and the father will make his own arrangements with   respect to ordering and paying for any such photographs of the child);
              8.2      copies of correspondence, invitations or application forms provided to   the child in relation to any streaming or accelerated educational or   learning program;
              8.3      particulars of the child’s absences from school (if any) and information   about any communications received by the school in explanation of   those absences;
              8.4      particulars of any late arrivals, early departures or delayed collections of                    the child at the school;
              8.5      particulars of any first-aid, immunisation or medical treatment   administered to the child by the school;
              8.6      particulars of those persons nominated as persons who may collect or             deliver the child from school (if applicable);
              8.7      copies of school policies, procedures or curriculum upon the father   requesting copies of such documents.

6. The father advise the mother of the child’s enrolment in any before or after     school care programme and any holiday care programme and provide        particulars of the child’s attendance at such at the end of each school Term or            school holiday period, as applicable.

7. Each party keep the other informed of changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any       medical emergency involving the child.

8. Each party is to provide to the other party not less than 7 days prior notice of their intention to cohabit with any other person.  For the purposes of this Order,    cohabitation is taken to refer to ongoing residence in the same household as a      parent for a period exceeding 4 weeks. 

9. In the event either party is unable to provide care to the child due to ill health,            accident, unexpected work commitment, or hospitalisation, that party advise       the other as soon as practicable of the circumstances arising and provide to the    other parent, the first opportunity to provide care for the child. 

10. This order be authority to any doctor, other medical specialist or counsellor or          therapist, upon whom the child may attend, to provide to the father all     information he may request with respect to the child and copies of any reports     arising. 

11. The mother be and is hereby restrained from discussing with and questioning the child about, or permitting any other person to do so:
               14.1    the allegations the subject of these proceedings;
               14.2    any suggestion that the father has been or is “naughty”; and
               14.3    from saying unkind or unpleasant things about the father.

12. The mother pay the father’s costs of and incidental to these proceedings.

Second Alternative Orders
The Respondent Father seeks Orders, in the event the child lives in Adelaide, South Australia, that:

1. The Father and the Mother have equal shared parental responsibility for the     child [N], born … 2006;

2. The mother be restrained from changing the child’s residence from the ACT until completion of the child spending time with the father, in Canberra, in accordance with Orders 4.1, 4.2 and for 4 fortnights of time in accordance with Order 4.3 above.

3. Thereafter, upon the mother’s relocation to Adelaide, South Australia with the            child, the child spend time with the father as follows:
              3.1      For half of each school holiday period, being the first half in 2014 and   every second year thereafter and the second half in 2015 and every   second year thereafter;
              3.2      For one weekend in Canberra each school term, from after school on              Friday, or Thursday in the event Friday is a public holiday, until 5:00pm                Sunday, unless a Monday is a public holiday in which case, until 5.00pm   Monday, on a weekend to be agreed (and preferably to coincide with an                   ACT long weekend) and failing agreement, the weekend occurring at the                    end of week six of each school term;
              3.3      For one weekend in Adelaide each school term, from after school on   Friday, or Thursday in the event Friday is a public holiday, until 5:00pm                Sunday, unless a Monday is a public holiday in which case, until 5.00pm   Monday, on a weekend to be agreed (and preferably to coincide with an                   SA long weekend) and failing agreement, the weekend occurring at the   end of week three of each school term;
              3.4      In the event that the father is present in Adelaide on Father’s Day, from   10:00 am until 5:00 pm;
              3.5      Such further or other times as may be agreed, including in the event the   father is in Adelaide, and upon the father providing the mother   reasonable notice of her intention to be in Adelaide.

4. For the purposes of facilitating the father’s time with the child pursuant to      Order 3, the father will pay the costs of his travel to spend time with the child     in Adelaide and the mother will pay for the costs of the child’s travel to    Canberra to spend time with the father, including, where necessary, flights for            accompanying adults. 

5. For the purposes of the time the child spends with the father in Adelaide, the   father or his nominee is to collect the child from the mother at the beginning of any care period, at an agreed location and return the child to the mother at the     conclusion of any care period, at an agreed location and failing agreement,            changeover occur at the Adelaide airport. 

6. For the purposes of the time the child spends with the father in Canberra, the mother or her agent deliver the child to the father at an agreed location in      Canberra, at the beginning of any care period, and the mother or her agent   collect the child from the father at the conclusion of the care period, at an      agreed location and failing agreement, changeover occur at the Canberra         airport. 

7. The mother facilitate and enable the child to receive a call via video system or           software from the father between 5:30 pm and 6:30 pm every second day that        the child is not otherwise in the father’s care.  Each party is to obtain, install         and maintain broadband internet access which facilitates HD video-streaming      internet capability and appropriately matched camera and software at their      respective homes.  Video is to be the preferred method for this call but in the         event it is unavailable the call is to be facilitated by audio telephone call. 

8. The mother include the father’s details on any school enrolment form for the child and that the father is included as an emergency contact for the child at any school attended by the child. 

9. This order be authority to the school attended by the child to provide to the     father:
              9.1      copies of the school reports for the child, notices and invitations   normally provided by the school to parents (and including photograph                  ordering forms and the father will make his own arrangements with   respect to ordering and paying for any such photographs of the child);
              9.2      copies of correspondence, invitations or application forms provided to   the child in relation to any streaming or accelerated educational or   learning program;
              9.3      particulars of the child’s absences from school (if any) and information   about any communications received by the school in explanation of   those absences;
              9.4      particulars of any late arrivals, early departures or delayed collections of                    the child at the school;
              9.5      particulars of any first-aid, immunisation or medical treatment   administered to the child by the school;
              9.6      particulars of those persons nominated as persons who may collect or             deliver the child from school (if applicable);
              9.7      copies of school policies, procedures or curriculum upon the father   requesting copies of such documents.

10. The mother advise the father of the child’s enrolment in any before or after     school care programme and any holiday care programme and provide        particulars of the child’s attendance at such at the end of each school Term or            school holiday period, as applicable.

11. Each party is to provide to the other party no less than 7 days prior notice of   their intention to cohabit with any other person.  For the purposes of this Order,    cohabitation is taken to refer to ongoing residence in the same household as a      parent for a period exceeding 4 weeks. 

12. Each party be and is hereby restrained from:
               13.1[sic]Enrolling the child in extracurricular activities without the agreement of                   the other; and     
               13.2[sic]Accepting invitations for events for the child or organising such, which                    occur while the child is scheduled to be in the care of the other parent,   without the consent of that parent;
               13.3[sic]Causing the child to be referred to by any other surname.

13. That each party keep the other informed of changes to the child’s health while            the child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the child.

14. In the event either party is unable to provide care to the child due to ill health,            accident, unexpected work commitment, or hospitalisation, that party advise       the other as soon as practicable of the circumstances arising and provide to the    other parent, the first opportunity to provide care for the child. 

15. This order be authority to any doctor, other medical specialist or counsellor or          therapist, upon whom the child may attend, to provide to the father all     information he may request with respect to the child and copies of any reports     arising. 

16. The mother be and is hereby restrained from discussing with and questioning the child about, or permitting any other person to do so:
               16.1    the allegations the subject of these proceedings;
               16.2    any suggestion that the father has been or is “naughty”; and
               16.3    from saying unkind or unpleasant things about the father.

17. The mother pay the father’s costs of and incidental to these proceedings.