NIXON & WOODWARD

[2014] FCCA 2288

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIXON & WOODWARD [2014] FCCA 2288

Catchwords:
FAMILY LAW – Time spent with father by child – exposure of child to serious family violence – whether equal shared responsibility is applied – graduated increase in time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC, 61C, 61DA(1)(2)(4), 65DAA(1), 65DAA(2), 68P

MRR & GR [2010] HCA 4

Applicant: MS NIXON

Respondent: MR WOODWARD

File Number: DGC 438 of 2010

Judgment of: Judge Jones

Hearing dates: 28, 29, 30, 31 July 2014 and 1 August 2014

Date of Last Submission: 1 August 2014

Delivered at: Dandenong

Delivered on: 10 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Connley

Solicitors for the Applicant: Conley McInnes Lawyers

Counsel for the Respondents: Mr Hamilton

Solicitors for the Respondent: Thexton Lawyers

Counsel for the Independent Children's Lawyer: Ms Stavrakakis

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders are discharged.

2. The Mother and Father have equal shared parental responsibility for X born (omitted) 2008 (“X”).

3. X live with the Mother.

4. X spend time and communicate with the Father as follows:

   (a)From 10am to 4pm each alternate Sunday commencing 19 October 2014 for period of 12 consecutive visits, such time to take place within the (omitted) and district area;

   (b)Thereafter, each alternate weekend from 10am Saturday to 12pm Sunday for a period of 4 consecutive visits;

   (c)Thereafter, each alternate weekend from 10am Saturday to 6pm Sunday;

   (d)Father’s Day weekend from 10am Saturday to 6pm Sunday commencing 2015;

   (e)From 10am on 23 December to 12pm on 25 December 2015 and each alternate year thereafter ;

   (f)From 2pm on 25 December  to 6pm on 27 December 2016 and each alternate year thereafter;

   (g)In the long summer school holiday period commencing the conclusion of term 4 2015, 7 days, week about, and each alternate year thereafter;

   (h)Commencing in the term 3 school holiday period 2015, for one half of each school term holiday period from 10am on the day following the end of term to 6pm on the following Saturday;

   (i)Commencing 2016, and where X is not spending time with the father on Father’s Day, from 10am Sunday to 6pm Sunday;

   (j)On X’s birthday, where X is not spending time with her father, from 10am to 2pm;

   (k)By telephone each Wednesday from 5.30-6pm, with the father to initiate the telephone calls to the mother’s mobile number;

   (l)On 25 December 2014 from 10am to 10:30am by telephone, with the father to initiate the telephone call to the mother’s mobile phone number; and

   (m)Other times to be agreed between the parties.

5. The Father’s time pursuant to paragraph 4(a) herein be supervised as follows:

   (a)For the first 6 periods of time by a maternal cousin or other maternal family member nominated by the Mother; and

   (b)For the second 6 periods of time by the Father’s partner Ms R or other paternal family member chosen by the Father with prior written notification to the mother.

6. From the commencement of the 2016 school year, the alternate weekends are to commence at 10am Friday if it is a non-school day and conclude at 6pm Monday if it is a non-school day.

7. The alternate weekends referred to at paragraph 4 above will continue throughout all school holiday periods until the commencement of term 3 school holiday period 2015.

8. The Father’s time with X pursuant to paragraph 4 above be suspended as follows:

   (a)Mother’s Day weekend from 10am Saturday to 6 pm Sunday;

   (b)From 12pm on 25 December to 6pm on 27 December 2015 and each alternate year thereafter; and

   (c)From 10am on 23 December  to 2pm on 25 December 2016 and each alternate year thereafter.

9. Changeover take place as follows:

   (a)For the purposes of the father’s time pursuant to paragraph 4(a) herein, at Boyd House Children’s Contact Service for a period of 12 months from the date of these orders or other place to be agreed between the parties in writing in the event that Boyd house is not available on a particular occasion; and

   (b)Thereafter, at McDonald's (omitted) or other place to be agreed between the parties in writing.

10. The Mother and Father forthwith do all acts and things to apply for supervised changeover at Boyd House Children’s Contact Service for changeover pursuant to paragraph 9(a).

11. The Mother will forthwith authorise X's School to:

    (a)Add the Father as a parent on X’s enrolment records, with the Father to provide such personal details; and

    (b)Provide the Father, at his sole expense, copies of all school reports, photo orders forms, newsletters and other documents ordinarily sent to parents.

12. The Mother and Father forthwith keep each other informed of:

    (a)Any serious illness and/or accident suffered by X;

    (b)Any serious illness and/or accident to which X is exposed; and

    (c)Any serious illness and/or accident that prohibits the Mother or Father from caring for X.

13. The Mother and Father forthwith commence using a communication book to notify the other parent of any minor illness, medication doses or other matters pertaining solely to X’s health, well-being and development, such book to travel with X at changeover and for X not to be shown the contents thereof. For a period of 6 months from these orders, any communication outside of the communication book is to be by text message and shall be courteous and respectful.

14. The Mother and Father and their agents are hereby restrained from:

    (a)Criticising each other, the other parent’s partner and the family members in the presence or hearing of X, or allowing any other person to do so;

    (b)Consuming alcohol to excess when X is in their respective care;

    (c)Discussing these proceedings in X’s presence or hearing or allowing any other person to do so; and

    (d)Exposing X to any form of violence or the effects of any form of violence.

15. The Mother and Father will keep each other advised at all times of their current residential address, contact telephone number and email address and notify the other parent of any change within 24 hours thereof.

16. The Mother authorises each of X’s treating health professionals to liaise with the Father in relation to information about X’s attendance, symptoms and treatment.

17. The Father is at liberty to attend all school functions to which parents are invited including information nights, parent teacher interviews, sports days and excursions.

18. The Mother and Father will each attend upon a Psychologist nominated by the Independent Children’s Lawyer (“ICL”) for counselling in relation to issues raised in the family reports prepared by Mr T and authorise the ICL to be provided confirmation that each parent has attended. The Mother and Father are to obey all lawful directions and recommendations of the Psychologist.  

19. The Mother and Father will do all things necessary to facilitate X attending upon a counsellor as nominated by the ICL for the purpose of supporting X throughout the parents implementation of these orders, until such time as a counsellor deems such support is no longer necessary. The Mother and Father will obey all lawful directions and recommendations of the counsellor.

20. The Mother and Father will do all things necessary to facilitate X attending upon a Child Psychiatrist as nominated by the ICL for the purposes of diagnosis and treatment of any disorder, including but not limited to Post-Traumatic Stress Disorder. The Mother and Father will engage with a Psychiatrist as recommended by the said Psychiatrist and obey all lawful directions and recommendations of the Psychiatrist.

21. The Mother be restrained from permitting X to attend further upon Dr J.

22. The ICL be permitted to provide the Family Reports of Mr T dated 2 July 2010, 6 December 2010 and 9 August 2013 to the following professionals:

    (a)The Psychologists referred to paragraph 18 herein;

    (b)The counsellor referred to paragraph 19 herein;

    (c)The Psychiatrist referred to paragraph 20 herein.

23. Certify for counsel.

24. The ICL be discharged 6 months from the date of this order.

25. All extant applications be dismissed.

26. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with an order set out in the Fact Sheet attached hereto and these particulars are included in these orders.

DECLARATION

1. These orders are inconsistent with the Intervention Order made on 1 February 2010 at the Magistrates Court at Dandenong but the parties agree that they are in the child’s best interests pursuant to section 68P of the Family Law Act 1975. The Applicant’s solicitor shall serve a copy of these orders upon the relevant Court.

IT IS NOTED that publication of this judgment under the pseudonym Nixon & Woodward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 438 of 2010

MS NIXON

Applicant

And

MR WOODWARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns the future parenting arrangements which are to apply to X (“X”) born on (omitted) 2008. Her mother is Ms Nixon and her father is Mr Woodward. X has a strong and loving relationship with both her parents. Both her parents also clearly love her. However, during her young life she has sadly been exposed to family violence during her parent’s relationship. After her parents separated in late 2012, she was exposed to a very terrifying violent incident between her father and his son from another relationship. The impact of this on X has loomed large in the evidence and arguments regarding the parenting arrangements which should apply to X as well as what therapeutic steps should be taken in X’s best interests into the future.

2. There is no doubt that the parents’ relationship was dysfunctional, chaotic with the family violence fuelled by alcohol abuse. It is apparent that both parents have taken steps to control their consumption of alcohol post separation.

3. The parent’s relationship post separation is hostile and characterised by an intense mistrust of each other. This hostility no doubt will have been apparent to young X. It is something that the parents must deal with in the future if they are to act in X’s best interests.

Orders sought

1. The mother seeks orders that she have sole parental responsibility for X, that X live with her and that the father spend supervised time with X twice at the Boyd House contact centre and then each Saturday from 10am to 2pm for a period of 8 weeks, with such time being spent in the (omitted)/(omitted) region. Then on alternate Saturdays (with provision for daytime contact during special days) from 10am to 7pm thereafter. She seeks changeovers initially take place at Boyd House and thereafter at a McDonald’s restaurant. She also seeks various protective provisions relating to non-denigration and the consumption of alcohol and illicit drugs.

2. The father seeks orders that the parents have equal shared parental responsibility for X, that X live with her mother and that his time with X gradually increase from daytime contact each alternate Saturday for a period of 6 weeks, to overnight contact each alternate weekend from 10am Saturday to 5pm Saturday for a period of 6 weeks and thereafter from the end of school on Friday to 5pm Sunday and for half of the school holidays (being a block of time during the short school holidays and week about during the long summer school holiday period).

3. The Independent Children’s Lawyer (ICL) proposes that both parents have equal shared parental responsibility for X, that X live with her mother and the father’s time with X be gradually increased from daytime contact each alternate Sunday from 10am to 4pm for a period of twelve consecutive visits with such time taking place in the (omitted) region. This time is to be supervised in the first 6 visits by a maternal cousin or other maternal family member nominated by the mother and in the second 6 visits by the father’s partner, Ms R or other paternal family member chosen by the father (subject to prior written notification to the mother). Thereafter, for a period of four consecutive visits, the father’s time with X is increased to time spent from 10am Saturday to 12pm Sunday each alternate weekend. Thereafter, the father to spend time each alternate weekend from 10am Saturday to 6pm Sunday.

4. The ICL proposes that upon the commencement of the 2016 school year, X spend time with her father on alternate weekends from 10am Friday if it is a non-school day and conclude at 6pm Monday if it is a non-school day. The ICL also proposes that commencing term 3 school holidays 2015, time spent would be for one half of the school term holiday period and commencing the conclusion of term 4 2015, during the long summer school holiday, on a week about arrangement. Provision is made for special days.  

5. The ICL also proposes various therapeutic orders. In the course of final submissions the mother and father indicated no opposition to these proposed orders. These proposed orders are:

   ·the mother and father attend upon Psychologists nominated by the ICL for counselling in relation to issues raised in the Family Report with the mother and father to obey all lawful directions and recommendations of the Psychologists;

   ·the mother and father do all things necessary to facilitate X attending upon a counsellor as nominated by the ICL for the purposes of supporting X throughout the implementation of these orders, until such time as a counsellor deems such support is no longer necessary. The mother and father are to obey all lawful directions and recommendations of the counsellor;

   ·the mother and father do all things necessary to facilitate X attending upon a Psychiatrist as nominated by the ICL for the purposes of diagnosis and treatment of any disorder, including but not limited to Post-Traumatic Stress Disorder. The mother and father to engage with the Psychiatrist as recommended by the Psychiatrist and obey all lawful directions and recommendations of the Psychiatrist;

   ·the mother be restrained from permitting X to attend further upon Dr J.

Mother’s case

1. The mother’s case is that the father cannot be trusted to provide a safe and secure environment in which to spend time with and care for X, other than during the daytime because:

   ·of his history of family violence which is ongoing;

   ·of his lengthy criminal history, commencing at the age of 18 and into his 40s involving some 18 separate Court appearances. The outcome of these include two community-based orders, an intensive correction order and two prison sentences. She maintains that, notwithstanding various behavioural change programmes he has engaged in as part of the sentencing, he has not and will not change his behaviour. She also alleges that his family have a criminal background;

   ·X has been subject to abuse and neglect whilst in her father’s care, including being locked outside at night and malnutrition;

   ·the violent and terrifying incident X was exposed to on 26 December 2012, where the father was stabbed by his son, Y, demonstrates his incapacity to provide X with a secure and safe environment whilst she is in his care;

   ·the diagnosis by X’s medical practitioners that she has suffered Post Traumatic Stress Disorder as a consequence of this incident;

   ·the ongoing effects on X as a consequence of being exposed to this violent incident;

   ·his various volatile and alcohol affected relationships post separation to which X was exposed.

Father’s case

1. The father denies the family violence alleged by the mother both during and post separation. Indeed, he maintains that it was the mother who engaged in family violence towards him when she was alcohol affected. He denies that he engaged in any family violence towards the mother post separation. He argues that the consent parenting orders, which provided for him to spend time with X on each alternate weekend from after school to Sunday, were working well for X until the events of 26 December 2012.

2. The father says that the incident of 26 December 2012 was a one-off incident, that X slept through the incident and was not exposed to it and that he has not seen Y since that time.

3. He says that he has formed a stable relationship with Ms R, who now lives with him. He maintains that his time spent with X since mid-2013 at Boyd House has proceeded very well, that she does not display any fear or concern about spending time with him and that X has told the family consultant that she wants to spend more time with him.

Materials before the Court

1. The mother relied on the following:

   ·her affidavit filed 11 July 2014;

   ·affidavit of Dr J filed 5 February 2014;

   ·affidavit of Dr D filed 6 February 2014;

   ·affidavits of Ms V, Boyd House Children’s Contact Service filed on 3 February 2014 and 21 July 2014;

   ·exhibit M1 – correspondence from Dr D to mother’s solicitors dated 21 August 2013;

   ·exhibit M2 – Department of Human Services, case notes by Ms M, 29 September 2011;

   ·exhibit M3 – statement by Mr Woodward to Victoria Police dated 31 December 2012;

   ·exhibit M4 – statement of Y to Victoria Police dated 22 January 2013;

   ·exhibit M5 – statement of Mr J, Senior Constable, Victoria Police made 22 February 2013;

   ·exhibit M6 – transcript “000” call made by Mr Woodward on 26 December 2012;

   ·exhibit M7 – LEAP – Victoria Police incident summary reports and criminal record (Mr Woodward);

   ·exhibit M8 – bundle of photographs from Victoria police CIU file in relation to incident on 26 December 2012;

   ·the Family Reports of Mr T dated 2 December 2010 and 9 August 2013.

2. The mother, Dr D and Dr J were cross-examined.

3. The father relied on the following:

   ·his affidavits filed 16 June 2014, 22 May 2013, 15 March 2013; and

   ·Family Report of Mr T dated 9 August 2013.

4. The father was cross-examined.

5. The ICL relied on the following:

   ·affidavits of Ms V, Boyd House Children’s Contact Centre filed on 3 February 2014 and 21 July 2014;

   ·Family Report of Mr T dated 9 August 2013;

   ·exhibit ICL1 – LEAP Victoria Police incident report, 30 December 2009;

   ·exhibit ICL2 – LEAP Victoria Police incident report, 14 January 2009;

   ·exhibit ICL3 – mother’s hand written notes contained in Dr J’s clinical records.

6. Mr T was cross examined.

The evidence

1. The hearing of this parenting dispute occupied 5 days. I do not intend to traverse in detail in this decision through all the oral evidence. Nor do I intend to make findings as to every allegation made by the parents against each other. My focus will be on the evidence in relation to key events which are relevant to the consideration of X’s best interests, the evidence of X’s medical treaters, Dr D and Dr J, the Family Reports of Mr T, (noting that the mother has objections about the way in which he managed the interviews leading to his report dated 9 August 2013), the records of the fathers contact with X at Boyd House and exhibits such as the Victoria police LEAP records and “000” transcript.

2. I formed the view that both parents exaggerate the conduct of the other parent which they maintain has affected that parent’s capacity to securely and safely care for X. Each parent also minimised the contribution and impact of their conduct on X. This exaggeration and minimisation has had an impact on the credibility of the parents. It has made much of their evidence regarding each other and the allegations of each other’s impact on X unreliable.

Family Violence during the relationship

1. There is no dispute that there was family violence during the relationship and that this was as a consequence of alcohol abuse. The mother and father accuse each other of engaging in the violence.

2. I am satisfied that during the relationship both parties consumed alcohol excessively and that this is the context in which the family violence occurred. I find that each party contributed to the family violence, this being a finding open to me on the evidence contained in the Victoria Police LEAP reports regarding incidents on 14 January 2009 and 10 May 2009 (Exhibit ICL2).

29 December 2009 Incident

1. An incident of family violence occurred on 29 December 2009 immediately preceding the parties’ separation. There is no dispute that both parties were drinking. The father says that the mother hit him on the head with a toy containing a battery set causing injuries to his head. The LEAP report dated 30 December 2009 (Exhibit ICL1) records that the incident happened around 11.00pm  to 11.30pm. The report states:

   “visible injuries to Mr Woodward’s face. Mr Woodward has pushed her away in self- defence. She has hit a wall and injured her shoulder. MAS has checked her shoulder.  Nil visible signs of injury but they have taken her to (omitted) Hospital to confirm.  Daughter of both, X, (omitted) 2006,(sic) was present. Both parties alcohol affected. Daughter was asleep when argument took place.  Family violence notice issued with Ms Nixon stated as respondent and Mr Woodward as the AFM”

2. The mother’s injury was diagnosed as a fractured right clavicle. Dr D opined that an injury of this sort was equivalent to falling off a bicycle travelling around 10 to 20 km per hour (T133). The mother was subsequently awarded $11,216.70 compensation by the Victims of Crimes Assistance Tribunal for the injuries suffered as a consequence of this incident.[1] The mother obtained an Intervention Order on 1 February 2010 in relation to this incident which is ongoing.

   [1] Mother’s affidavit filed 11 July 2014, Annexure "N-4".

3. The father’s evidence regarding the mother’s injury is unconvincing. He initially stated that when the mother tried to attack him again “I’ve put my hands up like that. Ms Nixon has fallen down. And we left.” (T312).  He then stated that “I pushed her out of my way so I could go.” His next response was “I pushed Ms Nixon out of the way. There was a wall there. Obviously she has hit the wall, fallen over” (T313). He was evasive in dealing with the inconsistencies in his oral evidence. Clearly the mother’s injuries were significant and would have required some force applied by the father. She may well have been the first to engage in an act of family violence, however, this does not detract from the father’s role in this unpleasant incident of family violence. I am satisfied that this is an example of the father minimising his role in family violence.

4. On the other hand, the mother stated in oral evidence that the father was always the instigator in the domestic violence (T31) and that she “never hit him.” (T32). Clearly the mother is exaggerating the father’s role and minimising her role in the family violence which characterised the parties’ relationship.

Consent Orders 15 December 2010

1. Consent Orders were made on 15 December 2010. In summary, they provided for equal shared parental responsibility, X live with her mother and spend time with her father on alternate weekends and, on a graduated basis, X spend time with her father for half of all school holidays. Changeover was effected at Boyd House Children’s Contact Service (“Boyd House”) and where that contact centre was closed at the (omitted) police station.

2. It is to be noted that these were made notwithstanding the parent’s allegations against each other, many of which remain the same in these proceedings. For example, in the family report prepared by Mr T dated 6 December 2010, the mother alleged that the father was a violent alcoholic who used illicit drugs and has an extensive criminal history. The father alleged that the mother drinks excessively and that her mood was volatile and unpredictable posing a threat to the safety and well-being of X.[2] The report notes that the mother alleges that the father continues to be  abusive at changeover (at [14]). In his evaluation, Mr T observed at [22]:

   22.    The subpoenaed material reveals that both parties have significantly underreported the role of the alcohol consumption in their volatile dysfunctional relationship, and in Mr Woodward’s case he has clearly been evasive and minimising around his criminal record. They have both sought to portray each other in the worst possible light while minimising their own role and behaviours in the difficulties.

   [2] Family Report dated 2 December 2010 at [3] to [4].

3. This observation reflects an ongoing theme in the proceedings leading to the 15 December 2010 Consent Order (See Family Report dated 2 December 2010 at [27]) and the present proceedings. In Mr T’s third Family Report dated 9 August 2013 he observed in his Evaluation (at [27]):

   “27.  …. The allegations and counter allegations repeat the themes and patterns alluded to in the previous report. Both parties are able to present persuasive and plausible responses to the many allegations they level at each other. Their accounts seek to portray each other in the worst possible light while minimising their own shortcomings.”

4. I have made findings in a similar vein earlier in my decision.

5. The mother alleges that at every changeover at (omitted) police station (around 5) she was subjected to verbal abuse by the father outside and sometimes inside the police station.  Her allegations were largely general. When pressed to provide an example, she stated that X was taken outside by a police officer whilst the father was permitted to engage in a tirade of abuse against her in the police station.

6. The father denies that he abused her at changeovers. He says that at every changeover at the police station he would arrive around 15 minutes early and stand next to the police near the bench in the reception area until the mother came to collect X. He says the mother would walk into the police station where he was standing with X next to the bench, take X by the hands and walk straight back out.

7. I have formed the view that the mother is genuinely concerned about being in the presence of the father and has a heightened sense of anxiety in his presence. The mother agreed in cross-examination that she was anxious when she was around or in contact with the father and that her anxiety would affect X (T44).

8. This anxiety of the mother, in my opinion is translated by her into protective concerns regarding X in her father’s care. It seems to me this is the only reasonable explanation for the mother’s reaction to seeing the father in the reception area in Mr T’s rooms prior to the interviews conducted on by 16 July 2013. This interaction is referred to by Mr T in the family report dated 9 August 2013 as follows (at [11] Incident at start of the Interview Process):

   11.    Ms Nixon attended early for the interview the parties crossed over in the waiting room. Ms Nixon was angry about this exposure and tried to shield X behind her legs and out of view of Mr Woodward. She claimed X would be traumatised if exposed to Mr Woodward and her distress was apparent for all to see including X. X looked unaffected by the brief encounter and appeared more concerned about her mother’s reaction. Mr Woodward did not attempt to engage Ms Nixon or X and exited the building without fuss. X displayed no visible sign of distress or anxiety by the brief and unexpected encounter with Mr Woodward.”

9. I have no reason to doubt that Mr T’s observations are correct. I should emphasise here that I am not suggesting that the mother should not have protective concerns about X being in her father’s care, in light of the events which occurred on 26 December 2012 (see below). However, I accept Mr T’s evidence that the mother’s reaction is more likely a reflection of her anxiety about the presence of the father rather than X’s. This is reinforced by Mr T’s record of X’s reaction later that day with her father which reveal a happy and positive interaction between father and daughter without any display of anxiety on X’s part (see below at [93]).

10. I have formed the view that the mother has a tendency to confuse her anxiety about the father with her beliefs about X’s anxiety regarding her father. The mother had difficulty accepting that X told Mr T, at the interviews in July 2013, that she missed her father, that she wanted to spend more time with him and that X was excited about seeing her father (T5, 57 to 54).

11. It is likely, given the level of mutual mistrust, that changeovers at (omitted) police station were stressful for the mother. I do not accept the mother’s allegation that at every changeover at the police station the father was abusive towards her. The mother had available to her to protective instruments which she could have utilised in circumstances where the father was abusive in the way she describes. Firstly, there was the Intervention Order made 1 February 2010 which is still extant. The mother could have made complaints about breaches of this order. Secondly, the Consent Orders made on 15 December 2010 included a non-denigration clause (order 8). Again, if the abuse of her by the father was as the mother alleged, the mother could have made an application claiming contravention of these orders. Despite being legally represented, she did not. Her complaints about the father’s behaviour at changeovers have only emerged following the father’s initiating application for parenting orders in early 2013.

12. Overall, I am satisfied that from early December 2010 up until late December 2012, the parenting orders were operating satisfactorily from X’s point of view.

26 December 2012

1. A great deal of evidence was directed to the events of 29 December 2012 whilst X was in her father’s care pursuant to the 15 December 2010 consent orders. As will become apparent, I am satisfied that X, who was then 4 years and one month old, was exposed to a terrifying and violent fight between her father and her half-brother, Y.

2. The father’s evidence is that an argument developed during the early hours of the evening on 26 December 2012 between him and his son, Y, from an earlier relationship. X went to bed and fell asleep. The fight escalated later in the evening and at some point Y grabbed a knife from the kitchen. The father says he used a vacuum cleaner extension to defend himself against Y’s attacks. At some point the father’s hand was cut by the knife. The father says he managed to make a “000” call for assistance. During the course of this call the father was stabbed on the right hand side of his chest by Y. Y ran off. The father said he held a towel over the wounded area to cover the blood and proceeded to wake X up. He insists that X was asleep all this time. He says X got dressed and they proceeded to wait for an ambulance outside the house. He insists he was wearing a shirt at that time. There is no dispute that X went to the hospital with him. She sat in the front of the ambulance during this trip. It appears that the father contacted his family and one of X’s uncles from the father’s side collected X from the hospital and took her to their place. No-one informed the mother of this incident. She only became aware of it when she collected X from Boyd House the next day, that being the end of the father’s time with X pursuant to the orders.

3. The mother deposes that she was told by X after she collected X from Boyd House on 18 December 2012 that:

   …she had been listening to music in her father’s bed when she heard him and her half-brother Y shouting at each other. She says that she ran to the living room where she saw her father attacking Y with a pipe from a vacuum cleaner, hitting him about the head and face repeatedly, she said that her father then tripped over the vacuum cleaner and fell through the lounge room window. That he came back inside, ran to the kitchen where he grabbed a knife and then ran at Y with it, knocking Y’s glasses from his head before they fell to the floor and rolled about. She said they rolled about for a long time and the next thing she can remember is the ambulance turning up.[3]   

   [3] Mother’s affidavit sworn 28 March 2013 at [15]

4. The father stated in cross examination that X’s knowledge of the events may be due to the fact he and his family discussed these events in front of her. This is an extraordinary piece of evidence, disclosing a complete lack of insight by the father and his family about the impact on a young child from hearing the details of this violent incident.

5. The father made a statement on 31 December 2012 to the police (Father’s Statement) (Exhibit M3) in which he stated as follows:

   ·at around 7:30pm, X and her father were watching television whilst Y was lying on a couch trying to sleep. Y yelled and swore at X telling her to “shut that fucking thing up.” He told Y not to swear at X. Y swore some more, the argument continued and then settled down;

   ·at about 8:30pm he put X to bed, Y was still lying on the couch;

   ·the father went to bed, woke up, saw the light still on, went into the lounge room at which point the father commenced arguing with Y, swearing at him using derogatory terms;

   ·Y walked out to the kitchen with the father following him telling him that he wanted him to leave; Y picked up a steak knife from the kitchen bench, pointed it at the father and started walking towards him. They began to wrestle. The father tried to grab the knife from Y, they wrestled falling on the ground. He received a cut to his right index finger;

   ·the father let go of the knife and returned to the lounge room. He picked up his phone to call the police as he wanted Y removed from the house;

   ·after he informed the “000”  operator he heard Y running down to the lounge room from the hallway yelling at him, waving the knife. The father grabbed a vacuum extension to protect himself as he thought he would be stabbed by Y. Y continued yelling at the father and ran back towards the rear of the house;

   ·he managed to get Y out of the house by letting Y’s dog out. He stood at the doorway with a vacuum extension to prevent Y getting back inside. Y kicked in the window to the lounge room breaking the window, he was on the phone to the “000” operator when Y punched him on the side of the head. He dropped the telephone, he and Y fell to the floor as he was struggling to restrain Y. Y broke free and stabbed the father in the right side of his chest;

   ·Y stood over him and said “Hurry up and die you cunt”;

   ·he informed the “000” operator he had been stabbed and an ambulance was called;

   ·he grabbed a towel and held it against a stab wound in his chest. He then woke X up . He told X he had fallen on glass. Police and ambulance arrived and he was conveyed to the (omitted) Hospital for treatment.

6. A transcript of a “000” call made by the father that night was read into evidence (Exhibit M6).

7. Shortly after the commencement of the call the “000” police call taker states “What’s happened?” To which the father replies “Oh, just someone that smashing windows. Got a knife. Slashed me hand.”

8. The “000” police call taker then clarifies whether the father needs an ambulance and whether Y still has the knife. The father responds that he does and says “Yep. I’ve got a 4-year-old daughter in the house too.”

9. The “000” police call taker asks whether Y is drug or alcohol affected. The father responds “Yeah. On drugs. Now he’s got a couple of knives and a couple of pairs of scissors, and his outside. …..   ….. drive an unregistered vehicle.” There is then recorded the father and son exchanging comments about the son’s phone. The “000” police call taker asks if the father is there to which the father responds “….. he’s stabbed me.” The “000” police call taker attempts to clarify what has happened. The father says twice “He’s just stab me in the chest.” The “000” police call taker attempts to clarify the nature of the father’s injuries. The transcript then records:

   Mr Woodward: …..  …… X. Sorry?

   “000” police call taker: and your last name, Mr Woodward?

   Mr Woodward: sorry?

   “000” police call taker: what’s your last name Mr Woodward?

   Mr Woodward: no, my name is Mr Woodward. X is here.

   “000” police call taker: sorry?

   Mr Woodward: X. Hurry up.

10. The “000” police call taker obtains further details from the father and transfers him to Victoria Police.

11. A statement was made 22 February 2013 by a Senior Constable of police, Mr J, who attended the father’s house at around 11:30pm (Exhibit M4). He states he saw a male with a young girl standing at the end of the driveway. “The male was bare chested, wearing just a pair of blue jeans and was holding a pink towel to the right hand side of his torso.” Senior Constable Mr J stated he approached the male who informed him he had been stabbed in his right side by his son and was using the towel to stem the bleeding from his wound. “He then removed the towel and showed me the wound.”

12. It is clear from the transcript that there was yelling between the father and son, the lounge room window glass smashed, Y ran from the back of the house down the hallway yelling at his father, the father and Y wrestled each other on the floor at least twice. I do not accept, even if X’s bedroom was located at the back of the house, that she was not woken by the noise emanating from the father and son’s fight. It is more likely that she woke up and observed the fighting. I am satisfied that the reference in the “000” transcript to “X” occurred when the father noticed X standing nearby. The mother’s affidavit deposing to X’s account of the fight that evening was made before the mother had the benefit of subpoenaed documents now before the Court. There is no suggestion that the father or members of his family informed the mother of the details of this fight. The reasonable inference is that the details deposed to by the mother could only have come from X.

13. The father minimised the effect of this experience on X. In cross-examination the father was asked by Counsel for the ICL how this might have affected X at (T395 to 396):

    So could you tell the court in your own words what impact do you say that incident must have had on X?... I would say that X would have been upset about the incident. I’m positive she didn’t see it, but she still would have been upset – upset about the incident

    That’s it? Upset?--- Well, she would have been very upset. Very confused to what – what had gone on.

    Tell me this, Mr Woodward. When this was happening to you, were you upset--- of course I was upset, but I was more probably scared and---

    Scared. What else? What was going through your mind when according to your evidence, this man – sadly your son – you thought you were going to be killed?--- Was probably – well, I was terrified.

    Well, keep going. What else?--- I was terrified. I was hurt, panicking. It’s hard to describe how I---

    No. We have got all the time in the world. Just describe?--- Well, I was terrified I was going to be killed.

    Yes. And what feeling did that invoke in you?--- Panic.

    And you had all those feelings, and you tell her Honour today that the impact that X must have had was she was upset?--- No. Well, I am---

    Are you seriously saying---?--- I’m presuming--

    --- that’s all X would have felt?--- X would have been feeling the same as me.

14. It is apparent to me, that until this cross examination by Counsel for the ICL, the father had not turned his mind to nor comprehended the impact on his very young daughter of what happened on that night.

15. The father says that he did not inform the mother about the incident as he believed that DHS would do so (T241). This is unacceptable behaviour by the father. In my opinion, given his tendency to minimise violent and criminal behaviour he was more likely to be avoiding informing the mother. This was selfish behaviour on his part and indicates a complete lack of focus on the needs of X.

1. The mother, upon being told by X about these horrific events, reacted in an appropriate protective manner and suspended X’s time spent with her father. She also took steps to engage X in therapy to deal with these events and sought the medical guidance of her and X’s general practitioner, Dr D who then referred X to Dr J.

2. The mother’s evidence is that following this incident, X commenced having nightmares, irritability, insomnia and daytime wetting (enuresis) and bedwetting.

Father’s time with X from 2013

1. On 15 March 2013 the father filed a contravention application. On 2 April 2013 the mother filed an initiating application seeking new parenting orders. The two proceedings were consolidated. The father withdrew his contravention application. An Independent Children’s Lawyer (“ICL”) was appointed to represent X’s interests and an order made for the preparation of an updated Family Report by Mr T. Mr T’s report was dated 9 August 2013.

2. Interim consent orders were made on 4 September 2014, which provided, inter alia, for the father to spend supervised time with X at Boyd House. He commenced spending time with X at Boyd House on 10 November 2014.

3. Ms V, Team Leader at Boyd House filed two affidavits regarding the father’s time spent with X.

4. Having read these affidavits, I am satisfied that X’s time with her father has progressed without incident and generally discloses appropriate, happy and warm interactions between father and daughter. The reports also disclose that both the mother and father have behaved appropriately at Boyd House.

Expert Evidence

Dr D

1. Dr D is both the mother’s and X’s general practitioner. He holds a Masters in Psychiatry. At trial X had attended him on 52 occasions commencing 4 May 2010 when X was two years old.

2. Dr D  diagnosis of the mother was:

   ·     Depression in remission; and

   ·     Chronic generalised anxiety disorder for which she takes medication ongoing.

3. He stated that up until 2010 she was a chronic binge drinker but was satisfied that this was presently under control.

4. Dr D provided a report dated 4 February 2014.[4] In his report he stated that X’s attendance on him was significantly in excess of the number of visits expected for a child of this age. He stated that over 50 per cent of the visits have been in relation to the domestic violence she witnessed in the past. He reported that X had presented over this time (since early 2010) the following symptoms: irritability, bedwetting, daytime wetting, refusal to sleep in her room alone, night terrors, nightmares, vomiting and nausea post and pre-access visits, insomnia and withdrawal from social interaction. He opined that these symptoms were consistent with the following diagnosis in children: Post Traumatic Stress Disorder, Depression. He reported that these symptoms became dramatically worse and needed intensive treatment after the incident on 26 December 2012.

   [4] Affidavit of Dr D filed 6 February 2014.

5. He said that when X attended on him, his practice was to discuss the issues affecting the mother and her concerns about X, including the impact on X of her contact with the father, with X present in the consulting room (T15, T143). He has never spoken to the father. He agreed that in the early stages he was reliant on what the mother told him validated against his observations of X (T140).

6. In his affidavit Dr D deposed that from February 2013 to July 2013 much of X’s distress flowing from her exposure to the 26 December 2012 incident had been receding and she was sleeping better and interacting more normally with others. Following the interview with the family consultant, Mr T, the mother reported to Dr D, with X present in the consulting room, that since their visit to Melbourne X had been wetting her bed, not sleeping and experiencing abdominal pains (T166).

7. In his report Dr D described X having been involved in a “forced interview with her father involving the social worker Mr T, on or about 29 July 2013.” This description of the interview process was obtained from the mother. It is clearly not true. The child was not forced into an interview with her father. The reliance by Dr D on the mother for the reporting of X’s symptoms and matters affecting X, is of concern. It appears that the mother is not necessarily a reliable source of information regarding X’s experiences with her father.  

8. Dr D agreed that the environment in which X lives is one where the mother, as she reported to Dr D, hates the father and where X is well aware of the conflict between the two parents (T167).

9. He stated that on 12 June 2014, X’s symptoms (night terrors and bedwetting) had resolved and that X was happy. He asked her whether she wished to visit her father in Melbourne and she responded “No.” He stated the record of X’s time with the father at Boyd House contained in the affidavits of Ms V is inconsistent with his observations (T149). He said he was unaware, until he read correspondence from Dr J to himself dated 7 April 2014 that X was thoroughly enjoying her time with her father at Boyd House (T167-168).

Dr J

1. Dr J is a qualified clinical psychologist specialising in child and adolescent psychology.

2. X was initially referred to Dr J by Dr M, Paediatrician and commenced attending on him on 6 February 2012 as a consequence of her reaction to her maternal grandfather’s death.

3. Dr J prepared a report dated 28 January 2014.[5] In his report he stated at [1]:

   “……….. X had presented to Dr M’s rooms with problems of night terrors and bedwetting which had become more frequent following her maternal grandfather’s death, and “against a disrupted social history which seems to have a strong impact on her behaviour. Her parents were separated in 2010 due to severe domestic violence. ”

   [5] Affidavit of  Dr J filed 5 February 2014.

4. At the first meeting he says he obtained an extensive family history (including the domestic violence during the relationship) as well as the developmental history of X. He said that, because of X’s young age, this was provided by the mother. The mother informed him that she had been the victim of domestic violence during the relationship. He stated that X was present during this conversation. He stated that the mother had informed him that X was aware of the domestic violence by her father. He acknowledged that X “was very alert to the conversation” (T185) and “picking up on the conversation.” (T222).

5. He opined that, in circumstances where the child had overheard her mother saying she was a victim of domestic violence at the hands of her father and, where there had not been a subsequent opportunity for the child to see her father and engage with him, it could be quite detrimental as the child would become very apprehensive about engagement with the perpetrator (T223 to T224). Dr J said that the mother had hated the father from the first day he met her and that she was scared of the father (T138).

6. According to Dr J the issues associated with the maternal grandfather’s death were quickly resolved by 24 February 2012. Following the incident on 26 December 2012, on referral from Dr D, X commenced attending on him on 23 January 2013. He stated that the mother had given him a handwritten report of the incident and what had happened since X witnessed the violence.  He stated after that he generally conducted one-on-one sessions with X, with the mother waiting outside the room (T186). He stated that his understanding was that X witnessed the son of the father stab the father during an argument. And that X accompanied the father in the ambulance (T190).

7. There are handwritten notes by the mother regarding X symptoms and reactions following time spent with her father at Boyd House and during the interviews conducted by Mr T in July 2013 contained in Dr J’s clinical notes.

8. Dr J’s clinical notes disclose that the mother informed him that after the incident on 26 December 2012, X had resumed enuresis after school and nightmares. He opined that these symptoms were consistent with post-traumatic stress diagnosis. He opined that X’s current condition was heavily related to the incident on 26 December 2012 superimposed on prior experiences (T190).

9. He diagnosed X as suffering from Post-Traumatic Stress Disorder (PTSD). He stated that the PTSD is still ongoing (T232).

10. Dr J stated that he had not read the report of Mr T dated 9 August 2013. He stated he had been made aware of the contents. When the following extracts from the report were read to Dr J, he agreed that this record of the interaction between the father and X was not consistent with a child who is afraid or traumatised by the father and that it surprised him (T192). The extracts from the report of Mr T were from paragraphs [20] to [21] as follows:

    20.    Mr Woodward entered the room and X sprang from underneath the table to surprise him. There was a robust and affectionate greeting and X gave her picture to Mr Woodward. There was excited catch up news and X stated on more than one occasion her desire to visit Mr Woodward’s home to see the fish. She talked about her dog dying from a tumour on his leg and explained how he had gone to rainbow Hill, which have been a theme in her drawing.

    21.    Mr Woodward directed X various games playing shop with the till and fake money and then with dinosaurs. There was a chatty and relaxed rapport between them. And Mr Woodward displayed a good repertoire of imaginative play. Their interaction was warm and intuitive and X appeared to be basking in her father’s attention. Mr Woodward displayed a quiet and intuitive parenting approach that was measured and supportive in the context of not seeing X for such a long period of time. There was an affectionate goodbye and X reiterated her desire to see Mr Woodward again.

11. He stated that the fact that the record of the supervised time the father has spent with X at Boyd House demonstrates an engagement that is positive and affectionate together with the observations of Mr T of X’s time with the father during the interviews is suggestive that X has not been receiving a consistent message from her mother that the father was bad, dangerous and not to be engaged with (T237).

12. Dr J stated that X did not have major concerns establishing or maintaining a relationship with her father and that when he last saw her she was more than happy to talk about and even make some suggestions as to how those visits could go in the future. He stated, however, that she was adamant she wants to have those visits take place in a safe place. He opined that a safe place was Boyd House or under the supervision outside Boyd House of her uncle and that she would be happy to be with her father at a park or somewhere outside of Boyd House (T199).

13. Dr J stated that it was his opinion that the transition from supervised to unsupervised time should be determined by X (T200).

Family Reports of Mr T

1. Mr T has prepared three family reports in relation to the parties and X. These are dated 2 July 2010, 2 December 2010 and 9 August 2013.

2. In her affidavit the mother was extremely critical, not merely of the content of Mr T’s reports, but Mr T’s behaviour during the interview process in July 2013.  The mother cannot accept the observations made by Mr T of the interaction of X and her father. She also accuses Mr T of being aggressive towards her during the process. I make it clear that I reject these allegations. They were not put to Mr T in cross-examination. In my view they reflect the mother’s unwillingness to acknowledge the role of any professional, other than Dr D and Dr J, with whom she has clearly become aligned, in the future parenting arrangements for X, Further, I accept, in the absence of evidence to the contrary, that the reporting by Mr T of X’s interaction with her father as an accurate record.

3. The mother’s evidence is that before this, when she arrived at the car park near Mr T’s rooms, she got out of the vehicle and observed the father standing directly across the road staring at her. She says she quickly walked up the street holding X in her arms with X facing backwards. She says the father followed her about two metres behind up to the door of the reception area to the rooms.

4. The father stated that he arrived for his interview with Mr T and remained in his car until it was time for him to go in. He said that after his interview he went to a cafe a few shops away from the rooms to await a phone call from Mr T. He says that whilst he was in the cafe he saw X and the mother when they walked past the cafe. He denies following the mother (T241).

5. I am unable to find that the events occurred as the mother says they did. Had the father followed the mother closely behind, with X in her mother’s arms facing backwards, it is more likely than not that X would have arrived in the reception area of Mr T’s rooms agitated and asking about her father. Mr T’s observations were that any agitation on X’s part arose as a consequence of the mother’s anxiety. I have already indicated that I accept Mr T’s evidence on this.

6. Once again it is likely that the mother saw the father standing or waiting somewhere within her eyesight. It is likely also that the father was staring at the mother and X. It is likely this caused her anxiety, together with her anxiety about X attending the interviews with Mr T and being in the general presence of the father. I do not accept that the father stalked the mother as she approached Mr T’s rooms.

7. The mother’s evidence in relation to this incident in the car park was put to Mr T in cross-examination by the mother’s counsel (T417 to 418) :

   Yes.  If you’d known about it, would you have continued with the session on that day?--- My determination to continue on with the session on that day was based on the child’s reaction.

   Yes?--- And, believe me, given the difficulty I had in managing the situation, I would have been more than willing, your Honour, to cancel that assessment at any stage. And, in fact, if the child would have said to me, “I don’t want to see him,” then I would have rung him (the father), because I had him waiting in a cafe some distance away, and said, “you can go. The assessment is over. She (X) doesn’t want to see you.” And I had already primed him that this would probably happen.

8. Mr T’s evidence with respect to the opinions expressed by Dr D and Dr J was that a diagnosis of PTSD needs to be diagnosed by a child and adolescent psychiatrist. He opined that the best place to do that is through a referral to CAMHS.

9. Mr T stated that there were indicators that the mother, even if her narrative regarding the father was not supported by Court findings, had not engaged in significantly alienating behaviour. These indicators were that the mother has facilitated for two and a half years fairly uninterrupted without any difficulties, the parenting arrangements. Further, in his interview with X, there was none of the expected narratives he would have anticipated in the child’s views about the father if the mother had engaged in significantly alienating behaviour (T423).

10. Mr T’s evidence was that his observations of X’s interactions with the father and the material in the school reports was counterintuitive to the reports by the mother and her treating medical practitioners of PTSD symptoms and anxiety (T423).

11. Mr T’s evidence was that if the Court was satisfied that both parents engaged in exaggeration and minimisation, then the focus in future parenting arrangements would necessarily require putting into place arrangements that would enable X to weather the dysfunction of both parents. These safeguards would include having in place treating medical practitioners for X, some level of scrutiny and accountability and reporting through the school.

12. Mr T’s report regarding his interview with X is as follows (at [15] to [19]:

    15.    X separated for interview from Ms Nixon without any sign of anxiety or distress. Her mood and affect were brightened buoyant and she was readily engaged and undefended. X had little understanding about the purpose of the meeting and the writer explained the role in age appropriate terms. X asked if her father was in the building and the writer explained he was waiting at a nearby cafe ready to come if she wanted to meet with him.

    16.    X disclosed that she be missing her father a lot and would be willing to meet him if there was somebody to supervise. However, she would not consent to the meeting without her mother’s permission and stated, “If I was going to see dad today I would have to talk to mum she might not want me to”. The writer asked X how she would like to approach her mother in the waiting in (sic) room or in the office, and she requested the writer to enter into the negotiation with the mother while she waited in the office.

    17.    However, she wanted to complete a picture for her father first to give as a present and the writer sat at the table while she explained what she was drawing. At the conclusion of this exercise X requested the writer put a message on the picture for her and dictated the following, “Rainbow dad miss you lots, love you heaps”. Having completed the picture the writer returned to the waiting room to ask Ms Nixon’s permission.

    18.    Upon informing Ms Nixon of X’s request she became agitated and a negotiation around the issue ensued. Ms Nixon was resistant and wanted to ring Dr J for advice. The writer returned to the office to check on X and to ascertain if she would ask her directly which she consented to do. On returning to the waiting room Ms Nixon was in the process of ringing Dr J. I asked her to terminate the call and come and speak to X in my office.

    19.    Ms Nixon was clearly anxious when entering the room and I explained to X her mother needed to hear the request and check she was ok.  X without any sign of anxiety or hesitation told Ms Nixon she wanted to see her father. After Ms Nixon left the room X became excited and wanted to hide under the table to surprise  Mr Woodward with her picture. There were no signs of anxiety from X about the meeting.

13. The mother says that when she entered Mr T’s room so that X could ask her whether it was okay for her to see her Dad, X had her back to her. The mother says she had to gently turn X around to speak to her. Dr J, when asked about this, stated it was most unusual and that it was indicative of the child who was not comfortable telling her mother she wished to see her father unsupervised (T218). Mr T says he does not recall this detail except that he recalls that X was completely relaxed and enthusiastic.

14. Mr T reports the interaction between the father and X as involving at [21]:

    “a chatty and relaxed rapport between them and Mr Woodward displayed a good repertoire of imaginative play.” Their interaction was warm and intuitive and X appeared to be basking in her father’s attention.”

15. Mr T reported that at the conclusion of his interview with X she reiterated her desire to see Mr Woodward again.

16. In cross-examination, Mr T gave the following evidence regarding X’s request to see her father (T445):

    ------ firstly, I was completely surprised because given the mother’s narrative and the contents of the material, and in light of the terrible altercation between the father and son, I fully anticipated the child to be highly anxious, withdrawn and resistant to – resistant to any contact with the father. The child came into the room. She was responsible for – she asked me, “Where’s dad?” And I explained to that her father was waiting in a cafe for my phone call, and if she wanted to see him I could call him and he could come. She – given what she had been exposed to, she was really buoyant, quite resilient, confident little girl. She is quite a delightful little girl, and she was absolutely adamant that she wanted to see her father, providing she had the permission of the mother.

17. Mr T said that the fact that each parent continued to attribute blame to the other parent for behaviour adversely affecting X detracts them from addressing the issues contributing to their behaviour. He said it is indicative of parents who have a low level of insight into their behaviour and its effect on their daughter. Having considered the evidence and observed the parents during the course of the hearing, I agree with Mr T’s observations.

1. Mr T was questioned by Counsel for the ICL regarding the contrast between the evidence given by Dr D and Dr J regarding X’s reaction to time with her father and her wishes in this respect, with his record of X’s wishes and observations of her time with her father in July 2013. He responded at (T449):

   What do you make of it, Mr T?--- Well, firstly what I made of it, I went to the subpoenaed material, and one of the focuses in my perusal of the subpoenaed material was looking for information of difference that would correlate with my experience of what happened.

   Yes?--- Because I fully expected to be – to encounter the same experience as Dr D and Dr J, and I didn’t. And the most enlightening piece of information that I could see in that was the school reporting. Now, the school see this child five days a week, in a variety of circumstances, some stressful, some recreational, and they report a robust, healthy, happy child that is socially working okay. No sign of regressive behaviours. No sign of any peer relationship difficulties, in fact, to all intents and purposes functioning at a normal level. So, in my report, and I have no doubt – look, I’m not here to do trial by expert. I have the greatest regard for Dr D and Dr J, but it’s my job having seen everybody in this family, to try make sense of some of the idiosyncratic parts of it that don’t accord with the accounts of either party at different times, and, yes, I thought that was very interesting that I’d observed this behaviour and the school was saying they observed it on a daily basis, and these two observations were not indicative of a child who has – had PTSD.

X’s experience at school

1. The mother deposed in her affidavit filed 9 July 2014 at [10] that:

   “X is a bright and happy girl with a good friendship network. Her school report confirms that she is performing at the expected level for her age in all dimensions. I am determined to see her educated to the fullest extent of her abilities. Annexed hereto and marked N 1 is a copy of her school reports for this year.”

2. The school reports do indeed disclose a child who is happy, settled and achieving appropriate milestones. The mother is, of course, to be commended for her commitment to X’s education. The school reports provide objective evidence of a child who, notwithstanding the trauma she suffered in December 2012, is progressing emotionally and intellectually as expected of a child her age.

3. I am satisfied I can infer from this that psychologically X has indeed progressed a long way since the terrifying events in December 2012. This is not to suggest that the way forward should not be approached in a cautious manner focused on providing appropriate therapeutic treatment, safeguards and a level of scrutiny.

Findings

1. Having regard to the evidence I make the following findings:

   a)during their relationship the parents abused alcohol with the consequence that their relationship was chaotic and dysfunctional, involving family violence by each party against the other;

   b)X was exposed to the alcohol abuse and family violence;

   c)the parties separated suddenly (on 29 December 2009) in the context of alcohol fuelled family violence against each other. The mother suffered significant injuries. She obtained an Intervention Order on 1 February 2010 against the father with the mother and X named as affected family members. The Intervention Order is ongoing;

   d)both parents have taken steps, since separation, to control their  alcohol use;

   e)the father has a serious criminal history spanning  1987  to 2009;

   f)the mother has suffered depression which is in remission. She continues to suffer anxiety for which she takes medication;

   g)the parties entered into Consent Orders on 12 December 2012 . The parenting  arrangements under these consent orders were implemented without incident until 26 December 2012;

   h)on 26 December 2012, X witnessed and was exposed to very serious family violence at her father’s home, when her half-brother Y, in the course of a loud and physical argument between the father and Y, stabbed her father;

   i)the incident was without doubt terrifying for X. She suffered the following symptoms in the aftermath; nightmares, irritability, bedwetting,  enuresis and insomnia;

   j)X’s time with her father during interviews conducted by Mr T in August 2013 disclosed a positive and warm relationship between father and daughter;

   k)X’s supervised time with her father at Boyd House over the period from late 2013 to July 2014 has been a positive and happy experience for her;

   l)the mother and father have acted appropriately during the course of X’s supervised time with her father at Boyd House;

   m)the symptoms experienced by X in the first half of 2012 and then in early 2013 and reported by Dr D and Dr J as being associated with Post-Traumatic Stress Disorder and Anxiety, have resolved;

   n)X has settled well at school and is meeting appropriate milestones for a child of her age.

2. Whilst the mother acted appropriately in seeking treatment for X in early 2013, I find that the methodology adopted by both Dr D (X’s general practitioner) and Dr J (X’s clinical psychologist) has not provided an objective framework for the diagnosis and treatment for X. Both medical practitioners have obtained a history from the mother in relation to issues of family violence and other matters affecting X, at times in the presence of the child. Neither medical practitioner have had the benefit of consultation with the father.

3. They have relied on reporting only by the mother of X’s symptoms at key critical points; such as, X’s supervised time with her father at Boyd House and the interview process with Mr T. This is not to suggest that the mother has consciously misled them. However, it is clear on the evidence that the mother’s narrative has not always been accurate. For example, Dr D recorded X was “forced” to see her father at the interviews with Mr T. X was not forced to see her father, she was asked if she wanted to and she said she did provided her mother approved. The provision of wrong information on such a crucial matter is bound to mislead X’s medical practitioners.

4. Dr D and Dr J have only had the input of the mother’s narrative, together with their observations and, as X became older, interactions with her. I am satisfied, therefore, that their opinions and diagnosis are not completely reliable. In particular I do not accept Dr J’s opinion that the decision about when X should spend unsupervised time with her father should be left to X. This appears to me to place on a young girl a significant burden, given her exposure to the mother’s anxiety about her father and the obvious desire of the father to spend time with her. It seems to me that taking this course would only be detrimental to X’s psychological well-being.

APPLICABLE LAW

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. The objects in this context are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   ·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   ·parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   ·parents should agree about the future parenting of their children; and

   ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

6. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

7. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.

9. Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

10. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

S.60CC – Best Interest of the Children

Primary considerations

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

1. I am satisfied that X has a positive and strong relationship with both her parents. This significant relationship with both parents exists notwithstanding the high level of personal conflict. I am satisfied that it would be beneficial for X for this to continue into the future. This is subject to ensuring that X is enabled to feel safe and secure in her father’s care.

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

1. X was exposed to a terrifying incident of family violence on the evening of 26 December 2012. There is no doubt she suffered psychological harm as a consequence of this. I am not prepared to accept the diagnosis of Dr J or Dr D but I accept that X displayed symptoms as a consequence of this harm. I am not satisfied that X continued to display these symptoms to the extent that the mother claims. This is because I have formed the opinion that the mother tends to exaggerate and confuse her anxiety about the father with anxiety she assumes X will suffer.

2. On the other hand, I have found that the father displayed very little insight into the impact of the family violence he was a part of on 26 December 2012 on X. His failure to immediately notify the mother of the incident is to be condemned.  It raises a concern that into the future he may not take appropriate protective action in circumstances where X may be exposed to family violence. I am satisfied that it is necessary, in X’s best interests, that in any future parenting arrangements a protective environment be in place during the initial period X spends with her father.

3. The mother proposes that the father’s time with X only be during the day time. The mother claims that the father cannot be trusted to protect X from family violence, abuse and neglect having regard to his extensive criminal history and his neglect of X when she was in his care and his volatile relationships post separation.

4. The mother submits that having regard to the father’s criminal history from September 1987 and ending in 2009, the Court cannot be satisfied that the father will not engage in criminal activity or engage with persons with a criminal history whilst X’s in his care. The mother also says that even though the father attended various programmes to assist in his rehabilitation, he has not altered his behaviour as evidenced by the fact that he continued to engage in criminal activity and the events of 26 December 2012.

5. The father was extensively cross-examined about his history. It is evident that the father does not recall much of this history. He appeared somewhat defensive in his responses. I am satisfied that he was selective in his reporting to Mr T of the more serious offences (such as possession of a sawn off gun). I agree with the observations of Mr T that the father has a tendency to be evasive and minimise his criminal history. No doubt he is fully aware that the Court may well draw adverse inferences from this.

6. However, the last time the father was charged and convicted for a criminal offence was 2009. The father’s criminal history was generally known when the Consent Orders were made in December 2012. The serious family violence occurred some two years after parenting orders were in effect. This incident did not result in criminal charges being laid against him.

7. The mother says that the father is unable to care for X. She deposes that, on or about 9 November 2011, X returned home very distressed. She told her mother that her father had got angry when she marked the wall and locked her out of the home for the night. She says she responded by sending the father a text. He responded saying that he didn’t care and could do anything he wanted. The father denies this allegation.

8. The mother reported this allegation to Dr D who recorded in his clinical notes (based on what the mother said) on 17 November 2011 that “apparently when visiting father, he locks out at night. Now, she has severe night terrors.”

9. The mother said that she called the police and DHS but there was no follow-up. She did not call her solicitors regarding this matter (T48 to 50).

10. The mother’s allegation, if true, would constitute serious abuse of a child by her father. I cannot accept that DHS failed to investigate this matter and report back to the mother. I would also have expected the mother to take protective action by telephoning her solicitors and receiving advice as to an appropriate way to deal with this matter. I am not satisfied, on the evidence before me, that X was locked out of the house all night. It is more likely than not that she was put outside the home for  a period of time as a disciplinary measure. This is clearly inappropriate parental disciplinary action.

11. The mother deposes that around 14 July 2012, X returned home from a seven-day visit with her father gaunt and pale and said her father had not given her anything to eat for days. The mother deposes that she weighed her and found that her weight had dropped from 19kg to less than 16kg. The mother says that it was the practice of Dr D to weigh X at her visits and in the visit prior to X spending time with her father he had weighed X at 19kg.

12. In his case notes dated 27 July 2012, Dr J recorded “Ms Nixon said X had lost 3 kg in the week she stayed at her father’s. Not eating, because there was little food there. Dr D had weighed X 20 kg before she went away for the week.” (T211 to 212).

13. Dr D said, referring to his case notes that he weighed X on 6 July 2012 and her weight was 20kg. The next time he saw X and weighed her weighed her was 10 August 2012, her weight was recorded as 19kg.

14. The mother says that she contacted DHS but there was no follow-up.

15. I do not accept the mother’s allegation that X lost 3kg over a period of 7 days when in her father’s care. This is because Dr D’s evidence (based on his clinical records) is contrary to the mother’s evidence.

16. The mother has also deposed that the father has, post separation engaged in volatile relationships with women. She deposes that X has reported, “on literally dozens of occasions being terrified and traumatised saying that she is either witness to fights between Ms B and Ms T or had witnessed her father beating up either Ms B or Ms T.”[6]

    [6] Mother’s affidavit sworn 28 March 2013 at [31].

17. I accept that X may well have witnessed fights, in the context of alcohol abuse, between her father and Ms T. This is because the LEAP police incident summary reports disclose Ms T to be significantly alcohol affected at home and having engaged in aggressive behaviour towards the father. I do not accept, however, that X has witnessed her father beating up either Ms B or Ms T. These are serious allegations and in the absence of supporting police records, I am not prepared to accept they have any basis in reality. In any event the father has now re-partnered with Ms R. There is no evidence before the Court that Ms R engages in substance or alcohol abuse or that there have been incidents of family violence between the father and Ms R.

18. I am not satisfied that X would be at risk of exposure to violence or neglect whilst in her father’s care if she were to spend overnight time with him. I am satisfied, however, that the time X spends with her father away from any contact centre will need to take place in an environment which will be safe and which X will experience as safe. Her contact with her father must also occur in a framework designed to ensure she is protected and monitored for a period of time.

Additional considerations

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. X is 7 years old. The evidence shows that she is a happy, delightful child who is settled at her school, engages socially and is achieving all her appropriate milestones intellectually. She has made it clear to both Dr J and to Mr T that she wants to spend more time with her father provided that she can do so in a way that she feels safe.

2. I am satisfied that the Court should give weight to X’s views in this regard.

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

1. X has a close and loving relationship with her mother. This naturally follows from the fact that the mother has been her primary caregiver for all of her young life. There is evidence that X is reliant on obtaining her mother’s support when it comes to the issue of time with her father. I have made findings regarding the mother’s anxiety with respect to the father and the impact of this on X. The mother needs to be mindful of the impact of her anxiety on X. I have no doubt that she is committed to dealing with her issues as she has accepted the ICL’s recommendation that she attend counselling in this regard.

1. I am satisfied that the father also has a loving and warm rapport with his daughter. He has, however, shown a tendency to minimise the effect of his behaviour on X. He needs to develop far more sensitivity and insight in relation to the impact of the serious family violence between him and his son, Y, on X.

2. The father has re-partnered with Ms R. At hearing they have been in a relationship for around 12 months and are cohabitating. Ms R is 51 years of age and has 2 children, aged 23 and 26 years. There is no evidence to suggest that Ms R has any substance or alcohol abuse issues. To the contrary it appears that the parties accept that Ms R is a responsible person. X has not yet met Ms R.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child

1. The mother complains that the father has taken no interest in X’s schooling and has failed to communicate with her school and obtain reports and other information the school may send to parents. On the other hand the mother, unilaterally decided to change X’s school in mid - 2014. The effect of this was to preclude the father from being involved in a long term issue affecting X.

2. I am satisfied that whilst the parenting orders were in effect from 2010 to 2012, the father took the time available to spend and communicate with his daughter.

3. From early 2013, the father’s time with X was suspended. I am satisfied that by reason of initiating legal proceedings and compliance with consent orders the father has taken appropriate steps to spend time and communicate with X.

4. I am satisfied that this is not a factor which the Court needs to consider or give weight to.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child

1. Given the parenting arrangements which applied from 2010 to 2012 as well as the cessation of time spent by the father since 2013, other than time at a contact centre, there can be little doubt that it is the mother who has been predominantly responsible for the maintenance of X. The father pays child support to X. He says it comes straight out of his wages.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living

1. The circumstances in this case are that parenting orders have been suspended as a consequence of serious family violence witnessed by the child. The issue before the Court is what parenting arrangements should be put in place into the future to enable X to benefit from a meaningful relationship with her father whilst ensuring that she is safe and emotionally able to manage a gradual transition in time spent with him unsupervised. The Court must weigh the likely effect of changes in X’s present circumstances, which are that she spends supervised time with her father at a contact centre, to spending unsupervised time. The mother proposes that the unsupervised time occur only during the day. The father and the ICL proposes that the unsupervised time progress to overnight time with her father.

2. The effect of this change in X’s circumstances must be considered in the context where she has been exposed to very serious and frightening family violence between her father and her half-brother, Y. The Court must also have regard to the objective evidence regarding X’s progress since that incident (in December 2012).

3. There is no doubt in my mind that to ensure X’s sense of emotional and psychological well-being is protected whilst facilitating time with her father, the following must be built into any orders:

   a)supervised time away from the contact centre and the father’s home;

   b)unsupervised time increasing gradually;

   c)an independent counsellor acting as a support person for X;

   d)assessment of and treatment for X by a qualified specialised psychiatrist for any disorder; and

   e)monitoring of the implementation of the orders for a period of time.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. I am satisfied that this is not a factor which arises in this case. It is true that the father and mother live some distance away from each other but this has not and will not preclude X spending weekend time and school holiday time with her father.

Section 60CC(3)(f) – the capacity of each of the child‘s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The mother has been persistently critical in her affidavit material about the father’s capacity to properly care for X as has the father of the mother’s capacity.

2. The criticisms have been unsubstantiated save for the events on 26 December 2012. I am satisfied that the parenting arrangements under the Consent Orders made in 2010 proceeded largely without incident.

3. I have already referred to the fact that both parents have issues which they must deal with if they are to parent in a manner that is in X’s best interests. Both parents accept this having agreed to attend on counselling.   

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. The evidence relevant to this consideration has already been dealt with.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant factor in this case.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The evidence relevant to this consideration has already been dealt with.

Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter

1. I have considered and made findings in relation to these factors earlier in this decision.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. The nature of family law orders is that they are prospective and therefore subject to changes in circumstances of the child or either of the parents and the usual vicissitudes of life.  

2. It is no doubt preferable for the Court to make orders that are least likely to lead to the institution of further proceedings in relation to the children. In these proceedings, this consideration is significant given the fact that X has been exposed, unfairly and without regard to her emotional needs, to the conflict between the parents. It is in X’s best interests that the litigation and conflict between the parents cease. This will be largely up to the parents.

3. In considering the proposals of the parties against the matters specified in s.60CC, the issues which have arisen and which impact on the making of orders which are least likely to result in further litigation are:

   ·the desirability of framing orders which will enable X to spend time progressively with her father in an environment which is safe and which she will experience as safe;

   ·independent support structures for X;

   ·monitoring of the implementation of parenting orders for a suitable period of time.

Section 60CC(3)(m) -any other fact or circumstance that the Court thinks is relevant.

1. There are no other facts or circumstances that the Court thinks is relevant. 

Section 61DA(1) – Equal Shared Parental Responsibility

1. S.61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. However, there are exceptions incorporated into the relevant provision.

2. S.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.

3. The mother claims that at changeovers at (omitted) police station during 2010 to 2012, she was subjected to verbal abuse by the father, sometimes in the presence of X. I have earlier rejected the mother’s claim.

4. I am satisfied that X was exposed to family violence at the father’s home when she witnessed a violent fight between her father and her half-brother. And has also been exposed to family violence when the mother and father resided together engaged in by both parties.

5. Consequently the presumption does not apply.  I now turn to consider whether the evidence is in favour or against the parents having equal shared parental responsibilities in relation to the major long-term issues affecting X’s life.

6. S.65DAC provides that, if two or more persons are to share responsibility for a child the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

7. In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:

   “‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”

8. The father says that he wishes to be involved in decisions regarding X’s education and health (T372). His evidence is that he and the mother have had civil conversations regarding X. He gives an example when the (omitted) fires were burning in early 2014, he and the mother had a civil conversation regarding whether it was safe for the mother to travel with X to Melbourne for the purpose of a scheduled supervised time at Boyd House (T373).

9. The mother’s evidence is that the parties are unable to conduct a civil conversation regarding issues affecting X. She deposes that the last time the parties had a civil conversation was before the father assaulted her on 29 December 2009. The mother says that when she texts the father regarding X, he fails to respond. The father says he always responds. In submissions the mother stated that communication with the father incapacitates her and that she believes he will use the opportunity to harass and terrorise her. It seems to me that the mother has been under the misguided impression that equal shared responsibility obliged the parents to consult about all issues, including day to day issues. This is not the case. It imposes an obligation to consult and attempt to reach agreement on major long term issues. In X’s case, these are her education and health.

10. The reports provided by Boyd House disclose that by mutual agreement, both the mother and father, decided not to go ahead with the contact visit scheduled on 16 February 2014 because of the (omitted) fires. This is an example where the parents have been able to co-operate in the interests of X.

11. It concerns me that the first time the father was only made aware that X had been diagnosed as suffering from PTSD was at the commencement of these proceedings. The fact that I have been critical of the father’s lack of insight about the impact of the events of 26 December 2012 on X, does not detract from the obvious fact that X’s progress in dealing with the horrific events she witnessed, would have been assisted by the father’s involvement in the therapeutic process. I do not accept the mother’s accusations that the fault lies with the father as he has made no attempt to contact Dr D or Dr J. I formed the view, listening to the evidence of Dr D and Dr J, that they held a very low opinion of the father and the chances of an appropriate relationship forming between the father and them, for the purpose of X’s therapeutic treatment, were very low indeed.

12. I am satisfied that, notwithstanding their personal conflict, the parents are able to communicate in relation to long-term issues affecting the child. I accept that communication will be a difficult process between the parents given their history. However I am confident that they will be able to communicate in relation to education and health issues as they affect X. They have already demonstrated a capacity to act co-operatively in relation to X’s health. They have in these proceedings consented to orders proposed by the ICL which involve both of them committing to participating in therapeutic treatment to assist X (and themselves) in the future implementation of parenting arrangements.

13. I am therefore satisfied that it is appropriate to make an order for equal shared parental responsibility.

Section 65DAA (1)

1. As I have determined that an order for equal shared parental responsibility is appropriate, I am now required to consider whether an order for X to spend equal time with her parents is both in the X’s best interests and reasonably practicable.

2. The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in MRR & GR[7]  where the Court said:

   “Each of subsections 1(b) and 2(d) of section 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Subsection (5) provides in that respect that the Court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the Court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.”

   [7] [2010] HCA 4

3. The High Court went on to say that s.65DAA(1) and (2) are expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.

4. Section 65DAA(5) provides that the Court must have regard to particular matters in determining whether it is reasonably practical for a child to spend equal time or substantial and significant time with each of the parents. These matters are specified as:

   “…

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the Court considers relevant.”

5. S.65DAA(4) of the Act stipulates that:

   “Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”

6. I find that it is not in X’s best interest to spend equal time with her parents. In the circumstances, X’s best interests are served only by a gradual increase in the time the father spends with her and with the time to be supervised for a sufficient period that will enable X to feel safe and secure under his care.

7. Further, it is not reasonably practicable for X to spend equal time with each parent. In my opinion, the parents presently lack the capacity to effectively communicate and resolve the difficulties that might arise in relation to the implementation of the parenting arrangements. I am satisfied that this circumstance will persist for at least the medium term future.

8. There is no dispute that X should continue to reside with her mother. I am satisfied that this is in X’s best interests.

Section 65DAA(2)

1. I now turn to consider whether the children spending “substantial and significant time” with each parent is both in the children’s best interests and reasonably practicable.

2. Section 65DAA(3) provides that a child is taken to have spent substantial and significant time with a parent when the time spent includes weekend and holiday time, days that do not fall on the weekend or holidays and enable the parent to be involved in the child’s daily routine and significant events.

3. X has never spent substantial and significant time with her father. The consent orders made on 15 December 2010 provide for the father to spend time with X on alternate weekends and during school holidays. The ICL and father’s proposals ultimately provide, subject to her time with her father proceeding smoothly, for the father to spend alternate weekends with X and half school holidays.

4. In circumstances where the parties lived within a reasonable distance from each other and X’s school was within a reasonable distance from her father’s home, I would have been satisfied that it was appropriate, over the long term , for X to spend time with her father on days not falling on weekends, public holidays or school holidays. However, the mother lives in (omitted), X is attending a school in that region and the father lives in Melbourne. It is clearly not practical for X to spend substantial and significant time with her father.

5. I am not satisfied that the orders proposed by the mother are in the best interests of X. X is 7 years old and, provided her time with her father proceeds on a graduated fashion enabling her to feel safe and secure in her father’s care and she is provided therapeutic support in this, her best interests will be served by her ultimately spending overnight time with her father.

6. The father’s orders do not, in my opinion, provide X with sufficient time to develop a sense of safety and security in her father’s care. Both Dr J and Mr T recommended a gradual increase in time spent in an environment in which X will feel safe. The evidence discloses that X’s sense of comfort about spending time with her father will be affected by the mother’s anxiety about whether X will be safe in her father’s care. Clearly, the success of X’s time with her father will be dependent upon the mother developing confidence about X’s safety in his care. A more gradual progression of time spent by the father with X will assist this.

1. I am satisfied that the ICL’s proposed parenting orders provide an appropriate graduation in time spent by the father with X.

2. The ICL’s proposed parenting orders provide that X’s time with her father for the first 12 visits each alternate Sunday be supervised, first by a member of the mother’s family and, in the next 6 visits, by the father’s partner, Ms R. Counsel for the ICL stated that she had spoken to Ms R and that she understood her obligations in this regard.

3. The ICL’s proposed parenting orders provide that changeover occur at the Boyd House Children’s Contact Service for a period of 12 months and thereafter at McDonald’s in (omitted). This is a sensible proposal which will address the mother’s anxiety regarding being in the presence of the father at changeover. I would anticipate that after a period of 12 months the parties will be in a position to undertake changeover at a place such as McDonald’s.

4. The ICL also includes a restraint on the mother from permitting X to attend further upon Dr J.  Although somewhat unusual, I am satisfied given my findings regarding Dr J’s methodology and the consequent lack of independent framework, that X’s time attendance on him should cease. Under the orders X will be referred to an appropriately qualified and specialised Child Psychiatrist for the diagnosis and treatment of any disorder.

5. The mother proposes that until things settle down communication between the parties be by text. The ICL proposes a communication book. I am satisfied that a communication book would be helpful. I am also prepared, taking into account the mother’s anxiety about the father, that for a period of 6 months communication outside the communication book be by text and that this communication be respectful and courteous.

6. Both parents need to do some work themselves. They need to address the issues which have affected their behaviour in the past. They need to develop an appreciation of the impact their ongoing conflict, mistrust and blame of each other, has on X. They should both take steps in the interest of X, to attend on counselling which will enable them to move on from this behaviour that has characterised their post separation relationship. I am satisfied that the inclusion of orders that both parents attend separate Psychologists appointed by the ICL is appropriate in the circumstances.

7. The ICL’s proposed orders also provide for X to attend upon a Child Psychiatrist appointed by the ICL for the purpose of diagnosis and treatment of any disorder, including but not limited to PTSD. The parents are obliged to do all things necessary to facilitate this and to engage with a Psychiatrist and obey all lawful directions and recommendations of the Psychiatrist. The parents do not oppose this order and I am satisfied that it is in the best interests of X.

8. The ICL’s proposed orders also provide for X to attend upon a counsellor nominated by the ICL for the purpose of supporting X throughout the parent’s implementation of these orders until such time as a counsellor deems such support is no longer necessary. This order requires that the parents do all things necessary to facilitate X attending upon this counsellor and to obey all lawful directions and recommendations of the counsellor. The parents do not oppose this order and I am satisfied that it is in the best interests of X.

9. The orders also provide that the ICL be discharged 6 months after the date of the order. I am satisfied in the circumstances of this case that the ICL should have an ongoing role for a period of 6 months. This will provide a suitable monitoring of the implementation of the parenting orders, including how they are impacting on X’s psychological well-being.

Conclusion

1. For the reasons set out in this judgement I make the orders.

I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 10 October 2014