PALMETER & KAGAN
[2019] FCCA 2298
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALMETER & KAGAN | [2019] FCCA 2298 |
| Catchwords: FAMILY LAW – Parenting – allegations of inappropriate behaviour of the Father – where no evidence to support allegation – where the Mother is unable to support Child’s relationship with the Father but the reverse is true. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR PALMETER |
| Respondent: | MS KAGAN |
| File Number: | WOC 21 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 29 July - 1 August 2019 |
| Date of Last Submission: | 13 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
Subject to Order 2 herein, the Father have sole parental responsibility for the Child X born … 2013 (“the Child”) in relation to the care, welfare and development of a long term-nature involving the Child.
For the purpose of Order 1 and except in the event of an emergency, before making any decisions about long-term issues in relation to the Child, the Father will consult with the mother as follows:-
(a)Advise the Mother in writing not less than twenty-eight (28) days in advance of any decision on long-term issues in relation to the Child proposed to be made by the Father;
(b)Provide the Mother with all relevant information relating to the long-term issue which is in the possession of the Father;
(c)Provide any necessary authorities to enable the Mother to obtain any additional information from any relevant health or educational institution;
(d)Give consideration to any response from the Mother before making a decision; and
(e)Inform the Mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
The Child live with the Father forthwith.
Commencing on the fourth weekend of NSW school term 1 2020, the Child spend time with the Mother as follows:-
(a)Each alternate weekend from the conclusion of school (or 3.00pm if not a school day) Friday to before school (or 9.00am if not a school day).
(b)In each odd numbered year, during the NSW School holiday terms 1, 2 and 3 from the conclusion of school on the last day of school term until 3.00pm on the middle Saturday or as otherwise agreed in writing.
(c)In 2020 and each even year thereafter, during the NSW School holiday terms 1, 2 and 3 from 3.00pm on the middle Saturday until the commencement of school on the first day of the school term or as otherwise agreed in writing.
(d)In each odd numbered year commencing from 2021, during the Christmas School holiday period from the conclusion of school on the last day of the school term until 3.00pm on 2 January or as otherwise agreed in writing.
(e)In 2020 and each even year thereafter, during the Christmas School holiday period from 3.00pm, 2 January until the commencement of school on the first day of the school term or as otherwise agreed in writing.
Commencing on the fourth weekend of NSW school term 1 2020, the Child spend time with the parents on special occasions as agreed in writing, but failing agreement as follows:-
(a)On the Child's birthday;
(i)If the Child's birthday falls on a non-school day, with the parent who the Child is not living or spending time with from 9.00am until 2.00pm.
(ii)If the Child's birthday falls on a school day, with the parent who the Child is not living or spending time with from the conclusion of school until 6.00pm.
(b)On the parent's birthday;
(i)If the parent's birthday falls on a non-school day; with that parent from 9.00am until 5.00pm.
(ii)If the parent's birthday falls on a school day; with the parent from after school until 7.00pm.
(c)With the Father on Father's Day from 9.00am until the commencement of school on Monday.
(d)With the Mother on Mother's Day from 9.00am until the commencement of school on Monday.
(e)At Christmas:
(i)In odd numbered years with the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(ii)In even numbered years with the Father from 3.00pm Christmas Day until 3.00pm Boxing Day.
(iii)In even numbered years with the Mother from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(iv)In odd numbered years commencing from 2021 with the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
(f)At Easter when Easter falls outside of NSW School Holidays:
(i)In even numbered years with the Father from the conclusion of school on Thursday (3.00pm if non-school day) until 3.00pm on Easter Saturday.
(ii)In odd numbered years with the Father from 3.00pm Easter Saturday until the commencement of school on the following Tuesday (or 9.00am if a non-school day).
(iii)In odd numbered years with the Mother from the conclusion of school on Thursday (3.00pm if non-school day) until 3.00pm on Easter Saturday.
(iv)In even numbered years with the Mother from 3.00pm Easter Saturday until the commencement of school on the following Tuesday (or 9.00am if a non-school day).
Pursuant to s.68B of the Family Law Act 1975 and for a period of 6 months, the Mother be restrained from approaching or coming within 100 metres of any place where the Child might reside from time to time.
Pursuant to s.68B of the Family Law Act 1975 and for a period of 6 months, the Mother be restrained from approaching or coming within 100 metres of any place where the Child attends school, except strictly in accordance with these Orders.
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:-
(a)Any medical problems or illnesses suffered by the Child.
(b)Any medication that has been prescribed to the Child that needs to be taken while the Child is in the care of the other parent.
(c)Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the Child.
(d)Any sporting, social, school or religious functions which the Child is to attend.
(e)The residential address of the parent.
(f)The telephone contact number of the parent.
(g)Any other matter relevant to the welfare of the Child.
Each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child.
Each of the parents are to be permitted to liaise directly with the Child's school(s) and sporting bodies to obtain any necessary information about the Child's progress and that both parents are to authorise the schools and sporting bodies to facilitate this.
Both parents are to provide the necessary authorities to the principal of each school attended by the Child to ensure that the school forwards to both parents copies of the Child's school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
Subject to Order (7) above, both parents are permitted to attend school activities that parents would otherwise normally be invited to attend and both parents be restrained from approaching each other at such activities.
Changeover is to occur at the Child's school and where changeover does not take place at the Child's school, changeover should take place at the Paternal Grandmother's home with the Mother to remain inside her motor vehicle and the Father to remain inside the Paternal Grandmother's home and be restrained from approaching the Mother's motor vehicle.
The Mother and Father are to communicate using the OurFamilyWizard App or by other such App as agreed in writing unless in an emergency when they will communicate by way of mobile telephone.
The parties be restrained from discussing these proceedings or any aspect of them and from making critical or derogatory remarks about each other or members of each other's family in the presence of the Child and the parties are to do all things reasonably necessary to ensure that no other person discusses these proceedings or any aspect of them and from making any critical or derogatory remarks about either parent or members of their family in the Child's presence.
The Father attend upon his General Practitioner to obtain a referral for the Father to attend upon an appropriately qualified psychologist to obtain strategies and assistance to assist the Father facilitate the Child adjust to the change in living arrangements.
Within 7 days of the Orders the Mother is to provide the Child's full medical history to the Father.
The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children's Lawyer in these proceedings for a period of 12 months.
For a period of 12 months, the Father undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.
For a period of 12 months, on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the party directly, the Father attend upon his respective treating general practitioner(s) to obtain a referral to undertake a Carbohydrate Deficient Transferrin (“CDT”) test noting that the CDT test is to be analysed using the High Performance Liquid Chromatography analysis method. Within 24 hours of receiving the test results, the Father cause a copy of the results to be sent to the other party and the Independent Children’s Lawyer.
The Father pay for the costs associated with the testing required of him by Orders 19 – 20 above.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 24 hours’ notice by application to the Court in Chambers in relation to the enforcement by way of a recovery order of Order (3) above.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in relation to the interpretation, implementation or enforcement of these Orders.
If the Child is at preschool or school at the time of the making of these Orders, then the following applies:
(a)The Independent Children’s Lawyer is authorised to communicate to the Director/Principal of the said preschool/school a copy of these Orders, or advise the substance of these Orders by telephone, and request that no person other than the Father be permitted to collect the Child; and
(b)The Father is directed to forthwith attend the Child’s preschool/school to collect her; and
(c)The Mother is restrained from attending the said preschool/school, or requesting or directing any third person to collect the Child from the said preschool/school.
If the Child is not at preschool/school, the Mother is hereby ordered to inform the Court of the precise location of the Child and to then forthwith comply with any order of the Court for the Child to be delivered into the care of the Father.
IT IS NOTED that publication of this judgment under the pseudonym Palmeter & Kagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 21 of 2016
| MR PALMETER |
Applicant
And
| MS KAGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born … 2013 who is 6 years old. This is a complex case, and a difficult decision. In some respects the decision is about establishing where there is least risk for X.
Background
X’s father is the Applicant, and her mother the Respondent. They both live in the Region D region of New South Wales. Her father describes himself as a tradesman, whilst her mother appears to be a full-time parent in receipt of a pension. The Father is 45 years old, and the Mother is 47 years old. The Mother has another child, Mr E, who is 21 years old. Whilst he does not live with the Mother and X, it is clear that he is an important person in X’s life, and spends considerable time with her. The other members of X’s household include the maternal grandmother, Ms F and the maternal step-grandfather, Mr G.
The Father has repartnered and he lives with his fiancée Ms H and her two children, FF and GG.
X’s parents commenced their relationship in … 2012, X was born the next year, and the relationship ended in 2014. The evidence of both parents suggests that their relationship was somewhat turbulent. They were not necessarily living together the entire time and there was conflict between them which increased after X was born. It is clear from the evidence of both parents and the independent evidence produced on subpoena (referred to below) that the Mother experienced mental health issues during the relationship and after X was born. Indeed, even on the Mother’s own evidence she continued to suffer mental health issues throughout the period of this litigation. Some of her early diagnoses included major depressive disorder, post-traumatic stress disorder, and anxiety. The Mother’s anxiety was a palpable feature of her presentation and conduct during the Hearing, at times.
A consistent theme of the evidence of both parents was that almost immediately after X was born issues arose between them about the Father’s time with her. At least two parenting plans were entered into between the parents before the present litigation was commenced in 2016. A number of interim orders were made for X to spend time with her father but, once again, a common feature of the evidence of both parents is that this contact was inconsistent and highly problematic. The matter came back before me for Interim Hearing on a number of occasions. Both parents presented competing versions of why the parenting plans, and the orders, were not complied with. A common feature of these explanations was that they each blamed each other, and took no responsibility for their own actions, and attitudes.
The interim orders made by the Court in these proceedings are included chronologically in the First Schedule to these Reasons for Judgment.
There are a number of relatively uncontentious facts about the relationship between the parents. In the Mother’s Case Outline Document dated 29 July 2019 she refers to the “…long-term incapacity of the parties to operate flexibly with one another and communicate at all…”. She states:
The parties’ prior relationship was characterised by tensions and arguments and the conflict only subsided due to the intervention of legal representation for the parties. The parties, even after all this time, are still in high conflict and it is clear are unable to consult and communicate about long-term issues for the child even at final hearing.
There is nothing in the evidence of the Father or, indeed, in any other evidence before the Court which would suggest that the Mother’s description of her relationship with the Father, set out above, is incorrect.
Each party makes very serious allegations against the other which, if found to be correct by the Court, present risks of harm to X. The Mother’s alleged risks presented by the Father are both physical and psychological. The Father’s asserted risks against the Mother are psychological.
Whilst both parents were represented, at various times, during the course of this litigation, by the time of the Final Hearing they each represented themselves. X was, fortunately, represented by an experienced Independent Children’s Lawyer, Ms Hewlett, who briefed experienced Counsel, Ms Reynolds. The Mother represented herself and played a very active role in the proceedings. She impressed the Court as being highly intelligent, articulate, sometimes prone to emotion, occasionally aggressive but mostly assertive, and clearly convinced as to the merits of her case. The Mother’s intelligence, and understanding of the law, is reflected in the case outline document that she filed. This document reflected clarity in the orders that she sought, and an understanding of the relevant statutory provisions. At first I thought that she had received expert legal assistance in preparing the case outline, but the Mother assured me that she had prepared it herself. The Father represented himself but his role in the proceedings was very low key, indeed. He was prepared to allow Counsel for the Independent Children’s Lawyer do the vast majority of cross-examination. He was neither as articulate nor as intelligent as the Mother, but like her, was just as prone to allow subjectivity and emotion to cloud his thinking about this case.
The competing proposals
In her case outline document the Mother set out the minute of order she proposed. She asked the Court to make an order for sole parental responsibility, and that X should live with her. The Father would need to do a number of things including undertake a complete independent mental health assessment, and become educated in the management and support of asthma, which X suffers. He would then have supervised contact visits with CatholicCare Children’s Services each alternate Saturday from 9:00am to 5:00pm.
On 13 December 2009 to the Mother filed a Response. For all practical purposes the Court will treat this as the latest representation to the Court of the orders that she seeks. The detailed orders sought by the Mother are reproduced in the Second Schedule to these Reasons for Judgment. She sought an order for sole parental responsibility and that X live with her. She sought an order that X have the right to practice her religion as a Catholic, attend all religious events, and be supported and encouraged by her parents and caregivers to participate. For the first 18 months she would spend time with her father each alternative weekend from 9:00am Saturday to 4:00pm Saturday and 9:00am Sunday to 4:00pm Sunday. After that, she would spend time with her father each alternate weekend from Saturday 9:00am to 4:00pm on Sunday, but with the overnights supervised by the paternal grandmother, at the paternal grandmother’s home. During school holidays in the mid-year, X would spend one half of the holidays with her father, but with no overnight stays for the first 18 months. The Mother proposed orders in relation to special days. There are a number of ancillary orders, and also orders irrelevant to the present proceedings, including about child support. Curiously, the Mother also sought interim orders in her response which provided for the cessation of overnight time until final orders were made, but with the fortnightly visits to continue on Saturdays and Sundays but limited to between 9:00am and 4:00pm. The basis of seeking interim orders is unclear.
During the course of the Hearing it became obvious to the Mother, mainly through the intervention of the Independent Children’s Lawyer, that it was highly unlikely that the Court would make an order for supervised contact at a supervised contact facility on a final basis, even if the Court accepted the Mother’s assertions of risk of harm to X. The Mother’s proposal then changed so that the Father would spend time with X on one day of each alternate weekend supervised by the paternal grandmother. The evidence of the paternal grandmother satisfied the Court that she would be willing to undertake this responsibility, even though as was obvious in the Mother’s cross-examination of the paternal grandmother, their relationship is far from a cordial one. As mentioned above, by the conclusion of the proceedings her proposal has changed to that set out in her Response of 13 December 2019.
The orders sought by the Father are set out in his Amended Application filed 5 July 2019. He sought an order for sole parental responsibility, and that X live with him. X would then spend time with her mother each alternate weekend from after school on Friday to before school on Monday, and half of the school holiday periods. The full orders sought by the Father are reproduced in the Third Schedule to these Reasons for Judgment. The Father’s proposal at the Final Hearing was not, however, his initial proposal. Initially he simply wanted an order for regular contact and communication with X. As time went by, he raised the possibly of equal time. It seems to have been the receipt of the Single Joint Expert Report produced by Dr J on 24 April 2018 that may have precipitated the change in his proposal.
The Independent Children’s Lawyer’s proposal was not advised to the parties and announced to the Court until immediately before closing submissions on day 4 of the Hearing. She largely adopted the Father’s proposal i.e. that he have sole parental responsibility, that X live with him, and spend substantial and significant time with her mother. The Independent Children’s Lawyer’s minute is reproduced in the Fourth Schedule to these Reasons for Judgment.
The polarised proposals of the parents are self-evident. It was further common ground that X has always lived with her mother, has never lived with her father, and indeed has never spent overnight time with her father until relatively late in these proceedings.
The documents relied on
As the evidence progressed during the course of the Hearing it became increasingly obvious to the Court and to the Independent Children’s Lawyer that, particularly in the Mother’s case, and to a lesser extent the Father’s case, they had not necessarily relied on all of their relevant Affidavits. This did not appear to affect the cross-examination by Ms Reynolds, Counsel for the Independent Children’s Lawyer, as she traversed all of the relevant issues, whether arising from the Affidavit that the Mother and Father relied on, or earlier ones. However, disadvantage may have been experienced by the Mother, and to a certain extent the Father as well. In order to seek to do justice to the cases raised by both of them, particularly in such a difficult and finely-balanced case, I indicated to the parents that I would read, and consider, the earlier Affidavits filed by each of the witnesses who gave evidence during the Hearing. They did not cavil with this proposition and, the Mother in particular, seemed grateful for this. An explanation was given, however, that depending on the evidence contained in the earlier Affidavits different weight might be accorded to the evidence depending on, for example, what cross-examination had taken place. The Court notes that it was particularly important in the Mother’s case to have regard to her earlier Affidavits in order to seek to understand her case that there was a risk of harm to X from her father, and that was the reason why her time needed to be supervised.
Having regard to the above the following material was relied on, or deemed as having been relied on by the parents.
In the Father’s case, he relied on the following documents:-
a)Amended Initiating Application filed 5 July 2019;
b)Affidavit of Mr Palmeter sworn and filed 19 November 2019;
c)Affidavit of Mr Palmeter sworn and filed 12 July 2019;
d)Affidavit of Ms H affirmed and filed 12 July 2019
In the Mother’s case, she relied on the following documents:-
a)Response filed 13 December 2019;
b)Affidavit of Ms Kagan filed 13 December 2019;
c)Affidavit of Ms Kagan filed 23 July 2019;
d)Affidavit of Ms Kagan filed 19 July 2019;
e)Affidavit of Mr E filed 15 July 2019;
f)Affidavit of L filed 15 July 2019;
g)Affidavit of Ms F sworn 26 September 2016 and filed 29 September 2016; and
h)Case outline document received 29 July 2019;
The Independent Children’s Lawyer relied on the evidence of Dr J.
A considerable volume of documents came into evidence by way of tender: -
a)Video and colour photographs from July 2019;
b)Parenting Plan dated 12 March 2015;
c)Report from Mr M (Optometrist) dated 19 July 2019;
d)Bundle of photographs of the Child X;
e)Documents produced pursuant to subpoena on CatholicCare;
f)Documents produced pursuant to subpoena on NSW Police;
g)Documents produced pursuant to subpoena on N ;
h)Documents produced pursuant to subpoena on Dr O and Dr P;
i)Documents produced pursuant to subpoena on Sydney Childrens Hospital;
j)Emails dated 21 June 2019 from the Mother;
k)Mother’s Medical Certificate dated 26 May 2019;
l)Emails in relation to service dated 12 and 26 July 2019;
m)Bundle of various documents tendered by the Mother, including medical certificates, correspondence, and photographs;
n)Tender bundle of subpoena material and email correspondence compiled by the Independent Children’s Lawyer.
This penultimate bundle was forwarded to the Court by the Mother after closing submissions. The Father objected to the Court receiving these documents. There are 3 categories of documents in this bundle:
a)Documents that might be relevant to the Court, but the relevance of which might only be marginal, and where the relevance might not become apparent until the evidence was being assessed as part of the Court’s deliberation;
b)Marginally relevant documents where the prejudice to the Father was minimal to non-existent; and
c)Two bundles of documents that clearly form part of the preparation of the Mother’s case during the period that she was legally represented. These documents comprise two emails sent by the Mother to Ms Q, her then lawyer, dated 13 September 2018, both attaching substantial information to assist in the preparation of the Mother’s case. The Court has not read the attachments. The material may well be protected by privilege. It may be prejudicial to the Mother if the Court reviews this information. It may be prejudicial to the Father as well. The documents were accordingly returned to the Mother.
The issues in this case
The main issues in this case relate to risk of harm. The first issue is whether there is a risk of harm to X associated with being in her father’s care. This will involve seeking to understand what the alleged risks are, and assessing the evidence relating to those risks. If this risk is established, as the Mother contends, the Court will then need to consider how the risk is best managed whilst maintaining a relationship between X and her father. One complication in this regard, however, is that even though the Mother expressly submitted to the Court, for example in her case outline and in her Response filed 13 December 2019, that there should be a relationship between X and her father, the practical effect of her evidence was precisely the contrary i.e. she preferred that X not have a relationship with her father. As will be seen the Mother’s view was shared by her son Mr E, and her mother Ms F.
If the Court finds that there is no risk to X arising from spending time with her father, the focus changes to whether there is a risk for X in her mother’s care, as is the Father’s case. The Court will need to consider what are the alleged risks, and whether there is evidence relating to those risks. The impact on X will need to be considered, particularly having regard to the fact that X has lived with her mother all of her life. If a risk is established, the Court must consider how X can best be protected.
Depending on the Court’s findings about risk, the Court will then need to consider a range of matters under section 60CC of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’).
The key allegations in this case
The Mother’s case against the Father is that he presents a risk of harm to X because of his mental health, drug and alcohol abuse, violence and aggression, and his inappropriate relationships with teenage girls. The Mother’s case, therefore, is that all of these matters not only affect the Father’s parenting capacity, but present a risk of physical and emotional harm to X.
The Father’s case is that X is at risk of harm in her mother’s care. He raises concerns about the Mother’s mental health, and in particular her anxiety. The Father raises concerns about the Mother’s abuse of both prescription and non-prescription drugs. The main platform of the Father’s case, however, is that the Mother, and indeed the maternal grandmother and the Mother’s son Mr E, are simply incapable of supporting Mr E’s relationship with her father. He contended, in the above circumstances, that that only order that would result in X having a relationship with both her mother and father is one in which X lives with him, and spends time with her mother.
The applicable law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) 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:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) 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.
Reasonable practicality
(5) 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 parents, the court must have regard to:
(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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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 following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 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. Sub-section (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 and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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 parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC 92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
Is there a risk of harm to X in her father’s care?
Some of the concerns raised by the Mother may be dealt with summarily simply because the evidence in support of the risks is absent. Moreover, the Single Joint Expert Dr J was also of the professional view that these risks did not exist.
The Court finds that there is no risk of harm to X based on concerns the Mother raised about the Father’s mental health, his consumption of drugs and alcohol, and his asserted aggression and violence. The evidence about the Father’s alcohol use was historical, and the more recent evidence from both the Father and his partner, which the Court accepts, is that his alcohol use is moderate.
There is no evidence to suggest that the Father has any concerns about his mental health. Dr J suggested that there are features of the Father’s personality suggestive of dependent personality disorder, but this establishes no risk to X.
In relation to violence, there may well have been conduct amounting to family violence as defined in the Family Law Act during the short and tumultuous relationship of the parents but the evidence suggests that this was historical, and situational in nature. There is no evidence of any coercive and controlling behaviour by the Father. Indeed, if this were the test, it would be the Mother who could be found the perpetrator, based on conduct that will be described below.
There is evidence to suggest that the Father has acted aggressively, both in the workplace, and in a relatively recent road rage incident. Dr J did not believe that this presented a risk of harm to X. Whilst the Court retains some concerns about the Father’s potential for aggression in his dealing with others, his proposal for parenting X is in the context of his relationship with his fiancée, and in a household involving her, and her children. There are no reports of aggression or violence in that household. The Court is satisfied that there is no risk to X arising out of the Father’s aggression.
As those risks are now eliminated, the focus turns to the Mother’s allegations about the Father’s inappropriate conduct with teenage girls. The Mother’s concerns in this regard appear primarily based on the evidence of her son, Mr E. The evidence of Mr E needs to be explored in detail, both in order to understand precisely what are the concerns raised against the Father, and what weight should be given to the evidence.
The Trial Affidavit of Mr E was made on 12 July 2019 and he made a previous Affidavit on 28 April 2016. Mr E is 21 years old. Like his mother, he presented as both intelligent and articulate. There is no doubt, however, that he had embraced his mother’s case. As will be seen below, he was dogmatic in his views and conclusions. At paragraph 3 of his Trial Affidavit Mr E sets the tone for the concerns raised: “I say there was a clear pattern of behaviour by Mr Palmeter towards A and R and it is referred to as grooming.”
This is a very serious allegation to make. A is the daughter of the Mother’s close friend, and R is the daughter of the Mother’s sister i.e. the cousin of Mr E. It is clear that both of these girls, whilst teenagers, spent considerable time in the Mother’s household, both before and after X was born, and during times when the Father was present.
Mr E goes on to explain in his Affidavit the basis of his conclusion that the Father was grooming A and R. He explains at paragraph 3, for example, that he “personally observed firsthand that Mr Palmeter would watch television or movies with the girls”. In paragraph 4 he explains that he observed that the Father would listen to music with the girls. At paragraph 5 he asserted that the Father “was overly affectionate with A” but did not explain what this meant. At paragraph 6 he deposes: -
On one occasion I saw Mr Palmeter expose his penis in front of A in fact he was completely naked after intentionally dropping the towel he was wearing when he hung from the landing where the stairs are at home right in front of her.
The Father was cross-examined about this event by Counsel for the Independent Children’s Lawyer. He flatly denied that the event in question ever occurred.
Mr E was extensively cross-examined about this incident. He had clearly formed the view that the Father had “intentionally” dropped the towel he was wearing. It was very hard to understand how Mr E could conclude that the Father’s actions were intentional particularly in a situation where, it seems even on Mr E’s account, the Father was hanging from a stair railing, presumably with both hands, given that (and meaning no disrespect) the Father did not appear to be of athletic build such that he could both hold on to the stair railing with one hand, and the towel with another.
The Court’s impression of this event, assuming it occurred along the general lines posited by Mr E, is that the Father was engaged in some skylarking or tomfoolery, and paid inadequate regard to the state of his dress, and to the people present in the home.
At paragraph 7 of Mr E's Affidavit, the theme of grooming continued. Here he refers to the number of occasions when A and the Father “would disappear and return some hours later.” At paragraph 9, he refers to A sitting on the Father’s lap. At paragraph 10, there is an assertion that A would lay down on the lounge with the Father, the context suggesting that it was watching television. In the third sentence of paragraph 10 Mr E deposes:
Looking back, the creep always seemed to have a blanket nearby ready to cover them both over regardless of the fact it was beach weather at the time so clearly he wasn’t doing it because anyone was cold.
At no stage does Mr E assert that the Father actually used any blanket. The complete subjectivity of Mr E’s evidence is revealed in his description of the Father as “the creep.”
The theme continues at paragraph 12 where he refers to the Father spoiling A with gifts. At paragraph 15, one can only suppose that the Court is meant to see, as evidence of grooming A, that the Father bought her a birthday present allegedly “an expensive horse statue….”
The above represents the highlights of the evidence Mr E relies on in support of his conclusion that the Father was grooming A. Curiously, Mr E's Affidavit of 29 April 2016 makes no reference at all to A.
The context of Mr E's Affidavit suggests that all of these events allegedly took place before X was born. From paragraph 17 of his Affidavit the focus turns to R, and the context is clear – the events occurred after X was born.
From paragraph 18 Mr E refers to an event when both he and R were 15 years old. He explains that on weekends it was just R, the Father and himself together at home downstairs. At paragraph 19, he refers to an event on a Friday night when the Father was “…going on and on at us to join him in drinking alcohol.” At paragraph 20, he gives details of the Father providing drinks to both Mr E and R. The evidence continues through to paragraph 23. It is clear that the tenor of Mr E’s evidence is that they all drank a lot and that, in particular, R drank a lot. This is consistent with his Affidavit of 29 April 2016.
At paragraph 24, he explains that the following morning the Father had gone, and R was complaining that she did not feel well and had a bad headache. In the second sentence of paragraph 24 he deposes: “She said she woke up on the lounge with Mr Palmeter but didn’t remember much.”
The reference is presumably to what R told him, and it is more likely than not that the inference sought to be drawn was that something inappropriate took place between R and the Father.
At paragraphs 25 and 26, Mr E refers to events that occurred on a Sunday afternoon, but it is unclear whether it is the Sunday after the Friday night referred to immediately above. He deposes in paragraph 25 to R coming into his bedroom, flinging herself on his bed whilst he was playing his X-Box, and soon after falling asleep. In paragraph 26 he explains that the Father came in, seemingly appearing relieved to see her, in fact, “appearing relieved to see her.” In the third sentence of paragraph 26 Mr E deposes:-
He said that they had just returned from the beach where they had been for a few hours together and the reason R was behaving strangely was because they had been smoking marijuana together.
Mr E’s earlier Affidavit does refer to this incident at paragraph 13, but in this version R admitted she and the Father had smoked a joint together at the beach.
At paragraphs 27 to 30, he gives evidence inferring that the Father was a marijuana user. At no point in his Trial Affidavit does Mr E depose to seeing the Father smoke marijuana. His contention, for example, was that he could smell the smoke. In his earlier Affidavit, Mr E discloses that he himself smoked marijuana with the Father at paragraph 12, and that he saw the Father smoke the same.
At paragraph 33, Mr E deposes:
In June 2014 not long after the passing of HH over the Queen’s Birthday Holiday weekend, there was a night I recall R became very unwell after drinking an excessive amount of alcohol with Mr Palmeter. I still recall the amount of empty alcohol bottles in the kitchen and lounge area it was shocking and looked like a party had taken place. It was hard to believe that only two people drank all of that alcohol themselves but they had.
Mr E does not depose that he saw the alleged drinking by the Father and R, but it was certainly the conclusion he formed. In his earlier Affidavit at paragraph 9 he did see this happen.
At paragraphs 34 to 39, Mr E gives important evidence about events that occurred the night of the event deposed to in paragraph 33, and the next morning. The impression created from this evidence is that R was seriously affected by alcohol, had made a mess, had to be showered and then put into bed. Mr E appears to have been present for a major part of the events he deposes to, though this would include, by logical implication from his own evidence, the undressing of R, her showering, and subsequent dressing. And yet, this seems to the Court to be both inappropriate, and improbable.
Nonetheless, in paragraph 34, Mr E deposes; “Together we managed to get her into the shower.”
The reference here must be to the Mother. At one point he was obviously alone in the bathroom with R, before the Mother returned and, in accordance with paragraph 36; “…took over in the bathroom and R was dried off, dressed and helped back into Mum’s bed.”
I want to make it very clear that I am in no way suggesting that Mr E behaved inappropriately, but I am casting doubts on the plausibility of his recollection of these events. According to his own evidence, both he and R were either 15 or 16 at this time. Curiously, in his earlier Affidavit at paragraph 10 he deposes that “… Mr Palmeter and I had to put her in the shower…”
At paragraph 37, Mr E deposes that both he, and the Mother, remained in the bedroom until R fell asleep. The Mother went downstairs to care for X. Mr E went to leave the room, and found the Father standing there. He says the Father told him that he was going to sleep in his van. Mr E went downstairs, and then came back up to bed.
At paragraph 38, Mr E deposes:
The next morning, on my way back from the bathroom I saw Mum’s door open. I saw R first with Mr Palmeter close behind her. Shocked, I said, “I thought you were sleeping in the van?” Neither of them said anything and R looked instantly embarrassed, her face went red and she put her head down. There was an awkward silence and they both went downstairs saying nothing further to me.
At paragraph 39, Mr E explains that he was certain that R went to bed fully clothed, and he expressed the opinion that; “…she was not in any state to get changed.”
What he observed, however, was that she was only wearing a singlet and her underwear and the Father was in underwear without a shirt. He goes on to explain that because R suffers bad eczema:
…it is really rare to see her without her bike tights on because she is very self-conscious and embarrassed about it and always wears them. I know Mum put them on her last night before putting her to bed too.
There is no doubt, from the Court’s perspective, that this event is the zenith of the Mother’s case about the risk of harm that the Father presents to X, because of his inappropriate conduct with teenage girls. As will be seen, however, the inference, or perhaps more correctly innuendo, sought to be drawn was that the Father and R had engaged in some sort of sexual activity that night. Curiously, none of this is mentioned in Mr E’ earlier Affidavit.
The matter be stood over to the 3 day Final Hearing on 29 – 31 July 2019 at 10:00am.
Orders made 25 September 2019
THE COURT ORDERS THAT:
Further interim Orders be made in accordance with the document marked “A” dated this day 25 September 2019 and attached hereto.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” to the Court within seven (7) days.
The Father is to ensure that the paternal grandmother is to do all things possible to diligently ensure that the Child is not left unattended at any time during the changeover process, including between the time that the Child exits the car and enters McDonalds.
The matter otherwise be adjourned to a date to be advised for delivery of reserved Judgment.
“A”
IT IS ORDERED:
Pending further Order, for the purposes of stage 4 of the Orders made 5 April 2019 changeover will take place as follows:-
1.1At the commencement of time changeover will take place at CatholicCare at 9.30am on a Saturday with both parties to follow all reasonable directions of CatholicCare.
1.2At the conclusion of time changeover will take place inside McDonalds Suburb BB and the Paternal Grandmother will facilitate such changeover with only the child, Mother and Paternal Grandmother to be in attendance at the changeover.
1.3The Father will not attend McDonalds Suburb BB during changeover at Order 1.3 herein and will do all things possible and necessary to ensure that the Father's Partner Ms H will not attend McDonalds Suburb BB during changeover.
Schedule Two
Orders sought by the Mother
That the Mother have sole parental responsibility for the child X born … 2013 in relation to the heath, care, welfare, development and religious Catholic upbringing of a long-term nature involving the child.
That the Child live with the Mother.
That the Child have the right to practice her religion as a Catholic, attend all religious events (both at School and Church), and be supported and encouraged by parents and caregivers to participate.
The Child to spend time with the Father for a period of 18 months as follows:
4.1 Each alternate weekend from 9am Saturday to 4pm Saturday; and 9am Sunday to 4pm Sunday. 4.2 That the Child be dropped off and collected at the Paternal Grandmothers home with changeover to take place in the presence of the Mother and Paternal Grandmother outside the property at AA Street, Suburb BB. The Father to remain inside the property and to encourage his Partner to do the same.
4.3 Changeover to take place between the Mother and Paternal Grandmother at McDonalds Suburb BB as a second option for changeover should first option not be available for any reason. Father and partner to remain off the premises during changeover. 4.4 All parties to abstain from the consumption of any illegal (non-prescribed) drug and/or alcohol 12 hours prior to caring for the Child and during the time child is in care.
Thereafter that the Child spend time with the Father as follows: 5.1 Each alternate weekend from Saturday 9am to 4pm Sunday. With overnight stay under supervision of Paternal Grandmother at her home at AA Street, Suburb BB. 5.2 That the Child be dropped off and collected for changeover at the Paternal Grandmothers home at AA Street, Suburb BB in the presence of the Mother and Paternal Grandmother only with the Father to remain inside the property and to encourage his Partner to do the same.
All parties to avoid contact and conflict in the presence of the Child at all times.
All parties to abstain from the consumption of any illegal (non-prescribed) drug or alcohol 12 hours prior to caring for the Child and during the time Child is in care.
That the Child spend time with the Father on special occasions as follows;
8.1 For first half of the NSW School holiday terms 1, 2 and 3 for the first week in even numbered years and the second half in odd numbered years. From 9am to 4pm daily (with no overnight stays for the first 18 months). Drop off and pick up at Paternal Grandmothers home without presence of Father or partner during changeover between Mother and Paternal Grandmother. 8.2 On the Child's birthday. If the Child’s birthday falls on a non-school day; with the party who the child is not living or spending time from 9am to 2pm. If the child’s birthday falls on a school day; with the party who the child is not living or spending time from 9am to 2pm Saturday the same week.
8.3 On the parties’ birthdays. If the party’s birthday falls on a non-school day; with that party from 9am to 2pm. If the party’s birthday falls on a school day; with the party who the child is not living or spending time from 9am to 2pm Saturday the same week.
8.4 With the Father on Father's Day from 9am to 4pm. 8.5 With the Mother on Mother's Day from 9am to 4pm. 8.6 At Christmas: With the father from 9am to 4pm Boxing Day 8.7 At Easter: With the father from 9am to 4pm Easter Saturday.
That the parties be responsible for the day to day decisions in relation to the care of the Child during the periods that the child is in their respect care. With medications prescribed by treating doctors to be administered to the Child as required and to be communicated to the other party via email to advise last dosage administered.
10.Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of: 10.1 Any medical problems or illnesses suffered by the Child. 10.2 Any medication that has been prescribed, taken within 24 hours of changeover or medication that the Child needs to take while the Child is in the care of the other parent. 10.3 Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the Child. 10.4 Any sporting, social, school or religious functions which the Child is to attend.
10.5 The residential address of the parent. 10.6 The telephone contact number of the parent. 10.8 Any other matters relevant to the welfare of the Child.
11.The Child is to be made available by either parent to attend religious (Catholic), school, sport or social events (ie Birthday Parties of close friends and family) with make-up time to be provided at the earliest convenience if the Child is to attend with either parent.
12.Communication between parties to be made via email, unless in emergency, and should relate to the welfare and care of the child only. Parties are to refrain from personal comments, threats, harassment or any other denigrating comments of any kind. Parties are to reply to questions related to the child via email within 72hrs unless reasonable circumstances prevent this.
13.The Child is to be given access to phone contact to call either parent to allow her freedom of contact.
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the Child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the Child's presence.
The parties be restrained from harassment, stalking or intimidation of the other party and are to discourage other family members to cease and/or be restrained from participating also.
Child Support Agency to be contacted by the parties and informed of any change to circumstances, including providing current reasonable estimates of income if not already in place within (28) days of the date of these Orders.
Child Support Agency to be contacted by the father within (28) days of the date of these Orders to enter into payment arrangement to clear debt and put in place a fair and reasonable ongoing support payment for the child.
The Child is to be given access to a qualified third party contact, such as a Child Psychologist, Social Worker or Care Worker to provide her with the right to finally have a voice ensuring any concerns raised will be reported by the independent person via the appropriate channels. The appointment of this person should be made within (28) days of the date of these Orders. The Mother will make the arrangements and will notify the father when this is in place providing the contact details in due course.
19.That the Mother continue to attend her GP with ongoing Mental Health Plan in place.
20.That within (28) days of the date of these Orders the Father shall attend on his general practitioner to obtain a Mental Health Care Plan and engage in any allied mental health services as directed under the plan for the purpose of addressing the untreated mental health issues including but not limited to those identified by Dr J in the Family Report. The Co-dependent Disorder and Hebephilia identified by Dr J in his report also appear to remain untreated however these issues raise significant concerns with regard to the applicant’s ability to parent and care for the Child if left untreated.
21.That within (14) days of the date of these Orders the Father is to contact the Drug and Alcohol Community Adult Team (DACAT) on … B Street, City C) within the Region D Area Health Service to arrange a drug and alcohol assessment at the first available opportunity and engage in any counselling or recommended therapy. The Father to notify the Mother with confirmation of attendance.
22.That within (14) days of obtaining a referral for treatment by a psychologist, the Father shall contact the specialist medical practitioner and schedule as early as possible an appointment with that person who is not previously known to him or any of his family. The Father to notify the Mother with confirmation of attendance.
23.That the Child be encouraged by the parents to attend visits but not forced. If highly distressed for any reason the Child is to return to the Mother.
Schedule Three
Orders sought by the Father
That the parties have equal shared parental responsibility for the child namely, X born…2013.That, subject to Order 2 below, the father have sole parental responsibility for the child X born … 2013 in relation to the care, welfare and development of a long-term nature involving the child.That for the purpose of Order 1 and except in the event of an emergency, before making any decisions about long-term issues in relation to the child, the father will consult with the mother as follows:
2.1Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on long-term issues in relation to the child proposed to be made by the father;
2.2Provide the mother with all relevant information relating to the long-term issue which is in the possession of the father;
2.3Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or educational institution;
2.4Give serious consideration to any response from the mother before making a decision; and
2.5Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
2. 3. That the child live with themotherFather.
3. 4. That the child spend time with the father Mother as agreed but failing agreement as follows::
4.1Each alternate weekend from after school (or 3:00pm if not a school day) Friday to before school (or 9:00am if not a school day).
4.2For half of the NSW School holiday terms 1, 2 and 3 as agreed but failing agreement for the first week in even numbered years and the second week in odd numbered years.
4.3For the Christmas school holiday period on a week about basis as agreed, but failing agreement for the first week in even numbered years and the second week in odd numbered years.
3.2 For a period of 3 months on a two week cycles as follows:
3.2.2In week 1:
3.2.2.1From 9:00am to 3:30pm Friday; and
3.2.2.2From 11:00am to 5:00pm Sunday.
3.2.3In week 2:
3.2.3.1From 11:00am to 5:00pm Friday; and
3.2.3.2From 9:30am to 3:30pm Sunday.
3.3For a further period of 9 months on a two week cycles as follows:
3.3.2In week 1:
3.3.2.1From 5:00pm Friday to 5:00pm Saturday.
3.3.3In week 2:
3.3.3.1From 10:00am Saturday to 10:00am Sunday; and
3.3.3.2From 9:30am to 4:30pm each Wednesday.
3.4For a further period of 12 months until the child commences school:
3.4.2Each alternate weekend from 4:30pm Friday to 4:30pm Sunday; and
3.4.3Each Wednesday from 9:30am to 4:30pm.
3.5Once the child commences school:
3.5.2Each alternate weekend from 4:30pm Friday to 4:30pm Sunday.
4. 5. That the child spend time with the parties on special occasions as agreed, but failing agreement as follows:
4.15.1 On the child's birthday;
4.1.15.1.1 If the child’s birthday falls on a non-school day; with the party who the child is not living or spending time from 9.00 am to 2.00pm.
4.1.25.1.2 If the child’s birthday falls on a school day; with the party who the child is not living or spending time from after school to 5.30pm
4.25.2 On the parties’ birthdays;
4.2.15.2.1 If the party’s birthday falls on a non-school day; with that party from 9.00 am to 5.00 pm
4.2.25.2.2 If the party’s birthday falls on a school day; with that party from after school to 7.00 pm.
4.35.3 With the father on Father's Day from 9.00 am to 5.00 pm.
4.45.4 With the mother on Mother's Day from 9.00 am to5.00 pm1:00pm.
4.55.5 At Christmas:
4.5.15.5.1 In odd numbered years with the father from9.00 amChristmas Eve to2.30pm Christmas Day and with the mother from 2.30 pm Christmas Day to5.00 pm Boxing Day
4.5.25.5.2 In even numbered years with the mother from9.00 am5:00 pm Christmas Eve to2.30 pm Christmas Day and with the father from 2.30 pm Christmasday to5.00 pm Boxing Day.
4.65.6 At Easter:
4.6.15.6.1 In even numbered years with the father from 9.00 am Easter Saturday to 2.30 pm Easter Sunday and with the mother from 2.30 pm Easter Sunday to 5.00 pm Easter Monday
4.6.25.6.2 In odd numbered years with the mother from 9.00 am Easter Saturday to 2.30 pm Easter Sunday and with the father from 2.30 pm Easter Sunday to 6.00 pm Easter Monday
5 . 6. That the parties be responsible for the day to day decisions in relation to the care of the child during the periods that the child is in their respect care.
6 . 7. If the mother is unable to look after the child for any reason the father is to have first opportunity to care for the child.
7. 8. Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
7.18.1 Any medical problems or illnesses suffered by the child.
7.28.2 Any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent.
7.38.3 Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.
7.48.4 Any sporting, social, school or religious functions which the child is to attend.
7.58.5 The residential address of the parent.
7.68.6 The telephone contact number of the parent.
7.78.7 Any other matter relevant to the welfare of the child.
That unless otherwise agreed changeover is to occur at Suburb DD McDonalds until the child reaches the age of 14 years and thereafter from the child’s school.
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child's presence.
That the Mother is to provide the child’s full medical history to the Father and the Father will thereafter seek a second professional opinion in respect of the child’s medical issues.
Notation
A.The parties agree that the father's time with the child in accordance with Order 3 is subject to his contractual work commitments and may vary slightly from week to week.
Schedule Four
Orders sought by the Independent Children’s Lawyer
That subject to Order 2 herein, the father have sole parental responsibility for the child X born … 2013 in relation to the care, welfare and development of a long term-nature involving the child.
That for the purpose of Order 1 and except in the event of an emergency, before making any decisions about long-term issues in relation to the child, the father will consult with the mother as follows:-
2.1Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on long-term issues in relation to the child proposed to be made by the father;
2.2Provide the mother with all relevant information relating to the long-term issue which is in the possession of the father;
2.3Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or educational institution;
2.4Give consideration to any response from the mother before making a decision; and
2.5Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
That the child live with the father.
That the child spend time with the mother as follows:-
4.1Each alternate weekend from the conclusion of school (or 3.00pm if not a school day) Friday to before school (or 9.00am if not a school day).
4.2In 2019 and each odd year thereafter, during the NSW School holiday terms 1, 2 and 3 from the conclusion of school on the last day of school term until 3.00pm on the middle Saturday or as otherwise agreed in writing.
4.3In 2020 and each even year thereafter, during the NSW School holiday terms 1, 2 and 3 from 3.00pm on the middle Saturday until the commencement of school on the first day of the school term or as otherwise agreed in writing.
4.4In 2019 and each odd year thereafter, during the Christmas School holiday period from the conclusion of school on the last day of the school term until 3.00pm on 2 January or as otherwise agreed in writing.
4.5In 2020 and each even year thereafter, during the Christmas School holiday period from 3.00pm, 2 January until the commencement of school on the first day of the school term or as otherwise agreed in writing.
That the child spend time with the parents on special occasions as agreed in writing, but failing agreement as follows:-
5.1On the child's birthday;
5.1.1 If the child's birthday falls on a non-school day, with the parent who the child is not living or spending time with from 9.00am until 2.00pm.
5.1.2 If the child's birthday falls on a school day, with the parent who the child is not living or spending time with from the conclusion of school until 6.00pm.
5.2On the parent's birthday;
5.2.1If the parent's birthday falls on a non-school day; with that parent from 9.00am until 5.00pm.
5.2.2If the parent's birthday falls on a school day; with the parent from after school until 7.00pm.
5.3With the father on Father's Day from 9.00am until the commencement of school on Monday.
5.4With the mother on Mother's Day from 9.00am until the commencement of school on Monday.
5.5At Christmas:
5.5.1In odd numbered years with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
5.5.2In even numbered years with the father from 3.00pm Christmas Day until 3.00pm Boxing Day.
5.5.3In even numbered years with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day.
5.5.4In odd numbered years with the mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
5.6At Easter when Easter falls outside of NSW School Holidays:
5.6.1In even numbered years with the father from the conclusion of school on Thursday (3.00pm if non-school day) until 3.00pm on Easter Saturday.
5.6.1In odd numbered years with the father from 3.00pm Easter Saturday until the commencement of school on the following Tuesday (or 9.00am if a non-school day).
5.6.3In odd numbered years with the mother from the conclusion of school on Thursday (3.00pm if non-school day) until 3.00pm on Easter Saturday.
5.6.4In even numbered years with the mother from 3.00pm Easter Saturday until the commencement of school on the following Tuesday (or 9.00am if a non-school day).
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:-
6.1Any medical problems or illnesses suffered by the child.
6.2Any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent.
6.3Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.
6.4Any sporting, social, school or religious functions which the child is to attend.
6.5The residential address of the parent.
6.6The telephone contact number of the parent.
6.7Any other matter relevant to the welfare of the child.
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
That each of the parents are to be permitted to liaise directly with the child's school(s) and sporting bodies to obtain any necessary information about the child's progress and that both parents are to authorise the schools and sporting bodies to facilitate this.
That both parents are to provide the necessary authorities to the principal of each school attended by the child to ensure that the school forwards to both parents copies of the child's school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
That both parents are permitted to attend school activities that parents would otherwise normally be invited to attend and both parents be restrained from approaching each other at such activities.
That changeover is to occur at the child's school and where changeover does not take place at the child's school, changeover should take place at the Paternal Grandmother's home with the mother to remain inside her motor vehicle and the father to remain inside the Paternal Grandmother's home and be restrained from approaching the mother's motor vehicle.
That the mother and father are to communicate using the Our Family Wizard App or by other such App as agreed in writing unless in an emergency when they will communicate by way of mobile telephone.
That the parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child's presence.
That the father attend upon his General Practitioner to obtain a referral for the father to attend upon an appropriately qualified psychologist to obtain strategies and assistance to assist the father assist the child adjust to the change in living arrangements.
That within 7 days of the orders the mother is to provide the child's full medical history to the father.
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5
3