Pilimatalava and Seneviratne

[2011] FamCA 1040

FAMILY COURT OF AUSTRALIA

PILIMATALAVA & SENEVIRATNE [2011] FamCA 1040

FAMILY LAW – CHILDREN – child abuse – sexual abuse – evidence did not substantiate allegations – no positive finding that abuse occurred – no finding that abuse did not occur – unacceptable risk – balance between meaningful relationship with parent and need to protect the child from psychological harm – child’s views – child does not wish to spend time with the father – child’s views are not influenced by the mother – father lacks insight and understanding about the child’s emotional needs – orders minimise unacceptable risk of harm to child – sole parental responsibility allocated to the mother – child shall live with the mother – child shall spend time with the father in accordance with gradually increasing program of time

Family Law Act 1975 (Cth), ss 4, 60CC, 61B, 61DA
Evidence Act 1995 (Cth)

B v B (1988) FLC 91-978
Briginshaw & Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69

APPLICANT: Ms Pilimatalava

RESPONDENT: Mr Seneviratne

INDEPENDENT CHILDREN’S LAWYER: Mr K Hubert, Capon & Hubert Lawyers

FILE NUMBER: CAC 1016 of 2007

DATE DELIVERED: 10 November 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 7 and 8 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Petrie

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Ms K Conte-Mills

SOLICITOR FOR THE RESPONDENT: Mahony Taren Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr K Hubert

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Capon & Hubert Lawyers

Orders

IT IS ORDERED THAT:

1. All previous parenting orders are discharged.

Parental responsibility

1. Ms Pilimatalava (“the mother”) shall have sole parental responsibility for the child, B, born … 2001 (“the child”).

2. Notwithstanding order 2 above, the mother will inform Mr Seneviratne (“the father”), by way of letter sent by post, of:

   (a)        All serious medical issues relating to the child, including:

   (i)Medical treatment other than routine medical treatments and consultations and treatments for minor ailments;

   (ii)Dental treatment requiring hospitalisation and/or surgery; and

   (iii)Illness which causes the child to be absent from school for five or more days;

   (b)The names of the child’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending; and

   (c)       Details about the child’s education.

3. The mother will authorise and direct the following to provide information about the child to the father upon the father’s request:

   (a)The principal, teachers and any counsellor at the school which the child is attending (in the case of the counsellor, this order is subject to normal professional confidentiality); and

   (b)The child’s doctors, dentists, therapists or other medical or allied professionals.

4. The mother will consider consulting and discussing with the father, by way of letter, the major decisions affecting the child’s well-being.

Child’s time with the father

1. The child will spend time with the father as follows:

   (a)       For two calendar months from the date of these orders:

   (i)The father may send letters addressed to the child to a post office address; and

   (ii)The mother will provide such post office address forthwith, but in any event before 20 November 2011.

   (b)        Thereafter, for one calendar month:

   (i)The father may send e-mail correspondence to the child to an e-mail account established specifically for the purpose of receiving e-mail correspondence from the father; and

   (ii)The mother will arrange such an e-mail account and provide the e-mail address to the father.

   (c)        For the purposes of orders 6(a) and (b) above, the mother will:

   (i)Provide all letters to the child and permit the child regular access to the child’s e-mail account; and

   (ii)Support and encourage the child to reply to the father’s letters and e-mails if the child wishes to do so.

   (d)Thereafter, for one calendar month, the child shall spend time with the father on one occasion for one hour in a public place in Canberra.

   (e)Thereafter, for two calendar months, the child shall spend time with the father each fortnight for one hour in a public place in Canberra.

   (f)Thereafter, for three calendar months, the child shall spend time with the father each fortnight for two hours in a public place in Canberra.

   (g)Thereafter, for two calendar months, the child shall spend time with the father each fortnight for five hours in Canberra.

   (h)Thereafter, for two calendar months, the child shall spend time with the father each fortnight for five hours in Canberra. In relation to such time, the child may choose to bring his support person.

   (i)Thereafter, for six calendar months, the child shall spend time with the father each fortnight from 10:30am on Saturday to 4:30pm on Sunday, not necessarily in Canberra.

   (j)Thereafter, for six calendar months, the child shall spend time with the father each fortnight from 6:00pm on Friday until 5:00pm on Sunday.

   (k)Thereafter, for six calendar months, the child shall spend time with the father:

   (i)Each fortnight from 6:00pm on Friday until 5:00pm on Sunday; and

   (ii)For one week during each of the ACT gazetted school holiday periods.

   (l)        Thereafter, the child shall spend time with the father:

   (i)Each fortnight from 6:00pm on Friday until 5:00pm on Sunday;

   (ii)For one week during each of the terms 1, 2 and 3 ACT gazetted school holiday period;

   (iii)For two weeks during the Christmas school holiday period;

   (iv)If Father’s Day falls on a weekend which the child would ordinarily spend with the mother, the child will spend the Father’s Day weekend with the father and spend the weekend following the Father’s Day weekend with the mother. This will mean the child spends two consecutive weekends with the father and two consecutive weekends with the mother.

   (v)Similarly, if Mother’s Day falls on a weekend which the child would ordinarily spend with the father, the child will spend the Mother’s Day weekend with the mother and spend the weekend following the Mother’s Day weekend with the father. This will mean the child spends two consecutive weekends with the mother and two consecutive weekends with the father.

2. For the purposes of orders 6(d) to 6(g) inclusive:

   (a)The child’s time with the father shall occur in the company of the child’s support person. The child’s support person will be:

   (i)Mr C, the mother’s brother-in-law; or

   (ii)Such other person, other than the mother or her current partner, Mr D, as the child may choose (not excluding, if the child so chooses, the father’s wife, Ms E).

   (b)The father will give to the mother written notice of the day, time and place where he proposes to spend time with the child.

   (c)If the mother is, for any proper reason, unable to facilitate the child’s time with the father on the day, time and place specified by the father, she will provide to the father written notice of this forthwith and nominate a date, time and place in substitution, such date to be not more than seven days after the father’s nominated date.

3. For the purposes of orders 6(i) to 6(l) inclusive where the child’s time with the father may be spent in Sydney:

   (a)The mother shall deliver the child to McDonald’s restaurant at F Town at the commencement of the child’s time with the father and collect the child from the same location at the conclusion of the child’s time with the father; and

   (b)The father shall collect the child from McDonald’s restaurant at F Town at the commencement of the child’s time with the father and deliver the child to the same location at the conclusion of the child’s time with the father.

Overseas travel

1. Pursuant to s 11(1)(b) of the Australian Passport Act 2005, an Australian passport may be issued to the child, and the requirement in s 11(1)(a) of the Australian Passport Act 2005 for consent of the father to issue of the passport, is dispensed with.

2. Pursuant to s 65Y(2)(b) of the Family Law Act 1975, the mother be at liberty to travel overseas with the child at such times as the child is in her care pursuant to these orders.

3. In the event that the mother intends to travel overseas with the child, she will provide written notification to the father of this intention to travel 21 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.

4. If the child would have otherwise spent time with the father during the period when the child is overseas, upon the child’s return to Australia the mother will nominate a day or days on which the missed time will be made up. The mother will appoint a day or days for such make-up time not later than three months after the child’s return to Australia unless the parties otherwise agree.

General

1. Nothing contained in these orders prevents the child’s parents agreeing to change the arrangements.

2. Pursuant to s 62B and 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet, a copy of which is annexed to these orders.

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

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

5. The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.

6. This matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1016 of 2007

Ms Pilimatalava

Applicant

And

Mr Seneviratne

Respondent

REASONS FOR JUDGMENT

1. This matter is before me today for a judgment.  I am afraid this will take a little while because I will be delivering the judgment orally, but I will go through it as promptly as I can.  The parties in these proceedings are involved in a dispute about what are the proper orders to be made in relation to their only child, the child Seneviratne, born in 2001.  The dispute between the parties arose because of the child’s disclosure of alleged sexual abuse by the father and the dispute has centred on how much time, if any, the child should spend with his father.

2. At the commencement of the two-day hearing, the mother sought orders as set out in her trial document dated 7 November 2011. Those orders are annexed to these reasons as ‘Annexure 1’.  At the commencement of the hearing, the father sought orders as set out in his amended response filed on 21 October 2011, and those orders are annexed to these Reasons as ‘Annexure 2’.

3. By the conclusion of the hearing, the father had made a number of concessions, and the effect of these concessions was that he agreed that the mother should have sole parental responsibility for the child and that the mother would authorise and direct information about the child’s school and medical details to be provided to him.  The primary issue that remains, therefore, for resolution by me is the time, if any, that the child will spend with his father. 

4. In support of her application, the mother relied upon the following affidavits[1]:

   a)Her affidavits filed on 29 June 2010 and 7 October 2011;

   b)Affidavit of Mr G filed on 29 June 2010;

   c)Affidavit of Mr D filed on 29 June 2010; and

   d)Affidavit of Ms H filed on 17 October 2011. 

   [1] Trial Document – Applicant Mother.

5. In support of his application, the father relied upon his affidavit filed on 21 October 2011 and his affidavit sworn 30 October 2011.

6. I have been assisted during the course of the proceedings by an independent children’s lawyer, Mr Hubert. 

Background facts

1. The parties entered into marriage in 2000 and the child was born in 2001.  The parties separated in April 2003 and the mother then located to Canberra and went to live with her current partner, Mr D.[2]  Around the time of separation, the mother began to suffer from symptoms of depressed mood.  She reported having a low mood, reduced appetite and associated weight loss, failures in self-care, tearfulness and ruminative thinking.  The mother associated these symptoms with the conflict she felt about ending her marriage and separating her son and his father, which is against Country I cultural values.[3] (In making these statements, I have cross-referenced in my draft here the parts of the different material that is before the Court that give rise to those statements.  Those statements come from the report of Dr J and what was said to her by the mother.)  The mother subsequently tried to take her own life by consuming an amount of cleaning product.  She was offered emergency medical treatment and then admitted to psychiatric care in the following weeks, allegedly for depressed mood and suicidal ideation.[4]

   [2] Mother’s affidavit filed on 29 June 2010, [4]-[6]; Father’s affidavit filed on 21 October 2011, annexure “AS”, [3]-[4].

   [3] Single expert’s report, [34].

   [4] Single expert’s report, [35].

2. The parties divorced in July 2004.  Since the time of separation, the child has lived with the mother and spent time with the father in Canberra each alternate weekend, from after school on Friday until Sunday afternoon.[5] In her oral evidence, the mother acknowledged that the child’s time with the father would sometimes be more frequent – when the mother travelled to Sydney with her partner, the child would then spend time with the father.  There were occasions in addition to those that had otherwise been arranged. During time with the father, the child slept in the same bed as the father. These arrangements continued until certain events occurred in 2009, to which I will refer shortly.

   [5] Mother’s affidavit filed on 29 June 2010, [7]; Father’s affidavit filed on 21 October 2011, annexure “AS”, [8].

3. This was the arrangement between the parties and it continued with little difficulty until early 2006.[6] 

   [6] Mother’s affidavit filed on 29 June 2010, [7]; Father’s affidavit filed on 21 October 2011, annexure “AS”, [8].

4. The mother alleges that during a telephone conversation in about January 2006 the parties had an argument and the father threatened to kill both her and the child.  As a result of this, the mother reportedly suffered for some weeks from a re-emergence of the depressed mood symptoms which she suffered in 2003, although apparently to a lesser extent than she had in 2003.[7]  Again, these are matters reported in the affidavits of the parties and the single expert’s report.

   [7] Single expert’s report, [36];

5. After this incident, the mother refused to allow the child to spend time with the father unless such time was supervised.[8]  She also decided she would not communicate or have any contact with the father again.  Consequently changeovers occurred through third parties or in public locations.[9]  The father agrees that the parties argued and says that the argument arose because the mother refused to have a changeover at a location halfway between Canberra and Sydney.[10]  The father denies he made any threat to kill the mother or the child.

   [8] Father’s affidavit filed on 21 October 2011, annexure “AS”, [11] and [12].

   [9] Single expert’s report, [52].

   [10] Father’s affidavit filed on 21 October 2011, annexure “AS”, [10].

6. In about February 2006, the father commenced proceedings in the Federal Magistrates Court to resolve the parties’ dispute about changeover location,[11] and in about March 2006, the father was served with an application filed on behalf of the mother for an apprehended domestic violence order.[12]  On or about 12 April 2006, the mother requested, through her solicitor, that the child sleep in a separate bedroom when spending time with the father, and from that time the father has complied with this request.[13]  On or about 20 April 2006, the father resumed spending time with the child.[14]  The mother withdrew her application for an ADVO on 17 May 2006.[15]

   [11] Father’s affidavit filed on 21 October 2011, annexure “AS”, [12].

   [12] Father’s affidavit filed on 21 October 2011, annexure “AS”, [13].

   [13] Father’s affidavit filed on 21 October 2011, annexure “AS”, [15].

   [14] Father’s affidavit filed on 21 October 2011, annexure “AS”, [14].

   [15] Father’s affidavit filed on 21 October 2011, annexure “B”.

7. The child’s half-sister, K, was born in 2006.[16] 

   [16] Mother’s affidavit filed on 29 June 2010, [6].

8. Proceedings in the Federal Magistrates Court referred to above were finalised in May 2007 by consent.  The parties agreed that the child would continue to live primarily with the mother and spend time with the father each alternate weekend and for one week during each of the terms 1 to 3 school holidays and for two weeks during the Christmas school holidays.  Changeovers now occurred at a point between Sydney and Canberra.[17]  This alleviated the need for the father to travel the entire journey to Canberra to spend time with the child.

   [17] Mother’s affidavit filed on 29 June 2010, annexure “A”.

9. The father deposes that the child’s time with him was usually structured in a certain way.  On Friday evening, the commencement of the child’s time with the father, would be with a request for him to practise the piano for (the father says) up to 20 minutes, after which the child was permitted to play electronic games while the father “[fed] him his dinner”[18].  The child was again required to practise the piano for approximately 15 minutes on Saturday morning, before attending tennis lessons and swimming lessons.  Both the tennis lessons and the swimming lessons concluded before lunch time.  On Saturday afternoons, the child attended piano lessons for half an hour.[19] On Sunday mornings the child would spend 10 minutes practising the piano, after which he usually spent time at a Country I cultural activity and, if there was sufficient time, the father might take him for a bike ride in the park.[20]  Again, these are matters appearing from the affidavits of the parties.

   [18] Father’s affidavit filed on 21 October 2011, annexure “AS”, [18].

   [19] Father’s affidavit filed on 21 October 2011, annexure “AS”, [19].

   [20] Father’s affidavit filed on 21 October 2011, annexure “AS”, [20]-[21].

10. In late May 2007, after orders were made removing the child’s name from the Airport Watch List,[21] the mother and child went on a holiday to Country I.  The child’s return to Australia from this trip was delayed as he became sick while overseas.  On the child’s return, the father resumed spending time with the child on 10 August 2007.[22] 

    [21] Orders, 24 May 2007.

    [22] Father’s affidavit filed on 21 October 2011, annexure “AS”, [62]-[68].

11. The father was not able to spend extra time with the child to make up for the time he missed while the child was overseas.[23]  There were also a number of occasions when the father was not able to spend time with the child as provided in the consent orders.  The first was on 2 November 2007, when the child was sick.  The second was on 9 November 2007, when the father asserts that the mother “denied contact” with the child.[24]

    [23] Father’s affidavit filed on 21 October 2011, annexure “AS”, [60].

    [24] Father’s affidavit filed on 21 October 2011, annexure “AS”. [70].

1. On 15 February 2008, the father was informed by the child that the child could not spend the weekend with him because the mother was required to care for his half-sister and so could not drive to the changeover point.  The father asserts this reason was a falsehood and that, in fact, the family had participated in a cultural event in Canberra where the mother performed a traditional Country I dance.[25]  On 25 September 2009, the father drove to the changeover point to discover that the mother was not there and she had not informed him of this beforehand, he said.[26]

   [25] Father’s affidavit filed on 21 October 2011, annexure “AS”, [73].

   [26] Father’s affidavit filed on 21 October 2011, annexure “AS”, [59].

2. In early October 2009, the child made the first of several sexual abuse allegations. On this occasion he disclosed that the father “puts his finger in [the child’s] bottom”[27].  I will discuss details of this in due course.  Following this disclosure, the child did not spend time with the father on the weekend of 16 October 2009. 

   [27] Mother’s affidavit filed on 29 June 2010, annexure “B”, [14].

3. However, he did spend time with his father on the weekend of 23 October 2009.  On his return from time with his father on that weekend, the child complained to the mother that the father “still came into the shower” while the child was showering, even after the child had requested him not to do so.[28]

   [28] Mother’s affidavit filed on 29 June 2010, annexure “B”, [17].

4. The child again spent time with the father on the weekend of 6 November 2009, and on his return on that weekend, the child asked the mother to make an appointment with the Principal of his school.  The child’s reason for this request was that the father “is still coming into the shower, he is not stopping it.  Can you do something to stop it”[29]  That is a quotation from what the mother says that the child said.

   [29] Mother’s affidavit filed on 29 June 2010, annexure “B”, [18].

5. On the following day (9 November 2009) the mother spoke with Mr G, the after-school care coordinator for the child, about the child’s disclosures.  In response to the mother’s question as to whether it was normal in Australia for fathers to shower their children, Mr G informed the mother this was not a common practice.  The mother related to Mr G what the child had disclosed to both her and her partner.[30]  On the following day, the child himself spoke to Mr G and disclosed to him that the father showered with him and touched his genitals and that the boy did not want the father to do this.[31] 

   [30] Mother’s affidavit filed on 29 June 2010, annexure “B”, [19].

   [31] Mother’s affidavit filed on 29 June 2010, annexure “B”, [20]; Affidavit of Mr G, Annexure “A”.

6. Mr G reported these disclosures to the Child Protection Unit in the ACT.[32]  As a result of the report made to the Child Protection Unit, the child was interviewed by the Joint Investigation Response Team (“JIRT”) on 19 November 2009.[33]  On the same day, an interim apprehended violence order against the father was filed in the Magistrates Court in L Town on behalf of the child.[34]  After a contested final hearing of the matter on 14 April 2010, the application for an AVO was dismissed.[35]   

   [32] Affidavit of Mr G, annexure “A”.

   [33] Mother’s affidavit filed on 29 June 2010, annexure “B”, [21].

   [34] Mother’s affidavit filed on 29 June 2010, [15] and annexure “D”.

   [35] Father’s affidavit sworn on 30 October 2010, exhibit “AS LC”.

7. In June 2010, the mother commenced therapeutic treatment with Ms H, a psychologist, to help address the difficulties she was having in persuading the child to spend time with the father,[36] and at the date of the hearing, the mother had attended five consultations with Ms H. Ms H gave evidence in these proceedings.

   [36] Affidavit of Ms H, [2]-[3].

8. The mother commenced these proceedings in June 2010.

The General Law in Parenting Matters

1. Under the Family Law Act 1975 (Cth) (“the Act”), I am obliged, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[37]  In this regard, “parental responsibility” means all the duties, powers, responsibilities and authority which by law parents have in relation to children and, hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in section 61B, and is not a presumption about the amount of time a child spends with each parent.

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

2. That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the parent’s family or engaged in family violence.[38] “Family violence” is defined in the Act as actual or threatened conduct towards a member of a person’s family or their property which causes that person or any other person in their family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety.[39] 

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

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

3. The presumption of equal shared parental responsibility is rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child’s best interests.[40]

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

4. In determining what is in the child’s best interests, I must have regard to the factors set out in s 60CC of the Act, and I will consider those matters when I further proceed.

Parental Responsibility

1. I should say, however, in this matter that because of the proper concession made by the child’s father about parental responsibility, it is unnecessary for me to consider formally whether the presumption of equal shared parental responsibility is to be rebutted.

2. If I had been obliged to do so, I would, nevertheless, have concluded that it was appropriate to rebut the presumption, not necessarily for the matters that I have referred to above, but because, in my opinion, this is a matter in which, at least at present, and possibly for the foreseeable future, it is probable that the parents will be unable to work together comfortably to bring about cooperation in matters relating to the child’s best interests and his welfare generally.

Issues to be determined

1. Turning, however, to the matters that I am obliged to decide, the first of these might be summarised as follows, and it is important that I consider them in a certain order, because it does bring about the results that I think are appropriate in this matter. 

2. The first is the allegation that is made by the mother, on behalf of her son, that he has been the subject of sexual abuse, by his father. 

3. The second matter, and I will come back to consider these separately, is whether or not the child has been the subject of abuse by his father. His current attitude to his father is such that it would be in his interests for him to spend time with his father. 

4. The third matter is that if it is the case that the child’s attitude to his father is as it appears to be agreed by everyone that it is, this attitude on his part has been induced by the conduct, deliberate or otherwise, of his mother. 

5. This breaks up into two questions.  One is, did the mother deliberately set out to influence the child against his father?  Or was the conduct of the mother in relation to her son, and generally, such as to inculcate in him an opposition to his father which was not intended but, which was nevertheless, the result of the mother’s conduct or lack of conduct?

6. The next matter which needs to be considered and resolved is the nature of the father’s relationship with his son.  This breaks up into a number of different subcategories.  It has been noted in the single expert’s report that the father lacks, and has lacked, and has demonstrated a lack of insight into the effect of his actions on the child and upon his relationship with his son.[41]  This is perhaps in some ways described as a lack of empathy or an inability on the part of the father to understand in any appropriate way the nature of the child’s needs. 

   [41] Single expert’s report, [135]; [172].

7. The fourth matter, or the next matter, that I need to resolve is a broad question of credit as to who might be believed between the parties, and I will return to that as a subset of some of the other matters I have mentioned before.

Sexual abuse allegations

1. Returning then to the list of matters that require some resolution by me, I make the following points.  First, is that the allegations that the father had sexually abused his son involved four separate incidents, reported at different times in different ways.  There were allegations made about incidents which occurred in the shower, which essentially involved the child’s father touching the child’s genitals in the shower.[42]  The second – not second in time, but the second in this list – was an allegation that the father had put his finger in the child’s bottom.[43]  The third was an incident in which the child described that his father touched his genitals while he was in bed and touched then under the covers[44].  And the fourth was an incident, the timing of which is difficult to ascertain, where it is asserted the father had put his hand over the mouth of the child while at the same time touching him in an inappropriate way.[45]

   [42] Mother’s affidavit filed on 29 June 2010, annexure “C”, 6, 9, 14, 27-28; Single expert’s report, [142].

   [43] Mother’s affidavit filed on 29 June 2010, annexure “B”, [14].

   [44] Mother’s affidavit filed on 29 June 2010, annexure “C”, 15-16, 21, 22-23.

   [45] Single expert’s report, [143].

2. In relation to all of these incidents, there are varying degrees of difficulty about the evidence.  Necessarily, for someone as young as the child is, there are inconsistencies in what he said from time to time and from one person to whom he spoke and another.  It is almost inevitable that in relation to allegations of abuse, there will be difficulties with the evidence.  There are principally only two witnesses to the events involved.  One is a young person who is subject to a number of influences (not necessarily anyone’s fault) and the other is the person who is asserted to have perpetrated the abuse.

3. It is, in my experience, very rare for someone to concede that they have engaged in sexual abuse of a child.  Much then, therefore, depends upon the nature of what the child has said, to whom it was said, the circumstances in which it was said and the credibility of what is asserted. 

4. In this matter, it is difficult, to say the least, to determine precisely what was involved.  There is no doubt that the child was unhappy with something his father was doing to him.  Whether that was, as his father asserted, something to do with a cultural experience or a cultural habit or a cultural tradition from Country I, where parents bathe their children until quite late into their childhood,[46] or whether it was because of some indecent approach on the part of the father is not clear entirely from what the child has said.

   [46] Father’s affidavit filed on 21 October 2011, annexure “AS”, [87]-[91]; Single expert’s report, [116].

5. It is clear that the shower incident was dismissed almost peremptorily by Dr J, the single expert appointed, as being something which did not constitute in any way sexual abuse. 

6. The finger in the bottom incident is in itself somewhat incredible in the sense that it is asserted that a finger was inserted to the level of the first joint.  It is difficult to imagine how, if that occurred, the child would have been in a position to have been able to observe how far the father’s finger had been inserted.

7. So far as the bed incident is concerned, the evidence is equally unsatisfactory, not only from the child, but from his father.  This causes me some concern.  The bed incident, so far as the child was concerned, involved his father putting his hands on his genitals under the bedcovers. 

8. According to his father, the incident occurred when the child, who was reluctant to get out of bed, was tickled by the father in the manner described more particularly in the transcript to cause him to get up and get on with his day. The father said (strangely) in his evidence that in the process of “tickling” the child, he accidentally smacked the child on the bottom.  This would be inconsistent with the idea of tickling, and although the father attempted to demonstrate it on the basis that he was poking, not hitting, his evidence about this matter was, by any measure, unsatisfactory.  In addition, his evidence about this matter in the AVO proceedings which were subsequently resolved by dismissal, was also unsatisfactory in that he failed properly to answer the question put to him except in an exaggerated and rambling way which did not provide any confidence that what he was saying was right.  That is, however, not the end of the matter. 

9. The incident of the hand over the mouth seems to have been isolated in reportage by the child and is denied by the father.

10. In relation to allegations of this sort, the Court is obliged to do a number of things.  The first is this.  In my opinion, if a Court is able to make a decision about a matter in dispute between the parties which is factual (and this is a factual matter) then the Court should do so.  I am aware of the dicta, the statements made by the Justices of the High Court in M & M[47] and B & B[48] to the effect that in some instances it is not appropriate for the Court to make a determination about these matters.

    [47] (1988) 166 CLR 69.

    [48] (1988) FLC 91-978.

11. I do not accept that, as a general rule, it is appropriate for the Court to avoid its responsibility to make a decision if it can.  However, for the reasons I have articulated above, it seems to me that there will be a number of occasions where the Court cannot make that decision.  In my opinion, this is one of them.  I cannot in this matter, on the evidence before me, be satisfied to the requisite standard that the incidents to which I have referred constituted sexual abuse of the child by the father.

12. The reasons for my coming to that conclusion are briefly as follows.  First, the standard of proof I am required to apply in relation to it is not beyond reasonable doubt, but is in accordance with the appropriate provisions of the Evidence Act 1995 (Cth), which in turn enshrine the dicta of the High Court in the matter of Briginshaw v Briginshaw[49]. The principles from both Briginshaw and the Evidence Act provide that while this is a civil matter and I have to make a decision on what is described as the balance of probabilities, that in relation to a serious allegation (and a serious allegation this clearly is) I have to be satisfied to the extent referred to by the Justices in Briginshaw:  that is, that I should feel confident or convinced that what has been asserted to have occurred has occurred.

    [49] (1938) 60 CLR 336.

13. Some people describe the Briginshaw standard as requiring in some way a higher level of proof.  I believe the appropriate interpretation of that decision is that a determination is not simply a mechanical comparison of probabilities.  Rather it is, as Dixon J, as he then was, said, “It seems to me that it is necessary for the judge to feel convinced that something has happened.” [emphasis added]

14. In this matter, although I have significant doubts about what did happen, I cannot be convinced to the requisite standard that there was child abuse of the child by his father.  However, and it is a very large “however” in the context of this matter, equally, I am unwilling and unable on the evidence to make a decision that says that the incident, or an incident, constituting child abuse has not happened.  The unsatisfactory nature of that is brought about by the way in which evidence is collected in relation to child abuse.  This is not a criticism of particularly the father’s evidence or particularly the child’s evidence.

15. What happens with young people in these matters is that they necessarily report what they say has happened to some responsible person, usually their mother or their stepfather or some other person.  That person then takes the child to other people, to whom the child then reports what he or she says has happened.  That person may in turn report it to somebody else.  There may be further interviews, and by the time the child has come to the end of this process, he or she may have repeated the story on a number of different occasions and this has caused, in some respects, the evidence to be what lawyers would describe as “tainted”.

16. In this case, for example, the child had presented his version of events to his mother, to his mother’s new partner, to Mr G to some extent, to the police to some extent, and to Dr J.  If I were the child, I would be thoroughly sick of telling my story to people, and for reasons I will describe in a moment, I propose to speak to the child directly at the conclusion of these proceedings because I want him to understand that it is important that he is able to express himself about what has happened and that people will listen to him when he speaks.

17. In this matter, therefore, I am left with a situation where I find myself unable on the basis of the evidence before me, notwithstanding the helpful submissions made by the Independent Children’s Lawyer which analysed a number of elements of the evidence in some detail, and notwithstanding the submissions made on behalf of the mother, to come to a conclusion that the sexual abuse asserted did occur.  Nor could I be satisfied, notwithstanding the helpful submissions and analysis made by the counsel for the father, that the incidents did not occur.

18. Whilst I am unable to make a finding as to whether or not the events alleged constituted sexual abuse (e.g. I could not determine whether the father’s touching of the child’s genitals in the shower was for the purpose of assisting the child to bathe or whether it was sexual abuse), it is clear that the events caused some distress to the child (e.g. the child was distressed that the father continued to shower with him despite the child requesting that he desist from doing so) and the extent to which the father persisted and planned to persist with some of those things, including showering with the child after the child made it clear to the father that he was not comfortable with this, reflect upon the father’s inability to understand and have insight into his son and to matters for the future.  It is not the case necessarily that this means the father had improper intent, and I have indicated I could not make that finding.  Nevertheless, it is clear that this has affected, and continued to affect for some time, the child’s attitude towards his father.

19. The question that then arises is if I am unable to make such a finding, on what basis should I move forward?  The High Court in B & B and M & M has said that it is necessary that a Court in making decisions about these matters, if it is unable to make a decision about whether or not something occurred, and even if it is able to make that decision, must ensure that its decisions are made in such a way as not to impose any unacceptable risk on the child.  Any orders that are made should be on the basis that any time that the child might spend, in this case, with his father or any other arrangements about parental responsibility or care must be such as not to impose an unacceptable risk on him.

20. I make the following comments.  First, since these incidents have occurred, the child has grown up.  As a result of certain matters that come about in due course, if he is to see his father in circumstances where something of this sort might be repeated, it will not be for a further and quite lengthy period.  In such circumstances, it is improbable, in my opinion, that the child would not be able, even though he is a young boy, and his father of course is a mature man – it is improbable, in my opinion, that he would not be able to both resist and cause his father to desist from any conduct he found to be uncomfortable.  This is consistent with the evidence of the experts in this matter and would also accord, in my opinion, with ordinary commonsense.

1. The second thing is this.  The father is an educated and intelligent man, and having had these complaints made to him and having had his attitudes to them severely questioned during the course of Court proceedings, if he were inclined to repeat any of these incidents in the future, it would represent on his part the most extraordinary stupidity that I could possibly imagine.  In such circumstances, it seems to me that it is unlikely that that conduct would be repeated.

2. This may not be of much comfort to the mother of a young boy, but it seems to me that it is a reasonable analysis of what has occurred.  And, moreover, I am comforted in the conclusions I draw in this regard from the opinions of Dr J, whose evidence in the proceedings I found, both in writing and orally, to be convincing and to be helpful in assessing what might be the appropriate way forward.

3. If I were to proceed and make orders that relate to what will happen to the child if he were to spend time with his father, I will do so on the basis that I will apply the criterion that any orders I make must not expose him to any unacceptable risk.  The question, therefore, arises:  what orders should I make, if any? 

The child’s attitude to the father

1. Prior to considering that, there is a further matter that I need to discuss, which I have already indicated in summary form I would do.  That is, irrespective of whether or not what happened to the child constituted some form of abuse, there is no doubt that he has, in my opinion, developed an attitude which causes him not to want to see his father or to have anything to do with him.

2. I do not doubt, notwithstanding the father’s reservations about this fact, that the child’s views are strongly held, and as an illustration of that, I refer to the DVD that was presented to the Court (on a non-contested basis) about the child receiving the present that his father had sent him via the school.  If I had had any doubts about the child’s attitude towards the father, it was clear from that DVD what he felt about things, and in particular that he was concerned that if he were to accept any gift from the father, it might involve him in a commitment to further time with his father. 

3. There is no doubt, further, that he has firmly expressed his view that he does not wish to spend time with the father to a number of people, including to the experts in this matter.[50] To some extent the father’s inability to understand the child’s concerns and, as a result the father’s failure to provide the child with the empathy and support he needed, has compounded this situation.

   [50] Single expert’s report, [146]; Children and Parents Issues Assessment, 4.

4. What I find clearly and unequivocally in relation to the child’s attitude is that this has not been caused by any intentional actions on the part of the mother or of her current partner.  In this regard, I accept as being a generous and appropriate act on the part of the father, his concession made in the latter part of the proceedings that he would not pursue, nor would he assert that the child’s attitude to him, the father, had been intentionally caused by the mother or her partner.

5. That was an appropriate concession to be made, but if it had not been made, it is a finding that I would have made in any event.  I found when the mother gave evidence in these proceedings, particularly in relation to this matter, she was credible and believable and I accept her evidence that she does not and did not intentionally cause in the child the attitude towards the father that he presently expresses.

6. The question that arises, possibly, therefore, is even if the mother did not cause this attitude in the child directly, did she do so indirectly by reason of her comments to the child or to other people or in her body Muage or gestures and attitudes.  I am not prepared to accept that the mother has in any way consciously done something which would have undermined the child’s relationship with his father and I do not so accept.  It is difficult, given the mother’s failure to make a concession, which I invited her to make towards the end of the proceedings, to be satisfied that she does not still genuinely believe that the child has been sexually assaulted and to find it difficult to suppress completely her views about the father as a consequence.

7. In contrast to that, I found her expressions about the father, in the witness box, to be immoderately generous in the circumstances and indicative on her part of a generous and appropriate attitude. 

8. I believe that in the circumstances, there has been an unhappy coincidence of a number of different factors which have brought about the situation with the child.  The view that I have in this matter is consistent with the view reported by Dr J in her evidence and to some extent (although not directly so) by Ms M in her family report.

9. The circumstances contributing to the child’s attitude, it seems to me, are these.  First, the child was exposed to activity from his father which either he, the child, did not understand but certainly did not appreciate and which caused him embarrassment and concern.  The second factor was that the child’s father was unable or unwilling or a combination of both, to respond in a way that would have allayed the concerns that the child had and which would have prevented the situation from accelerating any further.

10. At the same time, there is no doubt that the child’s mother was anxious and concerned about what had happened to her son and it probably (I say probably, because I could not make a certain finding about it) was the case that her anxiety and concern in some way was communicated to the child.  I do not accept, as I said before, that it was intentionally communicated, but it would probably have been difficult for the mother’s anxiety and concern not to have been something that affected the child’s conduct and his state of mind.

11. These are the factors which in combination have brought about a situation which has alienated the child from his father, not the actions of the mother.  Possibly the actions of the father contributed, either directly, by his engaging in conduct that caused the child distress, or indirectly, because of his inability properly to understand what was necessary for the child. 

12. But the question remains whether the child’s spending time with his father would, because of his attitude to his father, bring about psychological distress or harm to the child.  On this matter, I have thought long and hard and have considered with some particularity what the parties have said and indeed, what the experts have said.  It is a matter that has troubled me significantly.  I am concerned on the one hand that if I am to impose upon the child a regime of spending time with his father, that may bring about with him a proper and meaningful relationship with his father in due course.  But I am also troubled by the fact that if I am to impose such a regime, it may bring about distress to him, which may have some psychological disadvantage. 

13. If it had not been for the evidence of Dr J, I think I would have taken the view that the obligation I have to consider the child’s best interests would have been decided by providing that he did not spend time with his father.

14. However, having listened carefully to Dr J’s evidence, it seems to me that the appropriate reconciliation of the matters I am to take into account in relation to the child’s best interests, would require me to make certain orders which I will talk about in a moment.  However, let me explain what I meant by saying the reconciliation of certain matters.

Best interests of the child

Primary considerations

1. Under s 60CC(2), the legislature has prescribed that the primary considerations for me in determining what would be in the child’s best interests are (a) the benefit to him in having a meaningful relationship with both of his parents and, (b), somewhat contradictorily, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. In this matter, for the reasons that I have set out above, it seems to me that there is not an unacceptable risk to the child that he would be subjected to any physical harm. There is a possibility that he might be subjected to psychological harm. But that possibility needs to be balanced against the possibility that, if the child does not spend any time with his father, he could in the future equally be psychologically harmed in relation to his relationship with his mother and, further, in relation to perhaps having a grandiose idea about the desirability of his father and things that his father might have presented to him.

3. I am not a psychologist.  I do not make that determination on the basis of any knowledge of the relevant matters.  They are, however, matters that were put to Dr J, as I recall it, in the course of the proceedings and she confirmed the difficulties associated with those things.  Balancing that against the importance, according to the legislature, in the child’s having a meaning relationship (which does not mean an equal shared relationship or a significant time with relationship with his father) it seems to me that there is a basis for the child’s spending some time with his father in the future.

Additional considerations

1. The other considerations that I am obliged to take into account are set out in s 60CC(3).

2. These include the views expressed by the child, which I have already commented about to some extent.  The child is in the unenviable position in this matter of having to make decisions in part that his parents cannot make for him.  They cannot decide whether or not he should spend time with his father.  They cannot decide how they should treat his concerns.

3. He has expressed his views bravely, indeed courageously, when he has been required to do so, and one of the reasons I wish to see him today is to tell him that his views and his statements have been heard and have been taken into account because it is important that he realises that.  Nevertheless, for the reasons that I have set out above, it seems to me that this is not the only and determinant factor, and while I take it into account, I balance it with the other factors and still come to the conclusions that I do as they appear in the orders that I make in due course.

4. I am also obliged to take account of the nature of the relationship of the child with each of his parents.  His relationship with his mother is a trusting, caring, loving relationship.  His relationship with his father is significantly less than that, if it exists at all at present.  The question that really arises is whether in the circumstances that relationship is capable of repair, and Dr J had the view (and she is a person who has the relevant expertise and whose expertise was not challenged) that this is a relationship which is capable of repair provided that the primary steps in relation to that repair are undertaken by the father.  If he does not undertake those primary steps, then the prospects of his repairing the relationship with his son are probably close to zero.

5. I have taken account of the willingness and the ability, two different things, of each of the parents to facilitate a close and continuing relationship between the child and the other parent.  I have made the comments I have made above.  I do not propose to repeat them.  I am satisfied that from the mother’s point of view, if all things were equal, she would want her son to have a relationship with his father.  She said so in her evidence.  She said so in the way in which she approached the matter.  She said so in relation to such issues as the child’s surname and the importance to him of having a connexion with his father.  The evidence was compelling. 

6. I found it extraordinary that at the very end of the hearing, the concession that Mr Seneviratne made was one which he made, only after counsel’s advice.  I would have thought, having listened to his former wife’s evidence the day before, he would have been utterly convinced that she was genuine in the way in which she had approached the matter.  If the child is obliged to engage in some form of relationship with his father, then it will undoubtedly have an effect on him to some extent.  The precise effect of that relationship and what happens is a matter that can only be the subject of speculation.

7. Dr J has formed the view that it is possible and reasonable that these things can occur without causing the child any harm.  I rely upon her judgment in this matter because of her particular expertise.

8. There are, unquestionably, issues of expense in relation to the time that the child spends with his father - if he spends time with his father.  However, they are not matters which either party has presented as being an insuperable obstacle.

9. The capacity of each of the parents to provide for the child’s needs, including his emotional/intellectual needs, is another factor.  I have no doubt that Mr Seneviratne is quite capable of providing for the child’s educational needs.  I am less satisfied about his capacity to provide for the child’s emotional needs. 

10. It is a matter only he can deal with by putting his mind to it.  He has given indications that he wishes to do so.  He has undertaken courses to try to improve his behaviour.  I am satisfied that he has gone out of his way to pursue this matter when, in some ways, the easiest thing would have been to forget about it, to walk away.  In so doing, I believe he has demonstrated at least the willingness to create the capacity properly to react and to relate to his son.  I hope that that is proved to be so in due course.

11. I have looked also at the question of the cultural needs of the child, in accordance with subsection (g).  I am satisfied that in  whatever time he spends with either parent, he will have the advantage of access to his cultural background, and in particular, to the activities that will enrich his life and give him roots to his heritage and to the land from which his parents came.  There is nothing in this section that would cause me to make a determination in one way or the other.

12. The child is not an Aboriginal or Torres Strait Islander child.

13. I also have commented about the attitude of each of the parents towards their responsibilities of parenthood and I do not propose to say anything further.

14. I have noted the proceedings in relation to family violence, as the Act requires that I do.

15. I regard the decision that was made by the magistrate as being unconvincing but nothing much turns on that fact, and I simply mention it on the basis that I have taken it into account in my overall consideration of the matters before the court.

16. Finally, one of the factors I am to take into account is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.  It is tempting to say that I should make orders that would at some point be subject to review.  My difficulty with any such order is that it encourages one party to make the Orders not work and I think that is a serious mistake.  It is important that everyone goes forward with a degree of certainty as to what is to happen, and accordingly, the orders I make will be for all practical purposes final orders.

17. Let me say, however, and I say this with a great deal of sincerity and gravity.  No orders relating to children can ever be permanent because no one can predict what the future will bring.  the child still has another eight years or thereabouts as a “child” in the legal sense.  During those eight years, he will graduate from being a very articulate and intelligent little boy (which is what he is at the moment) to being a young man.  He will go through different stages of development.  He will have different needs at different times.  Those things which are appropriate for him to do at the moment are not things which are going to be appropriate for him or which he will want to do when he is a lot older, or even a little bit older.

18. He is not going to want to spend time playing on a PlayStation (though he might) until he is 18.  He is not going to want to do things like riding on merry go rounds or necessarily going to IMAX Studios and things as he gets older.  He is going to have other and contradictory commitments, both with his friends, in due course, no doubt, with his girlfriends, and with his peers, in things that he needs to do.  It is important ultimately that his parents are able to cooperate to the extent of acknowledging that he, as a young man, is going to have different needs from those which apply at the present time.

19. The second matter which arises is this.  Nothing in life is ever entirely predictable.  One of the unfortunate features of matters in this Court is that the orders relate to things that are going to happen in the future, not to things that have happened in the past.  If parties sue each other in relation to a breach of contract or claiming that some person has been negligent towards them, the Court determines what has happened in the past and a decision is made about what damages might flow from it.

20. In this Court, I look to what has happened in the past to inform me as to what might happen in the future.  But in the end, it is still a “might happen in the future”, it is not “what will happen in the future”, and no Court order can ever, ever, create certainty as to what will occur.  All I can do in the circumstances is to provide a framework for the parties, the parents and those who are close to the child, to enable them to work towards what might be in the end in his best interests.

21. I have taken account of the matters I have indicated in coming to my decisions about it and I do not expect that that is by any means a comprehensive indication of what will be best for the child.  In fact, what is best for the child is something that can only be known most appropriately by his parents, and it is they and those who are closely associated with him, who have that responsibility.

22. Even if I make an order, that gives to the child’s mother sole parental responsibility, that does not absolve any person, any parent, from an obligation towards his or her child.  Even if the determination of things relating to the child’s best interests are going to be made primarily by his mother, his father cannot absolve himself from the responsibility that arose the day that the child was born.  He will always be his father and it will always be necessary for him to apply himself towards looking at what is in the child’s best interests.

23. I briefly mention, because I am obliged to do so by authorities in this Court, that I have taken into account the matters under s 60CC(4) which relate to the extent to which either parent has fulfilled or failed to fulfil responsibilities about their child. For the reasons I have said, I am satisfied that both parents have done what they can.

24. I propose now to indicate the orders that I am going to make.  I will be following this practice.  I will read the orders through because the orders are not exactly what either parent sought from me and they incorporate some matters which, upon consideration, I have felt were appropriate to provide certainty or to resolve what I regarded as potential areas of dispute before they arose.  I do not pretend that these Orders are likely to cover every situation that relates to the child for the future and it is not intended that they should.  However, the Orders are the Orders.  They are not draft Orders.  They are the Orders that I am making and I propose that they will apply.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate:

Date: 

Appendices[51]

[51] All appendices are set out as quotations and do not contain any alterations or corrections to errors contained within the original text.

Appendix 1

Orders sought at Hearing by the Applicant Mother

3.1That all previous Orders be and are hereby discharged.

3.2The Mother, [MS PILIMATALAVA], have sole parental responsibility for the child, [B], born … 2001 (“the child”).

3.3Nothwithstanding Order 2 above, the Mother will inform the Father, [MR SENEVIRATNE], about:-

i.All serious medical issues relating to the child;

ii.The names of the child’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending; and

iii.Details about his schooling.

3.4The Mother will authorise and direct the following to provide information about the child to the Father upon his request:-

i.The child’s school, his school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality; and

ii.The child’s doctors, dentist, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time-to-time.

3.5The Mother will consider consulting and discussing with the Father major decisions affecting the child’s well-being.

3.6Notwithstanding the above Orders, the Mother will have the right to make decisions about the child’s long-term care, welfare and development.

3.7That the child spend time with the Father in accordance with his wishes, and in the event that the child expresses a wish to spend time with or contact his Father in the future the Mother will facilitate such time or contact.

3.8The Father is hereby prohibited from contacting the child and the Mother, save that he may send birthday and Christmas cards and gifts to the child at a Post Office address to be provided by the Mother, and the Mother will encourage the child to accept such cards and gifts from his Father.

3.9That pursuant to Section 11(1)(b) of the Australian Passport Act 2005 an Australian passport may be issued to the child, [B], born … 2001, and the requirement in Section 11(1)(a) of the said Australian Passport Act 2005 for consent of the Father to the issue of the passport is accordingly dispensed with.

3.10That pursuant to Section 65Y(2)(b) of the Family Law Act 1975 the Mother be at liberty to travel overseas with the child at such times as the child is in her care pursuant to these Orders.

3.11That in the event that the Mother intends to travel overseas with the child she will provide written notification to the Father of this intention to travel within 21 days of the proposed date of departure and provide details of the itinerary for each overseas trip.

Appendix 2

Final orders sought by the Respondent Father

1. That the child (DOB … 2001) live with the Mother.

2. That the child spend time with the father each fortnight or as determined by the Court.

3. Such other Orders as set out in the attached document marked attachment “A”.

Attachment “A”

1. That all previous orders be discharged

2. That the child, [B] born … 2001 (“the child”), live with the mother.

3. That the Father, in joint consultation with the mother be responsible for making decisions in relation to the long term care, welfare and development of the child and in particular, and except for situations of emergency, the mother and the father shall have joint responsibility for any decisions concerning the child in relation to:

   3.1Medical surgical operations;

   3.2Medical treatment other than for routing medical checkups and treatments for minor ailments;

   3.3Dental treatment requiring hospitalisation and/or surgery; and

   3.4Physiotherapists and alternative medical treatment; and

   3.5The parties shall adhere to and follow any current medical treatment ordered for the aforesaid child unless otherwise agreed between them upon medical advice and/or by order of the court

4. After an initial period of telephone contact and limited face to face contact as the Court deems fit the father spend time and communicate with the child as follows:

   4.1Each alternate weekend from 6:00pm Friday until 6:00pm Sunday, provided that if either the Friday or the Monday is a Public Holiday in the Australian Capital Territory:

   4.1.1That time will commence at 6:00pm on Thursday and conclude at 6:00pm on Sunday if the Friday is a Public Holiday

   4.1.2That time will commence at 6:00pm on Friday and conclude at 6:00pm on Monday if the Monday is a Public Holiday

   4.2On the child’s birthday by telephone between 6pm and 8pm

   4.3On each Wednesday between 6pm and 8pm

   4.4On the Father’s birthday by telephone between 6:00pm and 8:00pm

   4.5During gazetted school holidays each year as follows:

   4.5.1    At the conclusion of ACT term 1 – 1 week; and

   4.5.2    At the conclusion of ACT term 2 – 1 week; and

   4.5.3    At the conclusion of ACT term 3 – 1 week

   Such week to be the first week of the holidays in even years and the second week of the holidays in odd years

   4.6During the Christmas school vacation as follows:

   4.6.12011/2012 for 2 weeks in the second half thereof and on the same basis, each alternative year thereafter; and

   4.6.22012/2013 for 2 weeks in the first half thereof and on the same basis, each alternate year thereafter

5. In order to facilitate the father spending time with the child pursuant to Order 4, changeover shall take place as follows:

   5.1From such date as the Court Orders, the Mother will transfer the child to the [N Town] Child Care Centre, [N Town], or such other place as agreed between the parties for changeover each alternative contact period and the Father will be responsible for other transport

   5.2From such date as the Court Orders, the parties will share travel arrangements by meeting at the [N Town] Child Care Centre, [N Town], for changeover each time or such other place as agreed between the parties.

6. Overseas travel

   Either party (“the travelling parent) be at liberty to take the child overseas to Country I or any destination covered by the Hauge Convention, for a period of no more than 8 weeks per year always taking into consideration the child’s schooling requirement and upon provision of no less than 1 month’s written notice to the other of his or her intention to remove the child from the Commonwealth of Australia for such purposes.

   6.2The travelling parent is to provide the other parent with indirect emergency contact details whilst she and the child are away.

   6.3If the Mother is the travelling parent, she is to notify the Father not less than 1 month in advance, the date of the last weekend that the Father will spend with the child prior to that overseas travel and the date of the first weekend that the Father will spend with the child after that overseas travel.

   6.4If the Mother is the travelling parent she will ensure that not more than 10 weeks will elapse between the Father spending time with the child pursuant to paragraph 6.3

   6.5The travelling parent shall facilitate the other parent speaking to the child by telephone at 7:00pm Wednesday in the time zone where the child is located.

7. That neither party permit the child to undertake any activities other than those to which the child is presently committed without the consent, in writing, of the other if those activities interfere with the first party’s residence periods with the child, including but not limited by, for example:-

   7.1Attendance at sleep-overs; or

   7.2Attendance at other parties or functions

8. For the purposes of Compliance with Orders 7 hereof, the parties shall provide to the other no less than Seven (7) days notification in writing in relation to any activity or the likes to which they and/or the child, or any of them, seek to undertake. In the event that the other party declines for the child to undertake that activity, then the party providing notice shall not permit the child to undertake that activity

9. Non denigration:

   9.1The Father shall not denigrate nor permit any other person to denigrate the Mother or Members of the Mother’s family within the hearing of the child.

   9.2The Mother shall not denigrate nor permit any other person to denigrate the Father or Members of the Father’s family within the hearing of the child.

10. The mother shall provide written authority so that the father may contact the pre-school or day care centre or school that the child attends, speak to staff or teachers and be provided with a copy of all reports and correspondences relating to the child. The father shall be at liberty to attend any function or event involving the child, but shall not approach the mother. The father is to be listed as a parent or guardian and be contacted in case of emergency.

11. The parties are to inform each other of all medical, physiotherapy, counselling treatment and the like received by the child whilst in each parties care and each party shall be permitted by the other to consult with the providers of the said treatment.

12. From the time when the child enters year 2 of primary school, the Father is to have email contact with the child if the child has access to email facilities.

13. Communication Book:

    13.1The parties are to use a communication book at changeover to discuss any issues relating to the short term and long term care, welfare and development of the child and each party shall ensure that the communication book is sent along with the child at every changeover.

    13.2The communication book shall not be used to denigrate either party or for officious purposes

14. Fathers Day/Mother’s Day

    14.3In the event that Mother’s Day falls on a weekend the child would ordinarily spend with the father, the child will return to the Mother’s care at 7:30pm on the Saturday.

    14.2.1 In the event that Father’s Day falls on a weekend the child would ordinarily spend with the Mother, the child will return to the Mother’s care at 7:30pm on the Saturday.