Raki and Perez Varela

FAMILY COURT OF AUSTRALIA

RAKI & PEREZ VARELA

[2013] FamCA 122

FAMILY LAW - CHILDREN – With whom a child spends time – Best interests of the child – Where the parties agree equal shared parental responsibility is appropriate –Where the mother alleged that the father has acted in a sexually inappropriate manner towards the child – Where the allegations are unsubstantiated – Where unsupervised time with the father would not expose the child to an unacceptable risk of abuse – Where the child needs an adequate opportunity to develop a relationship with the father but delay overnight time to enable the mother to settle her concerns and become confident that the child was not being exposed to risk of improper or damaging behaviour – Where the child shall live with the mother – Where limited unsupervised time with the father is appropriate in the short term graduating to overnight time and holiday periods

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3)

B and B (1993) FLC 92-357
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
M v M (1988) FLC 91-979
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Mr Raki

RESPONDENT:

Ms Perez Varela

INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

FILE NUMBER:

PAC

6845

2007

DATE DELIVERED:

1 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

2, 3 & 4 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hugh Byrne Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Winfield

SOLICITOR FOR THE RESPONDENT:

Jacqui Griffin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

That the following parenting orders are made in relation to the child R born … May 2007 (“the child”).
That all previous parenting orders are discharged.

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the child.

Live with

That the child shall live with his mother.

Spending time

That the child shall spend time with his father as follows:
(a)from 10:00 am to 2:00 pm each Saturday for four weeks commencing on 9 March 2013;
(b) thereafter from 10:00 am to 5:00 pm each Saturday for twelve weeks;
(c)thereafter from 12:00 noon Saturday to 12:00 noon Sunday each alternate weekend for six weeks;
(d)thereafter from 9:00 am Saturday to 5:00 pm Sunday each alternate weekend for six weeks;
(e)thereafter from 5:00 pm Friday to 5:00 pm Sunday each alternate weekend and each Thursday, the father to collect the child from school (on Thursdays) and deliver him to his mother at 8:00 pm at McDonalds;
(f)in addition to the above, after six months from the date of these orders, for half of all school holidays;
(g)on Father’s Day from 9:00 am to 5:00 pm;
(h)on the child’s birthday from 10:00 am to 5:00 pm except if it is a school day in which case from after school to 8:00 pm;
(i)from 12:00 noon Christmas Eve until 3:00 pm Christmas Day in even numbered years;
(j)from 3:00 pm Christmas Day until 3:00 pm Boxing Day in odd numbered years;
(k)the father’s time with the child is suspended on:
(i)Mother’s Day from 9:00 am to 5:00 pm.
(ii)From 12:00 noon Christmas Eve until 3:00 pm Christmas Day in odd numbered years.
(iii)From 3:00 pm Christmas Day to 3:00 pm Boxing Day in even numbered years.
(l)changeovers are to occur at B Contact Centre for the first twelve months from the date of these orders provided the Centre is available. If the Contact Centre is unavailable at any times and after the first twelve months, changeovers are to be at the McDonalds nearest to the mother’s home, whichever she elects.

Communication by telephone

That the father is to telephone the mother’s home each week to speak to the child on Mondays and Wednesdays between 5:30 pm and 6:30 pm. The mother is to make the child available to speak with the father at such times. The parties are to keep each other advised of their landline and mobile telephone numbers.

School

That the mother do all things necessary to ensure that the father is permitted to attend any school events at the child’s school at which parents are normally permitted to attend.
That the mother do all things necessary to ensure that the father is entitled to receive copies of school reports, school newsletters and any other documents normally made available to parents from the child’s school.

Medical

That the mother advise the father of any medical treatment of the child, other than minor illnesses, advise him of all details of the child’s treating doctors or therapists and authorise such doctors or therapists to provide the father with full information about their treatment of the child.

Specialist Assistance

That the father continue to attend upon his general practitioner and take medication as prescribed for as long as recommended.
That the father attend a parenting after separation course.
That the father attend for individual counselling to assist him regarding the ongoing care of the child.
That the mother attend upon a psychiatrist with a view to considering medication for her anxiety and suspiciousness and to follow the recommendations of such psychiatrist.
That the mother attend upon a counsellor other than Ms A and Ms C for counselling for post traumatic stress disorder and to help her cope with any Court orders for the child to spend time with his father.
That the parties are to provide a copy of Dr E’s report to their psychiatrist, general medical practitioner and counsellor upon whom they attend pursuant to these orders.

Courtesy and Restraint

That neither party is to denigrate the other or allow other persons to do so in the presence and hearing of the child.
That neither party is to physically discipline the child.
That the child not be taken to any counsellor without the agreement of both parties.

Other

That pursuant to s 62B and s 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raki & Perez Varela 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 SYDNEY

FILE NUMBER: PAC 6845 of 2007

Mr Raki

Applicant

And

Ms Perez Varela

Respondent

REASONS FOR JUDGMENT

R, (“the child”) is five years of age. His parents are Mr Raki and Ms Perez Varela. For convenience I shall refer to them as “the father” and “the mother” respectively.
The child’s parents have been unable to agree about the final parenting arrangements for him. Accordingly, they have asked the Court to determine such arrangements.
The parents agree that they shall continue to have equal shared parental responsibility for the child and that the child shall live with his mother. The issue keenly in contest between the parents is the circumstances under which the child should spend time with his father.

Applications

The father supported the orders as sought by the Independent Child Lawyer (“ICL”). These would be to the following effect:
·The child spend time with his father:
-from 10:00 am to 2:00 pm each Saturday for six weeks;
-thereafter from 10:00 am to 5:00 pm each Saturday for six weeks;
-thereafter from 12:00 noon Saturday to 12:00 noon Sunday each alternate weekend for eight weeks;
-thereafter from 9:00 am Saturday to 5:00 pm Sunday each alternate weekend for eight weeks;
-thereafter from 5:00 pm Friday to 5:00 pm Sunday each alternate weekend and each Thursday, the father to collect the child from school (on Thursdays) and deliver him to his mother at 8:00 pm at McDonalds;
-in addition to the above, after six months from the date of these orders, for half of all school holidays;
-on Father’s Day from 9:00 am to 5:00 pm;
-from 12:00 noon Christmas Eve until 3:00 pm Christmas Day in even numbered years; and
-from 3:00 pm Christmas Day until 3:00 pm Boxing Day in odd numbered years.
·The father’s time with the child is suspended on:
-Mother’s Day from 9:00 am to 5:00 pm;
-From 12:00 noon Christmas Eve until 3:00 pm Christmas Day in odd numbered years; and
-From 3:00 pm Christmas Day to 3:00 pm Boxing Day in even numbered years.
·Changeovers are to occur at B Contact Centre for the first twelve months from the date of these orders provided the Centre is available. If the Contact Centre is unavailable at any times and after the first twelve months, changeovers are to be at the McDonalds nearest to the mother’s home, whichever she elects.
·The father is to telephone the mother’s home each week to speak to the child on Mondays and Wednesdays between 5:30 pm and 6:30 pm and the mother is to make the child available to speak with the father at such times and the parties are to keep each other advised of their landline and mobile telephone numbers.
·That the mother do all things necessary to ensure that the father is permitted to attend any school events at the child’s school at which parents are normally permitted to attend.
·That the mother do all things necessary to ensure that the father is entitled to receive copies of school reports, school newsletters and any other documents normally made available to parents from the child’s school.
·That the mother advise the father of any medical treatment of the child, other than minor illnesses, and advise him of all details of the child’s treating doctors or therapists, and authorise such doctors or therapists to provide the father with full information about their treatment of the child.
·That the child not be taken to any counsellor without the agreement of both parties.
·That the father continue to attend upon his general practitioner and take medication as prescribed for as long as recommended.
·That the father attend a parenting after separation course.
·That the father attend for individual counselling to assist him regarding the ongoing care of the child.
·That the mother attend upon a psychiatrist with a view to considering medication for her anxiety and suspiciousness and to follow the recommendations of such psychiatrist.
·That the mother attend upon a counsellor other than Ms A and Ms C for counselling for post traumatic stress disorder and to help her cope with any Court orders for the child to spend time with his father.
·That the parties are to provide a copy of Dr E’s report to their psychiatrist, general medical practitioner and counsellor upon whom they attend pursuant to these orders.
·That neither party is to denigrate the other or allow other persons to do so in the presence and hearing of the child.
·That neither party is to physically discipline the child.
On the other hand the mother sought orders which would involve a much more limited regime of time spent by the child with his father than that sought by the ICL and the father.
In summary the mother sought orders for the child to spend time with his father:
·Until April 2014 on a supervised basis at B Contact Centre at times arranged by the Centre;
·Between April and November 2014 each Saturday from 9:00 am until 1:00 pm unsupervised;
·Between November 2014 and April 2015 every Saturday from 9:00 am until 5:00 pm unsupervised;
·Between April 2015 and October 2015 each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday, from 3:00 pm Christmas Day until 5:00 pm Boxing Day and for the second half of the Christmas holidays unsupervised;
·From October 2015 each alternate weekend from 6:00 pm Friday until 5:00 pm Sunday, one half of each school holiday period commencing from the first holiday period in the 2015 school year, 24 hours over Christmas, specified times on the child’s birthdays, Father’s Day, certain orders in respect of medical attention, schooling matters and communication.

Background

The mother (45 years of age) and the father (41 years of age) were born respectively in South America and northern Europe.
The mother arrived in Australia in 1999 and the father arrived in Australia in 2003.
The parties met in 2004 or 2005 and soon after commenced a relationship.
They commenced cohabitation in early 2007 and separated on a final basis in August 2008.
There is one child of the marriage, R who was born in May 2007. He is five years of age.
In early 2007 the father purchased a home at D Street, Suburb H (“the Suburb H property”).
The mother alleged that the father sexually abused the child from August to November 2007. I shall refer to this matter again below.
The parties first separated on 6 December 2007 when the mother left the home at Suburb H with the child. She had complained to the police about the father’s behaviour towards the child. She was referred to the Department of Human Services, Community Services (“DoCs”).
She and the child moved to rented accommodation at F Street, Suburb G (“the Suburb G property”).
The father filed an application for final orders and supporting affidavit in the Federal Magistrates Court. Proceedings were subsequently dismissed on

22 February 2008 for want of prosecution.
In late February/ early March 2008, there was a reconciliation and the mother, the child and the maternal grandmother (who was visiting from overseas) moved back into the father’s residence at Suburb H for a period of six months.
In August 2008 the mother and child returned to the Suburb G property when the maternal grandmother returned to South America.
In January 2009 the father, mother and child went on a four day holiday to Newcastle. The mother complained about the father’s behaviour towards the child. When the parties returned to Sydney the mother made a complaint to the police. I shall refer to this matter again below.
In August or September 2009 the father was contacted by the

Joint Investigation Response Team (“JIRT”). It is clear that the father cooperated with JIRT, who subsequently closed their file.
In December 2009 and January 2010 the father spent time with the child on several occasions supervised by the mother.
The father filed his Initiating Application and Affidavit in support on

10 May 2010.
The mother filed her Response, Affidavit and Notice of Child Abuse on

26 July 2010.
On 13 August 2010 orders were made appointing an Independent Children’s Lawyer (“ICL”) and the matter was Magellan identified.
The Magellan Report was released on 21 September 2010.
Interim orders we made on 10 December 2010 by Stevenson J to the effect that the child live with his mother and spend time with his father each Saturday from 10:00 am until 3:00 pm supervised on an alternating basis by

Ms I and Mr J.
On 1 October 2011 the mother alleged that the child returned from a contact visit with the father with a little red mark and scratch on his lip. The child explained that he hit the wall at his father’s house because he did not see the wall. On 2 October 2011 the mother alleged that the child, without her prompting, said that his father had hit him “with his hand in the bedroom”. The mother said that when she brought this up with the father he became verbally abusive.
In October 2011, the mother alleged that the child said to her “daddy thinks my tummy is his pillow and he gives me kisses and he likes to touch my penis”.
The mother spoke to her doctor and reported the matter to DoCs.
On 21 November 2011 the father filed an Amended Initiating Application.
On 12 January 2012 the mother filed an Application in a Case for orders to permit her to take the child to South America as her mother had become ill and passed away. The Application in a Case was dismissed on 18 January 2012.

Credit

The father

The father gave his answers to questions in a forthright, responsive manner. He was able to make numerous concessions. His evidence was given in what I would describe as a precise, rather than relaxed, manner. He said he feels passionately about matters and that certainly came through during his oral evidence.
Overall I have the impression of a co-operative and honest witness although at times the father was somewhat forceful and garrulous.

The mother

It has to be borne in mind that the mother was assisted by a Spanish interpreter. My own experience of the mother on earlier occasions has been that she has a very good working knowledge of the English language. But in relation to some of the more sophisticated concepts involved in the matters immediately before the Court she might have some difficulty. In my view, it was clearly appropriate that she was assisted by the interpreter.
The mother appeared to have some difficulty with the process of

cross-examination. On many occasions she simply failed to answer the question.
There were various aspects to this. The most frequent was that apparently she regarded many of the questions as providing opportunity for her to say things peripheral to the subject raised but which she presumed would support her own case. Time and again she was asked by those cross-examining her to bring her mind back to the question. On many occasions counsel and solicitor simply gave up. Often questions which demanded an answer unfavourable to her case were evaded.
In relation to questions about her views on when she thought it might be in the child’s interest to remove the requirement for supervision, the mother did not offer an opinion. This approach was maintained even after I interjected and insisted that she let us have some idea. This suggested to me that, possibly as a consequence of her anxiety condition, she was incapable of making any concession at all about this.
Overall I regard the mother as an unimpressive witness. Where her evidence conflicts with that of the father I have no hesitation in accepting the father’s version.

The Applicable Law in Parenting Proceedings Involving Allegations of Child Sexual Abuse

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. I shall refer to this in more detail soon.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of

MRR v GR
(2010) 42 Fam LR 531.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… 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 High Court went on to say at page 77,081 as follows:-
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.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrived at the relevant test saying as follows, still at page 77,081:
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.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
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.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, the parents agree that they shall continue to have equal shared parental responsibility for the child and that it is in the child’s best interests to reside primarily with his mother and spend time with his father.
In these circumstances, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of his parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine;
-occasions and events that are of particular significance to the child; and
·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.
Before I turn to consider the statutory considerations which guide the Court in determining what is in the best interests of the child, I propose to consider the major issue in these proceedings. This is whether unsupervised time between the child and his father would expose the child to an unacceptable risk of abuse.

Sexual Abuse Allegations

The mother alleged that the father has acted in a sexually inappropriate manner towards the child. She alleged that such behaviour by the father has been as follows.
In her affidavit sworn on 21 July 2010 the mother deposed as follows at paragraphs 10a., b. and c.:
10.The following incidents occurred between August and November 2007:
a.[The father], returned home from work dressed in a suit, I greeted [the father] at the door and walked to the kitchen, [the father] put [the child] in the high chair and then [the father] said “I will cook dinner tonight”. I went to change and left [the child] in his high chair in the kitchen with [the father]. When I returned to the living room, I saw [the father] leaning over [the child] on the couch and as I walked in [the father] stood up and was only wearing this [sic] underwear at this stage. I said to him words to the effect of: “You told me you were going to cook, what are you doing?” [The father] appeared aggressive then walked away.
b.In about October 2007, [the father] and I were sitting in the living room watching television while [the child] was sleeping in his room. I went to get [the child] from his room and I placed him in between [the father] and I on the couch. I went to the kitchen to get something and when I returned, [the child] was sitting on [the father’s] lap and when I picked up [the child] from [the father’s] lap, I saw that [the father’s] zipper was undone. I said to [the father] words to the effect of: “Why is your zipper undone?” [The father] responded by yelling: “What the hell?” [The father] then started yelling other words to me which I did not completely understand, I recognised some words to be swear words. [The father] then went to the study and I remained in the living room with [the child].
c.In about November 2007, I was in the kitchen preparing something and [the father] was with [the child] on the sofa. I could see [the child’s] face when I turned around as [the father] was carrying him with [the child’s] face over [the father’s] shoulder. I walked back into the living room and saw that [the child] was no longer upright in [the father’s] arms but was lying face down in his lap. [The father] was wearing a T-shirt and boxer shorts at this stage. When I picked [the child] up from [the father’s] lap, I saw that there was a wet spot on [the father’s] boxer shorts. As soon as I picked [the child] up from [the father’s] lap, [the father] quickly covered the wet spot on his boxer shorts with his hand. I questioned [the father] about this and said words [to] the effect of: “What’s going on?”, [the father] responded as he often does when I have questioned him about these incidences [sic] in the past, by becoming verbally aggressive and leaving.
In relation to these incidents, the father denied that he had acted in an inappropriate manner towards the child. He said that he regarded the mother’s behaviour towards him on each of these occasions as being irrational.
The father said that because of the mother’s concerns he tried to appease her by not wearing boxer shorts, shorts or track suit pants when with the child. He said that when he tried to discuss with the mother her concern about this she responded that her concerns were that she did not like it or that it was not hygienic to wear shorts when the child was with him.
The father said that he started to wear jeans and long sleeved shirts when he was at home but that even such measures were insufficient to allay the mother’s concerns.
In relation to the mother’s complaint that the father would have the zipper on his pants undone, he said that he was unsure whether his zipper was undone on the above occasion. He said when he was relaxing at home after work he often undid his belt and the buttons or zipper on the pants fly to ease pressure on his stomach which he described as “getting too big”.
The mother made a complaint to the police. She removed herself and the child from the former family home at Suburb H on or about 6 December 2007. The Police applied for an Apprehended Violence Order (“AVO”) in favour of the mother. An interim AVO was in place for a few months. Then the application was dismissed by the Local Court in March 2008.
The mother also complained about another incident. As indicated above, the father took her and the child for a holiday to Newcastle for approximately four days in January 2009. The mother said that the father had been asking to spend time with the child and informing her that he was going to take legal action to obtain time with the child. She said that he said that next time he would not be inviting her to attend but that the Court would permit him to spend time with the child without her accompanying him.
The parties and the child were staying at a hotel. At paragraph 24 of the mother’s same affidavit she deposed as follows:
… While we were on the holiday, I ensured that I was with [the child] whenever [the father] was there except on one occasion when I fell asleep on the bed for a short period. During this time, [the child] was left by himself with [the father]. I woke up because [the child] was crying loudly. When I woke up I saw [the child] sitting in [the father’s] lap. [The father] was wearing shorts and a T-shirt. [The child] had his legs wrapped around [the father’s] waist. When I woke up and heard [the child] crying, I cried out and [the child] then came to me. When [the father] stood up, I could see that his zipper was undone and that his penis was erect. [The father] covered himself by putting his hands in front of his lower body. I carried [the child] and walked away to calm him down. [The father] walked to me and offered some chocolates. I said to [the father]: “You can’t deny it.” The following day we returned to Sydney.
The father said that the purpose of the holiday was an attempt by him to endeavour to reconcile with the mother. He denied that he said what the mother asserted and said that he did try to discuss the child’s future care arrangements with the mother. He said that he informed the mother that if she did not give him time with the child he would have no option other than to go to court.
The father also denied that his zipper had been undone and that his penis was erect. The father also denied that he had covered himself by his hand. When cross-examined about this the father said that if what the mother was alleging in this regard had occurred why would she have stayed in the hotel room that evening. He said that this allegation was only made by the mother after he had commenced instructing a lawyer.
I note that Dr E also explored this matter with the mother. In relation to the mother’s assertions that the father’s zipper was open and that she had seen his penis, Dr E asked the mother “what did you see exactly?”. He said that the mother was not clear about what she had seen and subsequently said that she had seen the tip of the penis.
There were other allegations by the mother. After the orders were made for time between father and child to be supervised by the father’s friend,

Mr J, the mother said that the child had said to her that despite Mr J being present the father and child had been in the shower together. The father denied this. He said that he has a swimming pool and after the child swims in the pool he takes a shower. The father said that he goes to the shower to check on the child two or three times and that when the father does so he is fully dressed.
I note that when the JIRT officers interviewed the child on 27 July 2011 the child said that his father wears a jacket when he showers him.
I prefer the evidence by the father about this matter over that of the mother.
Dr K recorded in July 2011 that the child had said to his mother that he “had to wash Dad’s penis and that his penis was big” and that the child said that he is beaten by his dad.
At the JIRT interview on 27 July 2011, the child said that he never touches his Dad’s penis. Also at the said JIRT interview the child said that there was nothing that he does not like about his Dad. Towards the end of the interview the child said that his mother told him that his dad hit him. The mother denied saying this to the child.
The JIRT officers assessed the child’s vulnerability to risk of significant harm in his father’s care as being low. They were also concerned that the mother might be coaching the child about the allegations and they spoke to her about this which she denied.
Dr E, the Court Expert, has also considered the mother’s complaints in the context of having interviewed the parents and child about these and the many other matters relevant to the best interests of the child.
The mother informed Dr E that she thought that sexual abuse was happening and that she did not accept the JIRT conclusions of no confirmation of abuse. She informed Dr E that there was not an adequate investigation by the authorities.
The child informed Dr E that nothing bad had happened to him. He said that he had never been touched in a bad way. Nobody had ever hurt him. He said there were no problems and he was not worried. He said that there was no bad touching. He enjoys spending time with his father.
Dr E said that he found no indication that there had been any abuse events between the father and the child. He said that there was no indication of any shame or guilt which one would expect if there had been sexual abuse or adverse events. There was no sign of abnormal sexualised behaviour or behavioural disturbance.
Dr E has expressed the view that the child would not be at risk in the unsupervised care of his father and that it would be in the child’s interests to be afforded much more opportunity than he has had to date to further develop the close and loving relationship he has with his father.
I shall discuss these matters further below. At this point, suffice it to say that I am satisfied that for the child to spend unsupervised time with his father would not expose the child to an unacceptable risk of abuse.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act and are as follows:

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

Dr E said that the child indicated that he would like to spend more time with his father. He said that the child was developing well both cognitively and emotionally for his age. While the Court would not place much weight on the expressed views of a 5 year old child, in my view the child apparently wanting to spend more time with his father is consistent with him having a good relationship with his father.

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

Dr E said he formed the view that the child had a good relationship with both parents and wanted to continue to relate to them.
Dr E said that the child liked spending time with his mother and that there were no problems with her. Dr E said that he believes the child has a strong attachment to his mother.
Dr E said at interview that the child and his father appeared to be very happy to see each other. The child was excited to see his father. Dr E believes that the child has a strong secondary attachment to his father.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The father said that there have been many occasions when he has telephoned the mother’s residence to speak with the child not later than 7:30 pm on Mondays and Wednesdays. He said that on approximately half these occasions after the mother answered the call and realised it was him on the phone she disconnected the call. Then he said that he has telephoned outside the agreed times. I accept the father’s evidence about this.
The father said that the mother would not permit him to take the child out in the pram. He said that he was not allowed to hold his son because the mother became “really uncomfortable” about him holding his son. He said that often at home he would dress himself in boxer shorts and T-shirt only so as to be comfortable and because he had grown up in a cold climate.
As indicated elsewhere in these Reasons, the father said that the mother became very concerned about him holding the child when he was so dressed. Therefore he started to dress more fully.
Dr E said (at page 20 line 725) at some level despite the mother’s overvalued ideas of fear about the father she does want to support a relationship between the child and his father as demonstrated by the fact that she invited the father to come and spend time with him.

In my view, the mother recognises that the child and his father have a close and loving relationship. She appears to want to support them having a relationship but appears also to have developed a fear that the child is not safe with his father and therefore someone else needs to be present at times when the child is with his father. As indicated elsewhere, when I asked the mother when she thought it might be appropriate for the child not to require supervision she was unable to make any commitment to such a situation other than to push any such time well away into the future.
In my view, this augurs somewhat poorly for the Court to have much confidence that the mother will be able to support the child in having a relationship with his father.
But Dr E also expressed his concern that because of the mother’s fear about the child’s safety with his father it is likely that she will have great difficulty supporting a relationship between the child and his father and would be likely to make further allegations against the father.
On the other hand, there appears not to have been any difficulty in the father supporting the child’s relationship with his mother.

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

The current arrangement is that the child spends time with his father only under supervision. Dr E said that if this was changed to unsupervised contact, he believes that this would strengthen the relationship between the child and his father, and that the child would thrive from such a change. He said that the major downfall would be that the mother’s anxiety would be likely to increase with the likelihood of her making further allegations of abuse against the father.

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

There are no practical difficulties in my view.

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

The father said that the mother had done a really good job in raising the child apart from being very unsupportive of the child having a relationship with him.
Dr E said the following about the mother.
I wasn’t able to find any evidence of delusions or hallucinations. However, I believe that her anxiety and the fact that she’d suffered probably
post-traumatic stress symptoms and her heightened degree of anxiety and fearfulness, particularly being in a strange culture without immediate support has led her to develop an excessive degree of anxiety and fearfulness. Without any reality base or any support she has then developed an entrenched view or overvalued idea about the father wanting to sexually abuse the child. However, I don’t believe it’s delusional in nature. It’s at a point where she does hold the belief but her inconsistency is that she then invites the father and allows him to see the child and seems to naively believe that if he wanted to sexually abuse the child that her presence would prevent it.
Dr E also said that he was unable to detect psychiatric disturbance in the mother. He said she was able to function adequately. He said that he believed that suffering post traumatic stress disorder following the home invasion probably had a major impact on the mother. He said that this, in combination with language difficulties and dislocation from her immediate family has probably predisposed the mother to becoming overly suspicious.
Dr E said that from an AXIS II perspective he believed the mother has high trait anxiety and that this has led her to be overly sensitive and suspicious, particularly about the father.
Dr E also said that the child was developing well in his mother’s care.
Ms C noted that the mother had a long history of anxiety disorder.
In relation to the father, Dr E said that during the interview he was very intuitive and engaging with the child. He said that there was no cognitive disturbance.
The father said he had experienced some difficulty with anxiety because he has to make professional presentations in English for work and as English is his second language he has found this to be nerve-racking. His general practitioner doctor prescribed Lexapro for his anxiety and the father has found this to be helpful.
Dr E said that he formed the view that the father was a capable, caring parent who would be able to take over the role of primary parent for the child if required. He said that the father was not an unacceptable risk to the child. He said that after the relationship broke down the father remained extraordinarily patient and even handed with the mother. He said that the father has coped extraordinarily well with being accused of sexual and physical abuse of the child. He said he believed the father presents as a very impressive and extraordinarily tolerant person who has coped amazingly well under extremely adverse conditions. He said that there was no evidence to suggest that the father had a personality disturbance.

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

As indicated above, the child is only five years of age.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not relevant.

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

Both parents are very committed to the child.
The father described the day of the child’s birth as the best day of his life. He is very committed to having a relationship with his son and has spent a considerable amount of money in his endeavour to have the Court assist him to maintain his relationship with the child.
The mother is quite responsible in her parenting of the child apart from the limitations imposed by her anxiety.

Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

As indicated above, the mother said that in October 2011 the child said that his father had hit him with his hand.
The father denied that he had ever hit the child. He said that he has never needed to discipline the child because his behaviour is excellent.
There is no suggestion in any other material before the Court of the child having been hit by his father. I accept the father’s evidence about this matter. It is clear that the child and his father have an excellent relationship and that the child has been excited when his father has arrived at the Contact Centre to spend time with him. There is no evidence whatsoever of the child being in any way fearful of his father.

Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

There is no family violence order.

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

It is not clear to me that any particular order would be least likely to lead to further proceedings.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

In late 2001, well before the parties met, the mother was assaulted in her home during the night. An intruder armed with a knife chased her around her apartment, held a knife to her throat and beat her repeatedly. Despite her screams nobody came to assist her. Eventually the intruder left when she hit him over the head with a stick. She called the police and attended hospital with lacerations and bruises. She suspected that the intruder was going to rape her. She thought the intruder was her former husband.
Clinical psychologist Ms A concluded that the mother was suffering from post traumatic stress disorder and co-morbid clinical depression following this incident.
As indicated above, Dr E believes this incident and the likely consequent post traumatic stress disorder are significant factors in the mother developing her anxiety condition and in her fear that the child is not safe with his father.

Submissions

Independent Children’s Lawyer

It was submitted that the graduated process involved in the orders sought by the ICL acknowledges the legislative requirement for the child to be able to have a meaningful relationship with his father but also takes account of the mother’s anxiety about the child spending unsupervised time with his father. In relation to the allegations of child sexual abuse or molestation, the ICL accepted the opinion of Dr E, namely that the father does not present as an unacceptable risk to the child.
It was submitted that, as Dr E observed, the mother has done a good job of parenting the child apart from her anxiety and suspiciousness about the father’s behaviour towards the child. It was submitted that the child is developing well and the mother must take the credit for this. The ICL accepted that, as Dr E reported, the mother has a genuine concern about the child being at risk of some sexually inappropriate behaviour by the father towards him.
It was submitted that there was some further evidence adding weight to Dr E’s finding about the mother’s anxiety. This was in the form of the reports by Dr M and also by Ms C. Ms C noted that the mother had a long history of anxiety disorder and the issues that the mother had at the time included that the father was controlling, that the mother was very distressed and it was suggested that the mother see a psychiatrist which she did but she was reluctant to take any medication. There was also a report by Ms A noting a March 2001 report in which the mother was asked about any issues for her as a child of inappropriate behaviour and the mother indicated that a neighbour had indecently exposed himself to her. It was submitted that although the mother said that she was okay, an incident like that might have caused the mother later to have her concerns about inappropriate sexual behaviour towards her own child.
Learned counsel referred to each of the specific allegations about sexual behaviour made by the mother which I have referred to above. It was submitted that in 2008 the mother was having misgivings about the correctness of her fear about the father’s behaviour towards the child in 2007, that is that he had a wet patch on his boxer shorts. The mother said that whatever uncertainty she might have had about the context being sinister on that occasion was clarified by the father’s behaviour in January 2009 at Newcastle. That is, she has since held the view that this behaviour was abusive.
It was submitted that there were a number of difficulties with the mother’s interpretation of events on that occasion. These included that it would seem to be unusual for the father to be behaving in some inappropriate way when the mother was present in the room albeit apparently asleep. It was submitted that it would seem to be unusual upon the mother moving towards the father that he would stand up facing the mother if his penis was erect and outside his clothes when she said that she challenged him on the previous occasion he had covered himself with his hands. It was submitted that it would seem to be unusual that if something untoward had occurred that the mother would stay on in the same apartment with him for the rest of the evening when she could have left particularly because if she was sleeping then she would not be available to protect the child from the father. It was also submitted that it would seem to be unusual that in circumstances where the mother had previously contacted the police she did not contact the police on this occasion. It was also submitted that it would seem to be unusual that after the 2008 incident the mother resumed living with the father for a time, they had a holiday to Far North Queensland and then subsequently to Newcastle. It was submitted that this behaviour by the mother did not rest well with her alleged serious concern that the father had acted inappropriately towards the child.
It was submitted in addition that in relation to those things which the mother asserted the child had told her during 2011, at the JIRT interview, the child denied any touching by the father towards him or by him to the father and said that the mother had told him that he was not going to see his father again and that his father hits him.
Dr E had asked the child whether there had been any touching by his father and the child denied anything of that nature. It was submitted that the observations by Dr E and also by those at the Contact Centre about the very positive and happy interaction between the child and his father demonstrated that the child enjoyed seeing his father and that there was no avoidance of physical contact by the child towards his father. In fact the Contact Centre records indicated that he runs to his father and Dr E said that he had been excited to see his father. It was submitted that this does not sit well with a father who is alleged to have abused the child or who has been hitting the child.
It was submitted that on balance the ICL supported the findings of Dr E. Learned counsel went into considerable detail referring to relevant parts of Dr E’s report which it is unnecessary to refer to in detail because I have done so in other parts of these reasons.
In relation to the child’s views, learned counsel for the ICL submitted that although the child is very young it was significant that he told Dr E that he wanted to spend more time with his father.
Learned counsel for the ICL referred to Dr E as saying that in his opinion the child has a strong attachment to his mother and a strong secondary attachment to his father.
Learned counsel then referred to Dr E’s opinion of the respective capacities of each of the parents, the mother having been regarded as a capable parent apart from her fear about the father’s behaviour towards the child, the father having been regarded by Dr E as a capable parent who, if need be, would be competent to assume the responsibility as primary parent.
Learned counsel for the ICL expressed a concern that over time and in the context of unsupervised time spent between the child and his father, the mother might not be able to restrain herself from further allegations against the father or possible contraventions of court orders. Accordingly, the ICL thought that it might be appropriate for interim orders only to be put in place at this stage.
It was submitted that in the event that the mother found herself unable to support unsupervised time between the child and his father, ultimately the Court might be faced with no alternative, in order to endeavour to preserve a relationship between the child and both parents, than having to move the child’s primary residence from mother to father.

The father

As indicated above, the father supported the orders as sought by the ICL. Mr Byrne, solicitor for the father, submitted that the father had a strong view that orders be made on a final basis. It was submitted that the father has been involved in litigation about these matters now over some four years and that he has spent in excess of $40 000 in his endeavour to be able to have a relationship with his son. He was concerned that if the orders were of an interim nature only, inevitably he would have to return to Court for further litigation which he is most anxious to avoid.
It was submitted that although the father’s preferred position would be for the child to remain in his mother’s primary care, in the event that there was a breakdown of the orders the father stood ready, willing and able to assume the child’s primary care.
It was submitted that initially the father sought orders that the child live primarily with him. However, since reading Dr E’s report, particularly the recommendation that the child should live primarily with the mother and have a graduated regime of time spent with the father, the father has accepted this.
It was submitted that the father was most reluctant to attend at the mother’s residence for changeover. No doubt he would be fearful of further allegations. Initially, he would prefer changeover at the B Contact Centre, his second preference being for changeover at the McDonalds nearest the mother’s residence. If changeover had to be at the mother’s residence, the father would accept the mother having an independent person there. He would not wish to have changeover there without another person being present.
It was submitted that there could be no question of the father’s commitment to his son demonstrated by his patience and perseverance with the proceedings, by his unfailing commitment to paying child support and his commitment towards paying towards the child’s school fees in future. The father said that the day of the birth of the child was the happiest day in his life and that he only wants what is best for his child. There can be no question about the father’s ability to comply with Court orders demonstrated by his compliance with an AVO which had been made for a limited period of a few months.
It was submitted that, as Dr E had opined, the father was a capable parent and, if need be, would be able to take over the primary care of the child. It was submitted that the father has demonstrated that he is a very active parent who loves doing things with his son and that clearly as Dr E indicated it is most important for the child to be able to have opportunity to have a meaningful relationship with his father.

The mother

It was submitted that the mother agreed broadly with the recommendations of Dr E for a gradually increasing program of time spent between the child and his father. It was submitted that it was important for this to be supervised for some time. It was submitted that this was because the mother’s concerns should be acknowledged. It was submitted that relevant to this was the fact that the mother is undergoing counselling with Ms A, that the father needs to undertake a parenting course and that Dr E recommended that each of the parties undertake some counselling.
It was submitted that the mother’s situation is a difficult one. As Dr E had observed, the mother’s ideas that the child has been sexually abused were not delusional. It was submitted that the father needs to alter his behaviour to some degree and that the mother needs counselling to assist her to adjust to the parenting arrangements.
It was submitted that both parents have given great attention to the child, that the father has always paid child support, that there was no argument about which school the child will attend. It was submitted that the mother would support changeover at B Contact Centre for a period and then at McDonalds.
It was submitted that supervision should be ordered and that it phase out over a period of some 18 months. It was submitted that this would enable appropriate counselling to take place for each of the parents.

Discussion and Conclusion

The judgment which has to be made includes whether it is in the child’s interest for his time spent with his father to be supervised or unsupervised. In my view, the mother has made her position very clear. This is that she maintains her belief that something sinister of a sexual nature has been perpetrated by the father on the child. Despite the JIRT investigations, Dr E’s clear view that the child is not at an unacceptable risk in the unsupervised care of his father and despite the quite detailed ventilation of all relevant matters during these proceedings, the mother finds herself incapable of moving away from what Dr E regarded as being her firm belief.

Accordingly, the only parenting arrangement for the child with his father which can be countenanced by the mother is for the child to spend time supervised at a contact centre. When the arrangement was put in place for the father’s friend to undertake the responsibility of supervising his time with the child, the mother found fault with this.
Dr E said that in the event that the current supervised time arrangement continued, he believed that the child would continue to develop normally for the short to medium term. Dr E did say however that in the long term he considered that the supervision would be likely to break down and he thought that there would be a high risk that the child would lose his relationship with his father. He said that this would be a great loss for the child. But there are other difficulties also with time spent at the supervised contact centre. Although the reports are excellent, clearly the opportunity for the child to develop his relationship with his father is quite constrained. The child also feels some sense of frustration that being confined to the contact centre does not permit him to be able to explore a much broader range of pleasures and adventures with his father. Clearly as time goes on it would be in his interests to be able to have opportunity for a normal and unconstrained relationship with his father.
On the other hand, as indicated above, Dr E said that in the event that regular unsupervised time could be spent by the child with his father,

Dr E believed that this would strengthen their relationship and that the child would thrive from such opportunity. But he said that the major downfall of regular unsupervised time with the father was that the mother’s anxiety would be likely to increase and that it would be likely that there would be further allegations of abuse made by her against the father.
As indicated above, the child and his father have a close, loving relationship. As also indicated, the records of the B Contact Centre indicate that when the father has arrived to spend time with the child, the child has been excited. He has run to his father and jumped up into his arms with excitement on greeting. The child has said he would like to spend more time with his father although caution must be taken in considering this matter. The father is a capable parent who is very committed to doing the best he can possibly do to promote his son’s opportunities in life.
In relation to the mother’s allegations, as indicated above, I have considered these in some detail and have come to the same view as Dr E that if the child was to spend significant unsupervised time with his father this would not constitute an unacceptable risk to him.
The requirements of the legislation are clear in terms of the objects as set out above and particularly the benefit to the child of having a meaningful relationship with both parents. While it would be possible for the child to be able to continue to have a relationship with his father notwithstanding the constraints of spending time only at the supervised contact centre, it is doubtful that this would serve the requirement for a meaningful relationship.
The Court must also consider the second of the primary considerations in s 60CC(2). This is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Dr E said that in the event that the only time between the child and his father was supervised at the centre, as I have indicated above, he thought there was a high risk that the child would lose his relationship with his father. Dr E went on to say not only would that be a great loss for the child but in fact it could have serious adverse effects for his mental health in the long term and could predispose him to emotional and relationship difficulties as a teenager and young adult. Clearly the Court should endeavour to protect the child from such an outcome.
What pitfalls could there be if the Court was to order regular unsupervised time between the child and his father? Having decided that unsupervised time between the child and his father would not expose the child to an unacceptable risk, the major pitfall in ordering this would be that, as Dr E said, the mother’s anxiety would be likely to increase. Dr E said that this would make it likely that the mother would make further allegations of abuse against the father. In this respect Dr E said that he believed that the mother’s over-valued ideas are the significant problem in the allegations of abuse. He said that therefore, further spurious allegations would be likely to occur with a possibility that the child’s relationship with his father could again break down.
In these challenging circumstances Dr E recommended that at this stage the child should remain primarily resident with his mother. Dr E also recommended that there be a gradually increasing regime of time spent between the child and his father. Dr E said that this could commence with a supervised period of time and gradually move to unsupervised time. He thought the appropriate period over which it would increase would be the next six months. He thought that with a gradual increase the mother would become more able to cope with her anxiety when the child was absent from her care. Dr E thought that after six or seven months overnight time between the child and his father would be in the child’s interests.
With respect to Dr E, in my view, what he recommends represents a sensible balance between the need for the child to have adequate opportunity to develop his relationship with his father and the desirability of not moving so quickly to overnight time that the mother would be unable to settle her concerns and become confident that the child was not being exposed to risk of improper or damaging behaviour.
Having said this, in view of the amount of time since Dr E prepared his report now some ten months ago, in my view it would be appropriate to move directly into limited unsupervised time between the child and his father. Learned counsel for the mother has indicated that the mother would find a new counsellor who could assist with her anxiety at times when the child would be in the care of his father. Clearly this is important and was something which Dr E indicated should be regarded by the mother with priority. But in my view, care needs to be taken to achieve the recommended gradual increase carefully recommended by Dr E. In my view it would be inappropriate to move to overnight time for some months yet.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 1 March 2013.

Associate:

Date: 1 March 2013

[2013] FamCA 122

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