Reisner and Reisner (No. 2)

FAMILY COURT OF AUSTRALIA

REISNER & REISNER (NO. 2)

[2010] FamCA 678

FAMILY LAW – CHILDREN – With whom a child spends time – Sexual abuse allegations against paternal grandfather

APPLICANT:

Ms Reisner

RESPONDENT:

Mr Reisner

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1065

2007

DATE DELIVERED:

4 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

STEVENSON J

HEARING DATE:

14,15,16,19,20,21 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hogan

SOLICITOR FOR THE APPLICANT:

Barry & Nilsson

COUNSEL FOR THE RESPONDENT:

Mr Reisner in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McMillan SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Neill

Orders

That all existing parenting orders in relation to the child …, born on … October 2002 (‘the child’) be discharged.
That the child live with the mother.
That each parent have sole responsibility for making decisions as to the child’s day-to-day care, welfare and development while she is in the care of that party pursuant to these orders.
That the child spend time with the father as agreed but failing agreement as follows:
4.1during school term time each alternate weekend from the conclusion of school on Friday, or Thursday if that Friday is a public holiday, until the commencement of school on Monday, or Tuesday if that Monday is a public holiday
4.2from the conclusion of school on Wednesday until the commencement of school on Thursday in each week during school term time
4.3from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2010 and each alternate year thereafter
4.44.4.1   from 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2011 and each alternate year thereafter
4.4.2   subject to orders 4.3 and 4.4, for the first half of all school holidays in 2010 and each alternate year thereafter and for the second half in 2011 and each alternate year thereafter
4.54.5.1    from 3:00pm until 7:00pm on the child’s birthday if that day is a weekday
4.5.2    from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday
4.6from the conclusion of school or 3:00pm until 7:00pm on the father’s birthday
4.7from 9:00am on Fathers Day until the commencement of school on the next day, if the child is not otherwise in the father’s care pursuant to these orders
If the child is in the care of the father, she will spend time with the mother as follows:
5.1from 9:00am until 1:00pm on the child’s birthday if that day is a Saturday and from 1:00pm until 5:00pm if that day is a Sunday or from 3:00pm until 7:00pm on a weekday
5.2from the conclusion of school or 3:00pm until 7:00pm on the mother’s birthday
5.3from 9:00am on Mothers Day
6.1 6.1.1 That the parties effect changeovers at the child’s school on days when she is attending school.
6.1.2 That, on non-school days, the parent with whom the child is to spend time will collect her at the commencement of all such periods and the other parent will collect her at the conclusion thereof.
7.1 That each of the parents give all necessary consents and authorities to enable the other to:
7.1.1obtain copies of school reports, newsletters and photographs and any information relating to the child’s educational progress and extracurricular activities
7.1.2obtain any information in relation to the child’s physical or emotional wellbeing from a treating health professional
7.1.3obtain any information regarding a sport or hobby in which the child participates
8.1 8.1.1 That the father personally supervise all time during which the child comes into contact with the paternal grandfather.
8.1.2That the father ensure that the child is at no time alone with the paternal grandfather.
That the parties do all things necessary to cause the child to attend upon a psychologist or social worker, which person may be a Family Consultant other than Mr Y, for the purpose of an explanation of these orders and for provision of advice to the parents as to the reintroduction of the child to the paternal grandfather.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1065 of 2007

MS REISNER

Applicant

And

MR REISNER

Respondent

REASONS FOR JUDGMENT

The Proceedings

Ms Reisner (‘the mother’) and Mr Reisner (‘the father’) are the parents of a little girl, who was born in October 2002 and is now seven years old. They agreed that the child will live primarily with her mother and spend regular time with her father. They also agreed that they should have equal shared parental responsibility for their daughter.
A principal issue in the proceedings is whether the child should have any contact with her paternal grandfather, Mr Reisner Snr (‘the paternal grandfather’). The mother maintained that the child should have no contact with the paternal grandfather on two broad bases. Firstly, she alleged that he sexually abused the child prior to 19 January 2007. Further, she submitted that there is an unacceptable risk that the paternal grandfather will sexually abuse the child in the future.
Secondly, the mother submitted that contact with the paternal grandfather will expose the child to an unacceptable risk of harm. It was contended that this risk stems from the paternal grandfather’s psychiatric condition; his past threats to harm the mother and others and his negative attitude towards her.
The father proposed that the child have contact with the paternal grandfather only under his supervision. Both the mother and the Independent Children’s Lawyer (“the ICL”) resisted this proposal. They suggested that the father lacks the capacity to assert himself against the paternal grandfather and adequately protect the child.

Procedural History

In April 2010 an earlier hearing was aborted, after several days of evidence, and a new trial fixed to commence before me on 12 July 2010. On 27 May 2010 I conducted a case management event by video link. The parties had previously been asked to consider what use, if any, I should make of the transcript of the aborted trial. I did not request that the parties agree to the use of any part of the transcript and I would not have countenanced its use, for any purpose, without the full and free consent of all parties. I was content to rehear all of the evidence but I was conscious of the cost to the parties, in both financial and emotional terms, of taking that course.
On 27 May 2010 I was informed that the parties agreed that I read the transcript of the evidence of the following witnesses:
Case for the Applicant Mother
1.Ms Reisner (the mother)
2.Ms K (the child’s play therapist).
It was agreed that there would be cross-examination of the mother only as to issues which had arisen since October 2009. In fact I allowed more broadly-based cross-examination on the application of counsel for the ICL, who had not previously appeared in the proceedings. Ms K was not required for further cross-examination.
Case for the Respondent Father
1.Mr Reisner (the father)
2.Mrs Reisner Snr (the paternal grandmother)
3.Ms A (the father’s estranged second wife).
It was agreed that there would be cross-examination of the father and the paternal grandmother only as to issues which had arisen since October 2009. Again, I permitted more wide-ranging cross-examination on the application of counsel for the ICL. Ms A was not required for further cross-examination.
Case for the ICL
1. Ms W (a psychologist who consulted with the paternal grandfather).
I read these extracts only and no other part of the transcript.
On 27 May 2010 I was informed that the parties agreed that I hear afresh all oral evidence from the paternal grandfather and the Family Consultant, Mr P. Accordingly, I did not read the transcript of the evidence of these two witnesses.
I was also informed that the father intended to call evidence from the following witnesses:
1.Dr C (a psychiatrist who assessed the paternal grandfather)
2.Professor E (a psychologist who critiqued the police interview of the child)
3.Dr I.
The father did not call any evidence from Dr I. By consent he tendered the affidavit and report of Dr C, which had been read by the Family Consultant.
Counsel for the mother objected to the evidence of Professor E. I admitted only pages 10-16 inclusive of his report dated 13 May 2008, but struck out two sentences on page 14. Professor E was not then required for cross-examination.
On 27 May 2010 the ICL indicated that she would call evidence from the following witnesses:
1.Dr M (a psychiatrist who assessed both parents)
2.Mr T (a psychologist who assessed the child’s ability to give evidence in criminal proceedings against the paternal grandfather)
3.Dr N (a psychiatrist who consulted with the child)
4.Ms L (a social worker who prepared reports dated 9 January 2005 and 23 July 2007 for the Federal Magistrates Court).
Evidence from these witnesses came by way of reports annexed to their affidavits. Only Mr T was required for cross-examination.
The ICL also indicated that she would tender, by consent, the following subpoenaed material:
1.videotape of an interview of the child by Detective Constable R on 24 January 2007, together with two transcripts
2.notes of Dr G, a psychiatrist who treated the paternal grandfather in 2007
Detective Constable R and Dr G were not required for cross-examination. Dr G’s notes were included in a tender of the records of P Private Hospital.
On 27 May 2010 the solicitor for the mother indicated that she had filed an application for a certificate pursuant to the Federal Proceedings (Costs) Act in relation to the previous trial. This application was determined by May J on 15 July 2010.
The mother relied on the following affidavits:
1.The mother sworn on 30 September 2009
2.The mother sworn on 15 July 2010
3.Ms K sworn on 6 October 2009.
The father relied on the following affidavits:
1.         The father sworn 18 April 2007
2.         The father sworn 10 June 2007
3.         The father sworn 25 June 2007
4.         The father sworn 1 October 2009
5.         The father sworn 1 October 2009
6.         The father sworn 1 October 2009
7.         The father sworn 28 June 2010
8.         The father sworn 29 June 2010
9.         The paternal grandfather sworn 29 September 2009
10.      The paternal grandmother sworn 30 September 2009
11.      Ms A sworn 1 October 2009
12.      Dr WE sworn 29 June 2010
13.      Professor E sworn 25 June 2010
The father appeared without legal representation. He conducted his case efficiently and displayed the utmost courtesy to the court at all times.
Counsel for the mother objected to the affidavit and report of Dr WE, who is the paternal grandfather’s current treating psychiatrist. Dr WE made some extraordinary statements in his report, examples of which appear below. I admitted his report but excluded some passages to which objection was properly taken. Dr WE was cross-examined by counsel for the mother and the ICL.

Background

The father, who is now 35, and the mother, who is now 36, married and began to live together in 1998. They separated on 29 January 2003, when their daughter was only three months old.
On 29 September 2005 the Federal Magistrates Court made orders that the child live with her mother and spend time with her father each alternate weekend; each Wednesday night and for block periods during school holidays. The child spent this time with her father until January 2007, when the allegations of sexual abuse arose.
After the separation the father went to live with his parents in B. In July 2008 he moved in with Ms A, whom he married in December 2008. They separated in May 2009 and the father returned to live with his parents.
In her affidavit sworn on 30 September 2009 the mother said that she was concerned that the child “was experiencing redness in her vulva” from the age of approximately twelve months. In cross-examination on 21 October 2009 she said that she had no suspicions of sexual abuse initially.
The mother took the child to see general practitioners at the local Family Practice on several occasions from 2004. Some of these consultations were in relation to redness in the child’s vaginal area (exhibit 5).
The medical notes for a consultation in November 2004 read:
“In nappies. Mum noticed red rash vagina. Today came home from father’s place where she stayed Sat. night. At father’s place lives with his m and p. Brother visits at times. Doesn’t know if he visited.
This morning daughter says ‘sore’ and vaginal redness noted. No bruising or splits or abrasions.
Mum says one other time, 12/12 ago, the day after being with dad, had sl. tinge of blood vagina.
→didn’t do anything about it as she had no suspicions.
Daughter tends to be constipated after being there w’end.
Rang Child Protection Unit Mater.
Told if m suspicious enough – to report to police. Mum isn’t suspicious enough to do this.”
The mother was questioned about this note in cross-examination on 21 October 2009. She said:
“…I recall that there was – [the child] had just returned back from a visit with her father and we were – all our family were there, and I changed her nappy when she returned and noticed the blood stains and all the females in the family came up and had a look at the nappy, not at [the child], and we were all a bit in shock and did not know, sort of, what to do.”
She said she saw on the child’s nappy two blood stains, approximately the size of a five cent coin and roughly two centimetres apart. She said that she had no suspicions of sexual abuse at that time.
The mother took the child to the medical centre on 23 June 2005, apparently because of bruising on her thigh. The notes read: “Mum noticed bruising on inner thigh at 10:15am today. No known cause of this. Mum thinks it probably was caused by [the child] hanging on…”
When cross-examined about this note on 21 October 2009, the mother said:
“I remember there was 5, almost 5 distinct, or 3 – quite a few distinct little round dots as though someone had been holding her very tightly…”
She said further: “yes, yes. I feel like – it was a product of abuse, that someone was forcefully holding her.”
On 27 September 2005 Dr KA referred the child to Dr ST, a psychiatrist. The referral letter stated:
“Thank you very much for seeing this little girl who has longstanding issues with seeing her father. I have known this girl for a long time and lately I have found her to be more withdrawn.
She has always been a relatively anxious girl but I am not sure if these changes are age-related or related to visiting her father once a week.
I do not want her to get worse especially because of her young age.
Can you please assess and give your opinion?”
On 27 March 2006 Dr KA referred the child to Dr N, a psychiatrist. The referral letter stated:
“Thank you very much for seeing this little girl who has had various issues in her life. She is highly anxious and her mother is getting extremely worried. Can you please assess and manage?”
Dr N saw the child on six occasions between 31 March 2006 and 9 February 2007. In her report of 19 October 2007 Dr N said:
“[The mother] brought [the child] to see me because of her concerns about [the child’s] anxiety and challenging behaviour. She reported marked separation anxiety at day care and Sunday school, need for rigid routines and increased use of imaginary friends. [The child] was reported to cry at length with any change in routine, was extremely selective about what clothing she would wear and had become aggressive and defiant when any limits were set on her. [The child’s] play had also become quite obsessional, lining up soaps and rocks…
It seemed likely that at least some of [the child’s] behaviour and anxiety were due to the many changes she had experienced and the apparent ongoing difficulty for her parents in communicating about her needs. It was decided that given [the child’s] degree of distress, she should be withdrawn from day care and returned to play group which she could attend with her mother. The emphasis would be on helping [the child] to feel safe and secure in order to facilitate her confidence in trying new things. The goals were to reduce [the child’s] distress and anxiety, improve her sense of security, reduce her need for rigid routine and prepare her for kindergarten the following year…”
In her affidavit sworn on 30 September 2009 the mother set out a number of comments which the child allegedly made to her about the paternal grandfather. She said:
“122. [The child] was about two years old when she made the first comment to me about the paternal grandfather, whom she refers to as ‘papa’. This was after spending time with her father. I recall that I was bathing [the child] and as I was drying her off she said to me, in words to the effect, ‘Papa tickles my bottom’. When she said this, I thought she was talking about her bottom and not her vagina.
123.    I was not immediately alarmed by the comment. I did not consider the comment sinister. [The child] was only two years old.
124.    After this date [the child] would on a regular basis raise this topic with me. On occasions I would be playing with [the child] after she had had her bath. There were occasions when I would move to tickle her as part of our play and she would put her hands up in a defensive motion and say ‘no don’t touch me, don’t tickle me’.
125.    I then started to become concerned.
126.    I recall an occasion between two to two and a half years that [the child] and I were sitting on the lounge and [the child] said to me, ‘Papa and I have a secret’. I replied, ‘do you just, what is the secret’. [The child] did not answer me.
127.    [The child] often makes random and isolated comments to me about a variety of subjects. This includes comments about the paternal grandfather. For example, she has said to me, ‘Papa and me play games under blankets’.
128.    When [the child] was approximately two and a half years, I took her to see Dr [D] because she was continuing to tell me that ‘Papa tickled her bottom’. She was also coming home from time to time with a red vagina and I could not ascertain the cause of this. I was concerned that someone was interfering with her.”
The mother said that the child made “a disclosure of a sexual nature about the paternal grandfather on 19 January 2007”. In her affidavit of 30 September 2009 she said:
“96. [The child] had returned from spending time with father on 18 January 2007 and spent that night with her cousins, […], at my mother’s house. The following morning my mother drove with [the child] and her cousins to my house and we went to the [the local] Pool for the morning.
97.      At approximately lunch time we all returned to my mother’s home. I went into a room where the three girls were playing and noticed a stained pair of underpants on the floor. I realised that the stain was at the front of the underpants and not the back. I took them to my mother to query with her what she thought the stain was. My mother commented to me, in words to the effect, ‘it looks like those of a young girl menstruating’. My mother questioned whether they belonged to [the child’s cousin] who was ten years old at the time.
98.      The underpants belonged to [the child]. On the recommendation of my mother I kept the underpants. During the police investigation the underpants were given to the police for forensic investigation. The DNA results were clear. Constable [R] informed me of the results. She was not surprised. [The child] did not disclose that there was penile penetration.
99.      On the afternoon of 19 January 2007, after observing the dark reddish-brown stain on her underpants, I put [the child] on to the bed and checked her vaginal area. I noticed that it was very red. The following is the conversation that occurred:
[Child] – ‘oh it’s sore, don’t touch it, it’s tickling me’
Me – ‘well I’ll have to have a look because you are very red there. Is it sore?’
[Child] – ‘yes, cause Papa touched me down in there’. Papa is the name given to the maternal grandfather.
Me – ‘did he really?’
[Child] – ‘yes he did’.
Me – ‘okay then’.

The mother permitted the father to collect the child that afternoon. She returned to the mother on Sunday 21 January 2007. In her affidavit the mother said:
“When [the child] had a bath that night I observed another stain on her underpants. This was similar to the stain from the first underpants but slightly lighter in colour. The underpants on this occasion were green with a little bow on the front. [The child] was wearing a pink singlet and brown shorts when she was returned to me by the father.”
On 22 January 2007 the mother took the child to see Dr D at the local Family Practice. She said that she showed Dr D a pair of the child’s underpants with “some staining on the inside of the pants”.
Dr D’s notes of this consultation read:
“Mum worried re daughter and interference by dad.
Brother encouraged her to go to police.
Brought in [child’s] underpants.
On Thursday, concern re underpants stain.
Friday mum looked at her vagina, looks red in vagina.
Different from when with mother.
Last time mum noticed her red below when in nappies and aged two.
Now out of nappies.
Never has stains on her underpants at home.
[The child] has told her that her grandpa tickles her on her bottom.
For a long time.
Now she realises it is her vagina.
She has shown mum how grandpa tickles her through the undies and under the undies.
Said that he does it after her bath and tickles her bottom in her bedroom.
Plays with her in bed, tickles her.
Ongoing anxiety re not wanting to go to Dad’s place.
Obsessive behaviour in having to place objects in particular places.
When came home Friday on return she was very anxious ‘not her normal self’.
Rang Child Protection Unit Mater.
Told to ring […] Department of Child Safety to fill in a yellow incident report form.
Discuss fully with mother re evidence.”
Dr D made a notification to the Department of Child Safety on 23 January 2007.
On 24 January 2007 Detective Constable R interviewed the child. The video recording and two transcripts of this interview were in evidence (exhibit 1). I will refer to the contents of this interview below.
On the same day, the child was medically examined at the Mater Children’s Hospital. This procedure revealed that the child’s hymen was intact.
The mother spoke to the child about her disclosure following the police interview and medical examination. In her affidavit sworn on 30 September 2009 she said:
“109. After the police interview, I was lying with [the child] putting her to bed. [The child] was talking to me about the events of the day, the doctor and the examination. I said to [the child], ‘what does Papa do to you? [The child] replied ‘he pushes down hard like that’. [The child] pushed her hand down on to her vagina. I said to [the child], ‘did it hurt?’ to which she said ‘yes’. I asked [the child] ‘did you tell Papa it hurt?’, to which [the child] replied ‘yes. So then he tickled it like this to make it better and then he did it hard again’.
110. She indicated with her hand how the paternal grandfather tickled her. [The child] pushed her hand towards her genital area. [The child] again showed me with her hand/fingers how he tickled her. [The child] moved her hand to her genital area and wiggled her fingers around her vagina. She also poked her fingers directly into her vagina, over her underpants.
111. [The child] has also told me that Papa had tickled her on the breast area. I responded by promising [the child] that she would never see ‘Papa’ again. I told [the child] that I was ‘very very sorry’ about what he had done to her.
The mother was asked about this conversation during cross-examination on 21 October 2009. She said:
“I had actually asked her ‘what does Papa do to you?’. We were talking about the doctor and the procedure. I was just sort of trying to calm her down after the day’s event, because the doctor’s examination was quite intrusive, and I said to her ‘what does Papa do to you?’ and she said, ‘he pushes down hard like that’. And then I said, ‘what does he – does that hurt?’ and she said ‘yes, but then Papa goes down like that to make it better’ and I said – and then she just said, ‘and then he goes down hard like that’ and pushed down really hard into her vagina and poked her finger into her, like, into the opening.”
On 12 April 2007 Detective Constable R charged the paternal grandfather with indecent dealing with a child under twelve years of lineal descent. The mother gave evidence during the committal proceedings. She described how she developed concerns that the child was being sexually abused in these terms:
“…since [the child] was about one year old certain factors just didn’t measure up. When [the child] returned from contact visits, for instance, inside her vagina, the majority of visits when she returned, was red. Her mood, when she returned from the contact visits was just something different to what I’d ever seen before. That’s all that sort of – she was having nightmares, certain – that’s all I can think of at the moment, then on that Wednesday…”
The mother went on to describe the events of Wednesday 17 January 2007 and Thursday 18 January 2007. She said that the child returned from an overnight stay with her father at 8:00am on Thursday morning and slept for around two and a half hours. She slept over at the home of her maternal grandparents on Thursday night. On Friday, the mother saw a brown stain on the underpants which the child was wearing on Thursday.
On Friday afternoon the mother checked the child’s vaginal area and observed that “it was the reddest I’ve ever actually seen it”. She said that this conversation took place:
“[Child]: Oh, it’s sore. It’s – you’re tickling me, but don’t touch it.
Mother: Well, sweetheart, is it sore?
The mother then said in her evidence:
“I must have said, ‘it’s quite red, is it sore” something along those lines and she said to me:
“yeah, Papa touched me down in there”.
The mother then said:
“…it was not unusual for me to check down below because it’s a habit I had to form, not on every occasion, but I did have to because of my concerns prior to it, had to be diligent in checking down below.”
The mother then described what happened after the father returned the child on the following Sunday afternoon. She said that when the child had a bath, she saw on her underpants “another brown mark – not as severe as what I had seen on the other occasion, which had been the Friday, but it – it was – a brown stain was there”.
The mother then described her conversation with the child on the night of the police interview and medical examination. She said that she asked the child:
“Well, what does Papa do?”
and the child said:
“Papa pushed down hard like that”
The mother said:
“and then she sort of flipped back up and she had her underpants on though while she was doing this and I said ‘oh, does that hurt?”
And she said:
“Oh, yes.”
And I said:
“Did you tell Papa it hurts?”
And she said:
“Yes, I do, but then he tickles me like this to make it better.”
The mother then described the child’s hand gestures, saying:
“…she started at the top where her crease it. This is – right – like just explaining it, okay. She started like where there’s the crease of the vagina and said ‘he goes down like that’. And she actually put her fingers right down and said – came up to the top of the crease and sort of gave it a flick when she came to the top.”
A clinical psychologist, Mr T, met with the child in the company of the mother on 12 February 2007 and alone on 19 February and 26 February 2007. He had been instructed by Detective Constable R “to assess and prepare a report regarding [the child] and to specifically address her ability to present information in a court matter”.
In his report dated 19 March 2007 Mr T wrote:
“Across my contact with [the child], she presented at times as a quiet and reserved young girl. She could at times provide thoughtful and articulate responses to formal and structured questions. [The child] was well able to focus and attend to the tasks presented to her. She was well able to tell me or indicate when she did understand an instruction or if she felt that she could not do a task or answer a question. [The child] was co-operative and articulate throughout.”
Mr T reported specifically on his assessment of the child’s sense of “truth” and “lies”. He wrote:
“During my final session with [the child], I spoke with [the child] about the issues of ‘the truth’, ‘lies’, ‘the right thing’ and ‘the wrong thing’. [The child] appears to have a good sense of these concepts and was able to explain aspects of the concepts in articulate ways for her age level. She has a strong sense of consequences for actions, and is well aware of the idea of consequences if individuals ‘lie’ or ‘do the wrong thing’. [The child] is aware of what a ‘promise’ means. I also spoke with [the child] about guessing about questions she does not know the answers to. She told me that it is ‘not good to make up things’. She was able to recall aspects of previously experienced events such as past birthdays and Christmas. However she tended to recall aspects of these events ‘piece by piece’, and there did not appear to be particular sequence in her recall. Occasionally she had to be asked if she could recall more about the event, and she was able to tell me towards the end that she could not.”
Mr T assessed that the child was “able to appear in court and provide information in relation to a criminal matter”.
After the paternal grandfather was criminally charged on 12 April 2007, he was granted bail. The conditions were that he have no contact with either the child or the mother.
In March 2007 the child began to attend upon a play therapist, Ms K, whom she saw thirty one times. There were weekly visits between 8 March 2007 and 25 October 2007 and then four sessions between 19 May 2009 and 26 June 2009.
In her report dated 5 October 2009 Ms K indicated that “[the child] was referred to me in March 2007 by her mother, [Ms Reisner], for therapeutic support following allegations that [the child] had disclosed sexual abuse by her paternal grandfather. This has always been refuted by [the child’s] father [Mr Reisner].” Ms K met once with the father and twice with the mother.
In cross-examination on 22 October 2009 Ms K said:
“[in May 2007] it was my opinion, and that would be advice that I would give to any parents where there was suspected or alleged abuse of a child, because we know that by the child actually being put back into those circumstances can potentially re-traumatise the child. So it was my opinion that, from what I had observed in [the child] up to that point, there was clear anxiety issues for her and I cannot be clear what that anxiety was about. She also had issues around trust and there were some issues around safety for her that came out in her sessions. So for me it seems very clear that it was much better, because of [the child’s] young age and because of her inability to be clearly articulate about what may or may not have happened, it seemed very sensible to take the precautions not to put her back into that environment, when she could maintain a relationship with her father away from that environment.”
In her report Ms K wrote:
“In my last contact with [the child] it appeared that she had made significant progress emotionally and that her main concern was related to the relationship between her parents. I advised [the mother] of the need to present a united front to [the child] as this seems to be negatively affecting [the child]. I believe this has been actively addressed with the parents now spending some limited time together in [the child’s] presence at handover time.
In order for [the child] to reach her full potential I feel it will be imperative for [the father] and [the mother] to work together and to share a civil relationship in order to meet [the child’s] needs. If [the child] feels she has to choose between her parents, this will undoubtedly place her in a difficult position and will have an adverse affect on her emotional development.”
In 2007 the paternal grandfather was admitted to P Private Hospital on four occasions. He consulted Dr G, a psychiatrist, and Ms W, a psychologist, during 2007.
The paternal grandfather was first admitted to P Hospital from 27 April 2007 until 5 June 2007. Dr G’s “psychiatrist admission notes”, dated 27 April 2007, indicate that the paternal grandfather discussed the allegations and criminal charge with him. He noted:
“Pt has been careful to not have personal dealings like bath, dress, etc”.
Dr G’s notes of 27 April 2007 continued:
“Severely angry.
Saw Viet Vet counsellor who was helpful.
Cop was an arrogant cow. Wants to sue police.
No detail given of precisely what and when he is supposed to have done these things.
Taking a very pessimistic view of the justice system and how he will be convicted so what’s the point.
Might as well kill her and then himself (since the government trained him to be a killer).
When he’s more composed he sees this as counterproductive.
…has been depressed, anxious, agitated at times. No actual physical violence.”
The hospital records for the period 27 April 2007 to 5 June 2007 contain several notes that the paternal grandfather was “settled”, “pleasant”, “reactive” and “very attentive in group sessions”. These observations were mixed with references to his “outbursts” and “anger”.
The notes recorded a number of statements of “homicidal ideation” by the paternal grandfather, including the following:
“3.05.07Expressed some homicidal ideation, directed to the woman police officer who has laid formal charges against him. Expressing some homicidal and suicidal ideation.
Assessed as moderate to high risk of aggression and suicidality…
9.5.07Rtw from Court. Very angry and upset.
[The paternal grandfather] remains angry re his current situation – much of this anger is directed towards certain police officers and their handling of his case.
10.5.07Continued to vocalise and express his anger in a controlled way . Finding self more able to focus positively but occasionally breakthrough anger directed at police. Nil overt hostility. Able to be redirected.
13.5.07Is able to speak about everything happening in his life in a calm manner with no apparent aggression.
4.6.07[The paternal grandfather] returned from his court appearance this afternoon. Reported that he felt he handled the situation very well – remained calm and managed his anger much better than previously.”
Dr G’s discharge summary dated 4 June 2007 stated:
“Took some time and gentle handling but managed to gain a more balanced perspective on what is clearly a very difficult situation.”
On 22 June 2007 the paternal grandfather was again admitted to P Hospital. On the night of 5 July 2007 he absconded and was reported to police as a “missing person”. He was involuntarily admitted to Z Hospital on 6 July 2007, after intervention by Dr G, and released on 8 July 2007. A chronology of these events can be gleaned from the notes of P Hospital (exhibit 13), Ms W’s notes (exhibit 11) and a written statement provided by the paternal grandfather to Dr WE (included in his report).
The hospital records describe this admission as “unplanned”. The paternal grandfather arrived at the hospital with his wife, who was noted to be “anxious” while waiting in the foyer. The notes of 22 June 2007 read:
“[The paternal grandmother] stated that she had given [the paternal grandfather] an ultimatum to either return to hospital or she would contact police in regard to his aggressive behavioural thoughts about others – he said he had nil suicidal thoughts/nil self harm thoughts and there are other people he would like to hurt first.”
Dr G admitted the paternal grandfather to the hospital on 22 June 2007. His notes included:
“Presenting Symptoms
Has had a blow-out of his anger problem. Several factors contributing: Family Court dealings with son vs his ex-wife; his own dealings with a friend who knows about DPP procedures etc which has got him going about the policewoman who dealt with his case; allegedly talking about kidnapping his granddaughter; railing against police…Also business partner wants him out due to people potentially finding out and stuffing business up.
History of Illness
…Made threats and wants revenge on female police officer (but not to ?d-in-law) for not doing the investigation properly.
MSE
…Got fired up about the ‘incompetence’ of the WPO and how he wanted to get revenge on her ‘cos she’s not fit to be in police. Why should she be able to stuff his life up with impunity? Lack of positive themes. Would give her a good going over if they were alone.”
On 23 June 2007 a nurse noted:
“[The paternal grandfather] was approached early in the shift to discuss his anger. My concern for the safety of the staff and co-clients was expressed to him given that he had previously stated that he was no longer concerned about the consequences of the expression of his anger. He assured me that his anger was specifically related to certain individuals namely a particular police officer and his former daughter-in-law. He went on to say that staff and co-clients should have no fear of him ‘exploding in rage’…”
On 24 June 2007 a nurse noted:
“Much improved this am. Up and about early, nil anger, socialising well with co-pts and staff. Participated in group activities.”
On 27 June 2007 a psychologist noted:
“…admits to becoming extremely angry and had homicidal thoughts which distressed his wife and family…Much of his anger is still directed at a police officer involved in his case – and also his ex-daughter-in-law.”
The progress notes indicated that the paternal grandfather then had a relatively uneventful stay in hospital until 5 and 6 July 2007. On 5 July 2007 he had a session with Ms W, which distressed him considerably, and then followed the events to which I have already referred.
On 5 July 2007 the hospital notes record that the paternal grandfather returned “appearing very angry” after a session with Ms W. His anger escalated when he discovered that he had been moved to a different room. He then absconded from the hospital. His family located him in a park but he eluded them and slept in the back yard of his home that night. After intervention by Dr G, he was involuntarily admitted to Z Hospital the next day.
Ms W noted that she received a telephone call from the paternal grandfather’s daughter, NE, “expressing concern about her father”. Ms NE told Ms W that the family located her father in the backyard of her parents’ home, where he had apparently spent the night.
Ms W noted that the mental health team advised her to contact police because of the paternal grandfather’s threats. She recorded: “I explained what [the paternal grandfather] had told me and stated that I did not believe that [the paternal grandfather] was about to harm anyone at that time but was unsure as to whether this was possible if his son was not granted access on 27 May. I explained that [the paternal grandfather] had a plan but he had not resolved some problems in his plan and it was unlikely to be carried out at this stage…”
The paternal grandfather gave his own account of these events in a statement which he provided to Dr WE. He said that he felt upset and frustrated after his appointment with Ms W. He became very distressed when he returned to the hospital and found that he had been moved to a different room. He left the hospital and walked to a park, where he telephoned a Lifeline counsellor. He then rang his wife, who soon arrived with their children (the father and NE). The paternal grandfather then walked off and noticed that his son, the father, was following him. In his own words “I decided that they did not trust me then I would show them that [the father] was not good enough to follow me”. He then attempted to evade his son’s efforts to track him. He felt that “this was now a game and I was enjoying it. It had taken my mind off the issues that had been of grave concern to me that afternoon”.

The paternal grandfather then walked back to his home, which was about five kilometres away, and spent the night in the barbeque area of the back yard. Police officers arrived early in the morning but he ordered them from the premises. They returned that afternoon, with an order signed by Dr G for his admission to Z Hospital.
On 31 July 2007 the Federal Magistrates Court made interim orders, to the effect that the child recommence spending alternate weekends and each Wednesday night with her father at the home of his sister. The orders prohibited any direct or indirect contact between the child and the paternal grandfather and provided that she was not to be taken within 100 metres of his home.
On 25 July 2007 the paternal grandfather was again admitted to P Hospital, in what the notes described as “a preventative re-admission before a further court case”. He remained an inpatient until 13 August 2007, but took some periods of leave.
The hospital notes during this admission recorded that the paternal grandfather was “settled”, “bright and reactive” and “positive” on occasions. He was also observed to display anger but made no threats to harm any person.
On 21 November 2007 the paternal grandfather was again admitted to P Hospital, where he stayed until 26 November 2007. The hospital notes described a “planned admission before a committal hearing next Tuesday and Wednesday. Unrestricted leave.”
The hospital notes during this admission again portray the paternal grandfather as variously “settled” and “pleasant” and “very angry”. There was no note of a threat to any person during this period.
The committal proceedings took place on 27, 28 and 29 November 2007. The paternal grandfather was committed to stand trial in the District Court but, on 11 July 2008, the Crown presented a nolle prosequi.
In January/February 2009 the child commenced her formal education. She attends X School, where she appears to be making sound progress.
On 18 March 2009 the interim orders were varied so as to allow the father to have the child stay with him at his parents’ house, in the absence of the paternal grandfather. On 18 March 2009, she stayed at this home for the first time since January 2007.
Between 26 April 2007 and 27 October 2009 the paternal grandfather attended sessions at the Veterans’ and Veterans Families’ Counselling Service (VVCS). He consulted a psychologist, Ms RO.
The paternal grandfather was conscripted into the Australian Army and served in the Vietnam War in 1968 and 1969. He was a teacher when he was required to joint the military forces. The VVCS client intake form noted that the paternal grandfather referred to the allegations of sexual abuse of the child and protested his innocence. The counsellor’s notes stated:
“self-harm: life is hopeless have made a list to ‘keep things tidy’ – this needs to be complete before he would ‘do anything’.
homicide: ‘trained as a killer’ – not at the moment but may consider down the track
-family highly supportive but they are all falling apart – court case comes up 9 May – requires counselling to cope – ‘not sure that I can cope much longer’
Vietnam issues seem to be triggered by this incident”
Ms RO’s notes for 27 April 2007 stated, inter alia:
“[The paternal grandfather] also confirmed that he still has plans to harm himself and harm others before harming himself. He did not give names but alluded to his son’s ex-wife…[the paternal grandfather] reported that he did not have access to weapons and did not have a definite plan as to how to achieve his goal of harming others and himself. He said that he knows this is a stupid decision to make and may seem irrational but to him at this point in time it is the only rational option.”
On 15 June 2007 Ms RO noted:
“[the paternal grandfather] reports that his intentions to harm [the mother] are not as strong as they were six weeks ago and he only has fleeting thoughts of this at present.”
She also noted his appreciation for the efforts of VVCS staff , who assisted with his admission to P Hospital on 27 April 2007.
On 6 March 2008 Ms RO made a note in relation to Detective Constable R:
“He is blaming her for the changes in his life (employment/ financial/ relationship etc)…he said he wants to hurt her but wouldn’t hurt her physically. This was explored further and [the paternal grandfather denied he would do anything, he was just very angry.”
The VVCS notes of 6 March 2008 referred to an incident when Mr and Mrs Reisner senior unsuccessfully attempted to go on a short camping trip. When they could not find their camp site the paternal grandfather became angry, stopped the car and walked home. Ms RO reported:
“[the paternal grandfather] reported that he had quite intense suicidal thoughts at this time and was contemplating throwing himself under a truck. He said that these have decreased today and he denies wanting to harm himself at the moment.”
On 16 July 2008, after the Crown presented a nolle prosequi, Ms RO noted:
“[the paternal grandfather] continues to be relieved about the withdrawal of charges made against him by his ex-daughter-in-law…[the paternal grandfather] spent some time talking about how best to see [the child] again if this is what the Family Court decided. He says that he would like it to be informal and ‘normal’ ie a picnic in the park with family and friends in which they both happen to be there to help with [the child’s] comfort levels…”
On 8 April 2009 Ms RO noted:
“[the paternal grandfather[ reported that he felt ‘pretty bad’. He said that his anger had increased substantially and this was due to a report he saw last night on A Current Affair’s television show regarding a ‘police conspiracy’. [The paternal grandfather] reported that this has triggered a number of his issues. He said that he wants to actively pursue a number of legal options and that he was going to start making a ‘nuisance’ of himself. [The paternal grandfather] also reported that he believes his marriage is over and has been for some time. He said that he and [the paternal grandmother] have different ways of managing stress and he likes to discuss issues. He also believes he is placing his son under enormous pressure with the ongoing Family Court issues. [The paternal grandfather] reported that he is just about ready to walk away from the family. He is also considering ‘going bush’ and driving cars to and from destinations. [The paternal grandfather] also reported that he has ceased taking his medication (antidepressant and heart medication) and does not have any plans to resume this in the near future.”
On 23 June 2009 Ms RO noted that the paternal grandfather told her that he had left his home and moved into a caravan park. He explained that he found it easier to leave home altogether, rather than impose on family and friends for accommodation, when the child spent time with her father. He said that he was still refusing to take medication.
On 16 December 2008 the paternal grandfather had his first consultation with his current treating psychiatrist, Dr WE. He has made a diagnosis of late onset post-traumatic stress disorder and treats the paternal grandfather with psychotherapy.
In January 2010 the paternal grandfather moved from his home into rented accommodation. He said that he regards himself as separated but hopes to reconcile with his wife. The paternal grandmother said that she does not regard herself as separated and hopes that her husband will return to their home, once a decision is made in these proceedings.

Approach to These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…
In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨   make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
“…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.”
and at page 75:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”
In M and M the High Court identified the relevant standard of proof as (at pp76-77):
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’”
The “Briginshaw test” is now picked up in section 140 of the Evidence Act 1995 (Cth), which provides:
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(3) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.”
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
“In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
“In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”

For the last three and a half years the child has spent time with her father and paternal grandmother in the absence of her grandfather. I can only speculate as to how she may perceive this situation.
Mr and Mrs Reisner senior have another granddaughter, Q, who is about three years old. The paternal grandmother’s evidence on 23 October 2009 suggested that this little girl sees both of her paternal grandparents. She said: “I look after [Q] every Wednesday and we do see them at odd times between”. She said that she cares for Q at the home which she then shared with her husband. The report of Dr C confirmed that Q had unrestricted contact with the paternal grandfather in November 2008.
There was no expert evidence as to the likely effect on the child if this situation continues but she must surely come to wonder why she and her cousin have such different experiences of their grandfather. It seems to me that the child’s singular position within the extended Reisner family should not continue, in light of my findings that there has been no sexual abuse and that supervised time in her grandfather’s company would expose her to no unacceptable risk. I have addressed the likely effect on the mother of this change. Of course, there should be appropriate safeguards, including professional input, to smooth the child’s reintroduction to her paternal grandfather.
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
No issues arise pursuant to this consideration.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I have referred already to the evidence as to the father’s capacity to provide for the child’s needs, in the sense of protecting her from risk stemming from contact with her paternal grandfather. As noted, I am satisfied that he has the capacity to act protectively and that he would do so at all times. I am also satisfied that the paternal grandmother would provide effective assistance to him in protecting the child from any form of risk.
Otherwise, there are no issues as to the capacity of either parent to provide for the child’s needs. As the Family Consultant said: “In their own right, they are good parents”. Again, I note that I have addressed the issue of the risk of compromise to the mother’s parenting capacity, if the child has contact with the paternal grandfather.
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
No issues arise pursuant to this consideration.
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
The child is not an Aboriginal or Torres Strait Islander child.
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
No criticism can be levelled at either party in terms of this consideration. They have diametrically opposed views as to the veracity of the allegations against the paternal grandfather but they seem to have in common a devotion to their daughter and a genuine wish to do what they each perceive to be in her best interests.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
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 were no allegations of family violence.
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
In terms of this consideration, the most obvious issue is the likelihood of further litigation triggered by fresh allegations against the paternal grandfather. As noted, I accept that both the father and the paternal grandmother would always ensure that the child is never left alone with him. I accept that they are both motivated by a strong desire to protect the paternal grandfather from any further allegations. I accept also that the father would always act protectively of the child.
section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances which seem to me to be relevant to my decision.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(d)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

This subsection has no relevance to the resolution of these proceedings.

Conclusion

It is thus my conclusion that the child should be reintroduced to her paternal grandfather and removed from her singular position within the extended Reisner family. I will take up the suggestion of the ICL that the parents and the child consult with a professional person to assist with the implementation of my orders. The ICL accepted that the father lacks confidence in Mr Y and submitted that another person assume this role. I consider appropriate that suggestion.
I am confident that the father and his parents would act cautiously in the reintroduction of the child to her paternal grandfather. I accept that the father would seek and act on professional assistance in that process. I will not make an order that he do so, because that would involve unacceptable speculation as to timing and an appropriate person.
Some of the orders sought by the father go beyond the limits of the evidence before me, for example, the proposal about a passport for the child. Other proposals seemed to me to be unnecessarily complex, for example, the proposal about division of the child’s time at Easter. The orders which I make attempt to draw together the agreement of the parents and keep arrangements as uncomplicated as possible.

I certify that the preceding two hundred and twenty five (225) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 4 August 2010

[2010] FamCA 678

4 August 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Discovery

Jurisdiction

Remedies

Statutory Construction