Rose and Douglas

FAMILY COURT OF AUSTRALIA

ROSE & DOUGLAS

[2007] FamCA 251

FAMILY LAW - CHILDREN - Child related proceedings - With whom a child lives - With whom a child spends time - Best interests of a child – Allegations of sexual abuse – Risk of mother imbuing the child with a belief of sexual abuse – Father bringing child into contact with his brother who poses an unacceptable risk to the child

APPLICANT:

ROSE

RESPONDENT:

DOUGLAS

INDEPENDENT CHILDREN’S LAWYER:

Ashley Malcolm Kent

FILE NUMBER:

ADF

1924

2004

DATE DELIVERED:

23 March 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Benjamin J

HEARING DATE:

19, 20, 21, 22 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Du Barry

SOLICITOR FOR THE APPLICANT:

Maloney & Partners

SOLICITOR FOR THE RESPONDENT:

Respondent in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mrs West

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Services Commission Adelaide

Orders

THAT the father have sole parental responsibility for a daughter born in March 2000 (“the child”) subject to:-
(a)This order for parental responsibility does not enable the father to solely authorise or request the issue of an Australian Passport for the child nor does the father have sole parental responsibility to authorise the removal of the child from Australia. Such parental responsibility must be exercised jointly with the mother or consent obtained pursuant to further order of a court exercising jurisdiction under the Family Law Act 1975.
(b)The parental responsibility in this order does not entitle the father to move the primary place of residence of the child from more than 50kms from the place at which she is currently residing. The parental responsibility for a change in the place of residence beyond 50kms must be exercised jointly with the mother or be permitted pursuant to order of a Court exercising jurisdiction under the Family Law Act 1975.
THAT the child live with the father.
THAT the child spend time with the mother each alternate weekend from 9.00am Sunday until 5.00pm Sunday commencing 1 April 2007 subject to the following:-
(i)such time spent by the child with the mother to be supervised by a person agreed to by the parties or in the event they are unable to agree then approved by the Independent Children’s Lawyer (noting that the Independent Children’s Lawyer’s role will expire six months from the date of these orders), or as otherwise determined by a Court exercising jurisdiction under the Family Law Act 1975.
(ii)in the event that the parties are unable or unwilling to agree on a supervisor or if it is not feasible then the time the child spends with the mother shall be two hours each alternate weekend at times and weekend dates as reasonably determined by the Manager of the Children’s Contact Centre conducted by Relationships Australia at Salisbury in South Australia.
(iii)both parties contact the Children’s Contact Service at Salisbury operated by Relationships Australia (“the Contact Centre”) within seven (7) days and arrange for an appointment for assessment for suitability for supervised time with the child, and;
a)attend the assessment;
b)comply with any appointment made by the Contact Centre for the supervised spending time with the child;
c)comply with all reasonable rules of the Contact Centre; and
d)comply with all reasonable requests and directions of the staff of the Contact Centre.
(iv)if after the assessment intake procedure the Contact Centre is unwilling or unable to provide supervised time with the child as set out in this Order then each party and the Independent Children’s Lawyer have leave to restore the matter before me on fourteen (14) days written notice to the other party and to the Court. Such leave to be available for six (6) months from the date of this order.
(v)if after the assessment intake procedure, the parties are accepted by the Contact Centre as suitable for supervised time with the child, the mother is to spend time with the child as set out in this order.
(vi)in the event that the Contact Centre offers supervised time with the child only at times which are less or more regular than specified in the Order then such time shall spent with the child shall occur at the times which are offered by the Contact Centre.
(vii)for time spent with the child under this Order, it is to be supervised by the Contact Centre and the father and mother must equally pay the reasonable fees for such supervision on each occasion .
(viii)Such supervision to continue until such time as the child shall attain the age of thirteen years, or such earlier time as is agreed in writing by the parties.
(ix)Such time spent with the mother shall be suspended if the Sunday is a Father’s Day Sunday;
(x)If Mother’s Day is not a time when the child would otherwise spend time with the mother then on Mother’s Day from 9.00am until 5.00pm subject to supervision as provided in this order;
(xi)Such other and further times as are agreed in writing between the parties;
THAT the mother communicate with the child by telephone on one occasion per week (for not less than fifteen minutes) at times and days agreed between the parties and in the event that the parties are unable to agree then between 6.00pm and 6.15pm each Wednesday.
THAT the father be entitled to monitor such calls by extension telephone for a period of one year from the date of these orders.
THAT the mother be restrained from bringing the child into contact with her siblings J, R and S, except upon giving seven (7) days notice to the father and upon any such time that the said child spends with her said siblings being supervised as above provided above by these orders;
THAT both parties are restrained from discussing these proceedings or the allegations of abuse raised in these proceedings with the child or in the presence or hearing of the child;
THAT neither party shall abuse, demean or belittle the other party or members of the other parties family to the child or in the presence or hearing of the child.
THAT the father shall keep the mother advised, in a timely fashion, of any medical or other significant health or welfare issue pertaining to the child including details of any medical, dental, psychological or psychiatric treatment undertaken by the child. A timely fashion shall be at least within three days.
THAT the father shall ensure all school records shall note the mother as a person with whom the school authorities may communicate from time to time regarding the child and to whom school notices and copy school reports shall be sent.
THAT any school which the child attends and any general practitioner or other qualified psychiatrist, psychologist and/or general practitioner who treats the child is entitled to be provided with a copy of these orders and the reasons upon which such orders are based.
THAT the mother shall be entitled to attend school functions such as swimming carnivals, sports carnivals, plays, Easter parades and the like, provided she gives at least three (3) days notice in writing to the father and otherwise complies with these orders.
THAT the mother shall be entitled to discuss issues relating to the child’s education with the child’s teachers, school Principal and/or any school counsellor, provided that the child is not present at such interviews or discussions.
THAT the father shall facilitate the child spending regular time with her siblings M and B at such times that may be approved by the State Minister or other appointed guardian. For the period of six months from the date of these orders the father shall keep the Independent Children’s Lawyer informed of such time the child spends with her siblings.
THAT the father shall not consume nor be affected by illegal drugs (including marijuana) whilst the child is in his care or is otherwise supervised by him. That the father shall provide to the Independent Children’s Lawyer the results of six blood analysis of himself to be undertaken by the father for each of the six months following these orders. Such blood tests are intended to indicate whether the father has used cannabis or marijuana since the date of these orders. In respect of increased positive findings in that regard, and subject to the notations to these orders, leave is given for the Independent Children’s Lawyer to re-list the matter before me on the giving of seven days notice to each of the parties and the Court.
THAT in so far as the father’s brother (the child’s uncle) is concerned, the father is restrained from:-
(a)residing or allowing the child to reside in the same premises as her uncle;
(b)permitting the child’s uncle from sleeping overnight at the same premises at which the child is sleeping;
(c)leaving the child at any time unattended in the care or presence of her uncle;
(d)allowing the child to be within 100 meters of her uncle in the event that her uncle is affected by alcohol or illegal or illicit drugs.
THAT the Independent Children’s Lawyer shall cause a sealed copy of these orders to be personally served upon the child’s paternal uncle and the child’s paternal grandmother within twenty eight days from the date of these orders and further shall file an affidavit of personal service showing compliance with this order within a period of fourteen days from each such service.
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 leave be given for the orders and the reasons upon which they are made to be provided to South Australian welfare authorities.
THAT the appointment of the Independent Children’s Lawyer shall continue for six months from the date of this order or such longer or shorter period as it otherwise determined by a Court and exercising jurisdiction under the Family Law Act 1975.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

NOTATION
A.That this is a matter to which the presumption under s61DA of the Family Law Act 1975 does not apply as there has been a finding under s61DA(2)
B.That Mrs J (the former wife of the child’s paternal grandfather) is a suitable person to act as a supervisor with regard to the time the child spends with the mother.
C.That with regard to the testing for signs of use by the father of cannabis or marijuana as provided in order 15 above, initial tests are likely to show a positive medication but the levels should fall to nil over a period of testing.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1924 of 2004

Rose

Applicant

and

Douglas

Respondent

REASONS FOR JUDGMENT

This is a dispute between the mother and the father in respect of parenting arrangements with regard to a child of the parties, a daughter who is aged seven.
The mother seeks orders that she have sole parental responsibility for the daughter and that she live with her. The mother submits that the changeover should take place as soon as possible. She seeks orders that the child spend time with the father but such time should be supervised by the Children’s Contact Centre at S in South Australia.
The father seeks orders that he have sole parental responsibility for the child and that she live with him. He seeks other orders that the child spend time with the mother supervised by a Children’s Contact Centre or other supervisor (independent of the mother). The time to be not less than two hours per fortnight.
He seeks further orders that the child communicate with the mother by telephone on one occasion per week for not less than fifteen minutes and that the mother be restrained from bringing the child into contact with her elder children J, R and S or discussing these proceedings with or in the presence of the children.
The father seeks further orders that the parties facilitate the child spending time with her siblings M and B, at such times as may be agreed by the Minister or other appointed guardian.
During the hearing an issue arose as to the time the child spends with her paternal uncle.
The submission of the Independent Children’s Lawyer is that in relation to the proceedings include a submission that the following orders should be made:
1.      That the father of the child, a daughter, born in March 2000 do have sole responsibility for the said child save with respect to the issue of a passport in the child’s name or the granting or permission for the child to travel overseas.
2.      That the child live with the father.
3.      That the child shall spend time:-
(a)with the mother for a period of two (2) hours per fortnight at times nominated by the S Children’s Contact Service or as agreed between the mother, father and the proposed supervisor;
(b)provided that such time with the mother shall be supervised by the S Children’s Contact Service, Mrs J or a responsible adult agreed to by the mother and father;
(c)with the children B and M at times agreed and in consultation with the Department of Children Youth and Family Services.
4.      The father is restrained and an injunction is granted restraining him from:-
(a)smoking (or being affected by) marijuana whilst the child is in his care;
(b)permitting the paternal uncle to have contact with or care for the said child except in the presence of the father or paternal grandmother.
5.       Each party is restrained and an injunction is granted restraining each of them from:-
(a)discussing these proceedings or any allegations arising therefrom with the child or any other person in the presence of the child;
(b)denigrating each other or permitting any other person to do so in the presence of the child.
6.      The father shall keep the mother informed of:-
(a)     the name of the said child’s school; and
(b)the name of the child’s medical practitioner and any medical treatment required by the child.
7.      The father shall authorise the school to notify the mother of all parent/teacher meetings and other special occasions occurring at school to which parents are usually invited.
8.      The mother is permitted to attend parent/teacher meetings (in the absence of the child) and other occasions to which parents are usually invited provided that the mother refrain from discussing any allegations of sexual abuse concerning the child or any of her children with any parents or visitors at the school and that she not approach the father.
9.      The parties and the Independent Children’s Lawyer are at liberty to provide a copy of these orders and the judgment of Justice Benjamin dated 23 March 2007 to any medical practitioner counsellor or teacher involved with the child or the parties herein.
10.    The appointment of the Independent Children’s Lawyer is discharged as and from 31 March 2007.
Background
At the date of the hearing the mother was aged forty five and was not in paid employment. The mother remarried in August 2005 to Mr L. On the evidence there is an issue between the mother and Mr L as to whether they commenced their cohabitation in June 2004 (on the mother’s evidence) or March 2005 (Mr L’s evidence). This issue is more a matter of credit that substantive in respect of the proceedings between the parties.
The mother has six children of a previous marriage namely J aged twenty one, H aged twenty, R aged nineteen, S aged seventeen, M aged twelve and B aged eleven. In these reasons I will refer to these children by there first names.
Of these children J, R and S live independently of the mother in their own accommodation. S has been the subject of a number of State welfare orders over a number of years during the time the parties cohabitated.
M and B are the subject of a State welfare order and live in foster accommodation. They see their mother two hours per fortnight but sometimes more over school holidays and special occasions. That time takes place at a welfare office and the mother believes that this is to change some time in the future.
The mother says that she and the father met in late 1998, the father says they met in 1999. Nothing of significance swings on that determination, apart from the question of credit. The child was born in March 2000 and the parties commenced living together about one month later.
In June 2004 the parties separated with the mother leaving the housing trust accommodation and leaving M and B and the child in the care of the father. The mother returned about three weeks later but cohabitation was not re-established. There was an issue between the parties as to the circumstances surrounding why the child was left in the care of the father and I will deal with that later in these reasons in terms of the weight that ought to be given to the evidence of the respective parties.
The mother’s daughter, H has married or partnered and has had a child. She lives in Queensland and has little or no contact with the mother.
The father has been in previous relationships and has a number of other children, namely A aged twenty one, D aged fifteen, X aged sixteen and Z aged eleven. These children do not feature in the issues to be determined in these proceedings.
The paternal uncle at one time lived in the same home as the father. This has not been the case for some considerable period, although the uncle is a regular visitor to the father’s home. The uncle was convicted at B Local Court on 2 May 1995 of assault occasioning grievous bodily harm. He was convicted and a fine of $5,000.00 and $46.00 court costs were imposed. This related to an assault by him on a fourteen year old girl. The facts alleged by the complainant were:
73 The parents of the complainant had separated and she had lived with her father. When she was aged about 13 and in year 8 at school she went to live with her mother and the appellant. The evidence suggests that she was no an easy girl to manage. On the afternoon of 24 February 1995 she returned home about 3.30 pm having wagged school for the day. Her mother and the appellant were there. He remarked that she was home early and that it usually took her twenty minutes to walk home and it had only taken her ten minutes. He told her to go to her room and do her homework. She went to her room and closed the door. She said that some time later he came to her room and told her to stand up, he wanted to talk to her. She did so. He then hit her across the face with the back of his hand causing her nose to bleed. He told her not to get blood on the carpet. He said "Come here, you lying slag". She went over to him. He hit her a couple more times and then pushed her up against the wall, put both his hands around her throat and started to squeeze. She said that she could not breathe, that he asked her if she could breathe, she shook her head and he said, "Feels good, doesn't it". After releasing his hold on her, he hit her again and threw her on the bed. She ended up lying on her back with her legs dangling over the edge of the bed.
74 She said that he commented "Oh, you seemed to enjoy that. See how you're going to enjoy this". He walked over and pulled her shorts off. She said that she screamed and tried kicking him. After a struggle by her the appellant succeeded in pulling off her underpants. He "sort of" threw her over to the side. She tried getting out of the open window. He grabbed her, pulled her back, threw her back on the bed and took his shorts off. She tried to escape through the window again but he pulled her back. He removed his underpants. She leapt from the bed and tried to get out through the door. He ran over, shut the door and threw her back on the bed and pinned her down. She screamed and yelled. He inserted his penis in her vagina and moved backwards and forwards. This hurt.
75 The complainant said that she next became aware of the bedroom door being opened and her mother standing in the doorway. Her mother said, "that's enough". The complainant said that she said nothing, that the appellant said nothing and that her mother walked away, leaving the door open. The complainant said that the appellant pushed in and out a couple more times, got off and walked out of the room leaving his clothing there.
76 She got up, put on some underpants and shorts and went to the bathroom. She wiped herself around the vagina and noticed some blood. As she endeavoured to leave the bathroom the appellant pushed her back into the bathroom and told her to wash her face. There was blood from her nose on her face. While she was in the bathroom attempting to wash her face, he pushed her and she fell into the bathtub striking the back of her head. After the appellant left the bathroom she got out of the bathtub and washed her face. She left the bathroom and went to her bedroom.
77 She said that the appellant came to her room and said, "You've got 10 minutes to get out of my house". Thereupon she began to pack some bags. While doing this her mother came in and asked her what had happened and she replied, "Like you don't know". Her mother did not reply but stood in the doorway. The daughter asked where the appellant was and her mother said he was in the toilet. The daughter grabbed her school bag but no other bag and ran out of the house. She was upset and scared. It was about 4:30 pm. It had been an eventful and traumatic hour.
78 The complainant ran on to the verandah of a hotel about five blocks away. A man came to her and asked, "can I help you", and she started to cry. The man spoke to the licensee of the hotel, a lady, who came out and spoke to the complainant. She was sobbing, shaking and distraught; indeed, so distraught that she did not want to enter the hotel. The licensee remembered this vividly. Because of the lapse of time (three years) the licensee could not remember accurately whether the complainant was bruised or had blood on her. The licensee arranged for the complainant to use the telephone. She telephoned [Mr S] When she finished speaking the licensee gave her $5 for a taxi to [W] in [B] where she met a lady who drove her first to the lady's home and then to [Mr S’s] home at [M], arriving there about 5:30 to 6:00 pm.
79 ]Mr S] was a highly qualified nurse and carefully observed the complainant's external injuries. Her face was bruised, her nose was discoloured and there was blood on her lip, across her jawline and on her clothes. It was dry blood. There was swelling to the side of her face and across her jaw and bruising to her ear. Around her neck and upper chest there were red finger marks. There were welts on the complainant's back and a fair sized lump at the back of her head. The lump was red and hot so it was not an old injury. Her face and her hair were "a real mess". Photographs of the injuries were taken. [Mrs S] said that the complainant was very distressed and that [they] could not get any sense out of her for at least half an hour.
80 [Mr S] took the complainant to the [M] Police Station. The complainant said that she told [Sergeant A], a male officer, about some of what had occurred. She said "I just told him about the bashing". She did not tell him about the removal of her clothing or about the appellant placing his penis in her vagina. She stated that before she left the appellant's home he had said that if she told, he would hunt her down and kill her if he saw her on the street. Using excessive gestures he had also threatened to break her nose. As at 24 February 1995 the appellant was aged twenty-eight. He was unemployed at that point. At the trial he was a gardener by occupation. [Sergeant A] said that at the time she made her statement (about 7:00 pm) the complainant was crying and physically shaking. She was then taken to [Y] District Hospital and examined by [Dr B] at 8:30 pm. He found that she had tender swelling over the right lower jaw, left cheek and back of her head. He did not find any finger marks on her neck or back. There were no marks of bleeding in the nose. There were no other abnormalities.
81 [Mrs S] said that upon the complainant's return from the police and the hospital she was very withdrawn and would neither eat nor drink. She kept bursting out with certain statements which they did not take any further. It took hours to calm and settle her down. She slept on the floor in the bedroom of [Mr and Mrs S]. She was not coherent - she was too upset. [Mrs S] had to soak the complainant's clothes in an effort to eradicate the stains.
82 The complainant stayed with the [Ss] moving with them to Queensland. [Mrs S] said that for some time after 24 February 1995 the complainant was wary of men and getting close to them.
83 The appellant was interviewed by [Sgt A] on Monday, 27 February 1995. He stated that he was sick and tired of the complainant running away when she could not get her own way. He said that he told her "to get the fuck out". He denied striking the complainant on the nose and that he held her against a wall causing her to have difficulty breathing. He said that he entered her bedroom when her mother and she were packing her stuff up. He said that the mother remained in the house from the time the complainant arrived home until the time she left. He denied that he struck her several times in the face.
84 The appellant said that he entered the bathroom while the complainant was in there. He believed that "she was getting her brush, hair ties and shit". He said that he asked her to move out of the way but she would not move. He said, "When I went off at her I think I scared her". He pulled the cabinet door open, knowing that it would strike the complainant if she did not move. After he had struck her with the door she fell into the bath. Her described his tone of voice as abrupt and said that his voice was raised when he told her to move and she did not do so. He said that he got a tin of spray paint and walked out the back to do "touchups" on the car. The appellant said that when he last spoke to the complainant in the house she had no injuries. However, she was upset.
85 In his evidence in chief the appellant conceded that he lost his temper with the complainant in the bathroom and that his actions in pulling open the cupboard door and striking her on the leg made her go backwards into the bath. Apart from this, he denied striking or touching her in any other way. He denied sexually assaulting her.
86 The appellant said that on the complainant's coming home he asked her how she had got home from school so early. She went into her bedroom to do her homework. He and her mother remained in the house. He opened her bedroom door and told her to leave her door open and to open the window "cause it stinks in here". He went back to the lounge room and conversed with his de facto wife. Next he was in the doorway of the complainant's room and a confrontation occurred over the way she left the room and over other matters. A little later, the bathroom incident occurred and he went out the back.
87 The appellant said that he came back inside the house five to ten minutes later. He saw his de facto wife and his de facto stepdaughter in the latter's bedroom packing her school bag and a couple of white Coles' bags. The appellant said he went into the toilet and on coming out saw his de facto stepdaughter and his de facto wife walking out the front door. The complainant left and her mother came back inside the house. The appellant said he had not seen the complainant again until the previous day (17 February 1998). The appellant's evidence in cross-examination was less than compelling.
88 The appellant was charged with assault occasioning actual bodily harm on 27 February 1995. He did not appear as required before the Court on 27 March 1995. He said he and his de facto wife went to South Australia. There were care proceedings in the Local Court at [O] involving the complainant and the Department of Community Services as a result of which the complainant was permitted to stay with the [Ss]as their foster daughter

The paternal uncle was subsequently convicted in the NSW District Court in 1998 for offences of having sexual intercourse in circumstances of aggravation without consent with respect to the same girl. He was sentenced to a minimum term of six years penal servitude. The complaint about the sexual attack having been made about two years after the assault. That conviction was the subject of an appeal to the New South Wales Court of Criminal Appeal. The appeal was allowed and a new trial was ordered. The Director of Public Prosecutions did not proceed with the second trial having accepted the paternal uncle’s plea of guilty in May 1995 to the charge of assault occasioning actually bodily harm.
The father has a criminal history in Tasmania which relates to driving matters and a 1988 conviction for possessing a smoking implement, he has a 1992 conviction for possessing and using a prohibited substance and possessing a smoking implement. These related to his use of marijuana. There was not issue that the father used marijuana the issue was the extent of that use.
The mother’s first husband was charged with and found guilty of sexual abuse of their elder daughter.
The South Australian welfare authorities have had significant involvement with the family which dates back to about 1996.
In August 2002 a report was made to the Department regarding emotional abuse of the child by one of her eldest siblings S and sexual abuse allegations in that regard were notified in December 2002 that the child and her sister B had been sexually abused by J. Other allegations were made that the three older boys, J, R and S had sexually abused the child, B and M. In respect of these later matters the allegations were assessed as not warranting investigation.
However, the files note that the mother had discussions with one of the older boys with regard to sexual abuse and was of the view that it occurred following discussions with the children and her own observations. The mother seemed to resile from this evidence.
In any event the mother entered into a Safety Agreement with the welfare authorities that she would not leave the younger children unattended in the care of the older boys.
In August 2004 the mother made notifications to the welfare authorities in relation to the alleged sexual abuse of the child by the father and made further allegations in October 2004.
In December 2004 the mother commenced proceedings in this court and Registrar Kelly made orders that the child live with the father and have contact with the mother 12.00 noon until 4.00pm each alternate Saturday with such contact to take place away from her home and in the absence of the mother’s husband. The mother was to personally supervise the contact and a restraining order was then made preventing her from discussing the proceedings and allegations with the child. Further orders were made preventing the mother from bringing the child into contact with R, S or J. An order was made from preventing the father from discussing the proceedings with the child and an independent children’s lawyer was appointed.
On about 23 March 2005 the mother was evicted from her Housing Trust home. On 26 March 2005 the father alleged that the child disclosed sexual abuse of her by J and that disclosure was reported to police.
On 31 March 2005 B and M entered into foster care pursuant to an order by the Youth Court.
In June 2005 the mother refused to return the child from contact and the child was placed in foster care until 20 June 2005. After which time she apparently returned to the father’s care.
Further orders were made by the Court providing that the child spend two hours with the mother at a contact centre although it was generally agreed there has been little time that the child has spent with the mother since at least August 2006.

The relevant legal principles pursuant to the Family Law Act

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
[1] s 60B(1) Family Law Act 1975 (Cth).
(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] s 60B(2) Family Law Act 1975 (Cth).
(a)           children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)           children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)            parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
[3] s 61C Family Law Act 1975 (Cth).
[4] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 60DA     Presumption of equal shared parental responsibility when making parenting orders
(1)           When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)           The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)           abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)           family violence.
(3)           When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)           The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[5] s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[6] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[7] s 61DA(3) Family Law Act 1975 (Cth).
[8] s 61DA(4) Family Law Act 1975 (Cth).

10.A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
11.As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
[9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

12.The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.
13.How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
14.Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
15.How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
16.It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
17.The approach to be adopted by a court is structured.
18.The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
19.The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
20.To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
21.Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
22.In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[10] where her Honour said;
[10] G and C [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a)            the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)           the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66 This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67 The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68     The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69     While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
70     The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

71 The arguments supporting the second possible interpretation include;
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;

(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;

(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

71 My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to Billy into the future.

23.I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
24.Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.

Unacceptable risk
[12] Ibid paragraph 68.

“Efforts to define which would justify a Court in denying a parent access to a child have resulted in a variety of formulations …. this imposing array indicates that the Courts are striving for a greater degree of definition that the subject is capable of yielding. … in devising these tests the Courts have endeavoured, in their efforts to protect the child’s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed by saying that a Court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of abuse”: M –v- M (1998) 166 CLR 69 at 78; (1988) FLC 91-979 at 77081.
In a recent paper[13]retired Justice Fogarty observes:
[13] J Fogarty – “Unacceptable Risk – revisited” – unpublished paper November 2005
“The cases which attract its [unacceptable risk] potential application are amongst the most important and difficult to confront Courts. Importantly because they oblige the Courts to protect children against the risks in the future which will impact on them as children and as adults and protect the family relationships. Difficult because the material upon which those decisions are made is often hard to ascertain with any certainty and requires a clear understanding in application the principles which govern them.
In any case about a child, and particularly if an issue of risk is involved, the ultimate and definitive criteria is the best interest of that child. This is both the starting point and finishing point. To stress the right of the child (or parent) to access [contact] as a generality as a starting point says nothing useful about the individual case anymore than it is to stress the general right of the child to protection from abuse or other risks”.

32.The High Court in M summarised the argument of the appellant as follows:
“The appellant submits that, in this case as in any cases of custody or access involving allegation of sexual abuse, two issues arise. The first is whether the parent has sexually abused the child: the second is whether there is a risk, if custody or access be granted of sexual abuse occurring. Accordingly to the appellant the first issue is to be determined according to the civil standard of proof, on the balance of probabilities the second is answered by reference to the test: is there a real and substantial risk of the child being sexually abused? To these propositions the appellant adds to others: first, that the primary Judge is under a duty to determine the first issue: and, secondly that, if the complainant fails in the first issue, then that is the end of the matter because of rejection of the complaint necessarily entails a negative answer with the second issue”.
33.The High Court dealt with that issue and rejected it in the following way:
“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the Court. In proceedings under PtVII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child as the paramount consideration”: S.60D. The paramountcy of this consideration in proceedings for custody or access is preserved by S.64(1). The consequences that the ultimate and paramount issues to be decided for proceedings for custody or access to a child, is whether the making of the orders sought is in the interests of the child. The fact that 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 decisive, impact on the resolution of that issue”.
34.The Family Court has no duty to resolve the disputed allegations of sexual abuse as would be a Court exercising criminal jurisdiction. Retired Justice Fogarty in his paper says:-
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court where it called upon to decide what is in the best interests of the child”.
The High Court re-emphasised this in the next paragraph when it said that there would be some cases were the Court is able to come to a positive conclusion that the allegation is well founded and in all but the most extraordinary cases, that finding will have a decisive impact on the orders. It referred to cases where the Court “had no hesitation in rejecting the allegations as groundless”, and finally that “in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place”
The Court went on to suggest the following:
“There are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has taken place unless it is impelled by the particular circumstance of case to do so”.
35.For a finding that there is an unacceptable risk the degree of the risk and concern forming that conclusion must be clearly stated.
36.The finding of unacceptable risk (without further explanation of the degree of risk and the basis of that conclusion) would be too ambiguous and the desire not to be too dogmatic may come at too higher price.
“Of course, if the case is not based wholly or in part allegations of past sexual abuse of the particular child but on other factors (of which the most obvious is abuse of another child and/or other sexually inappropriate behaviour) the first step would not be relevant, and in relation to the particular child may be a case of unacceptable risk. The only qualification of that is that if a finding of sexual abuse of another child is to be made, it would need to be established in accordance with the Briginshaw standard. If the evidence in relation to that falls short of that standard it may still constitute an element of a decision of unacceptable risk – see later discussions. In any event the identification of the degree of risk is very important in these cases in order to determine what protective measures need to be taken. Where sexual abuse is clear on the evidence, an avoidance of that finding may create uncertainties and not fully explain why the particular orders were made. Where a Court is able to come to a clear conclusion that there has been no sexual abuse and that no unacceptable risk exists, it would ordinarily say so, both as a matter of fairness and because these conclusions may have wider implications in the orders to be made by the Court …. Finally it needs to be remembered that the High Court in M was dealing with sex abuse cases which involve a particular stigma. It is now well recognised that the concept of unacceptable risk extends across a wide range of risks which may impinge on the welfare of the child. In some of those cases the evidence will be clearer, and the findings, positive or negative, more readily available. It may create an unsatisfactory position if the views of the High Court in M necessarily govern those cases as well. Returning to the judgment in M the High Court determined that the appropriate description of the test to be applied was “unacceptable risk” …
In its last paragraph the Court summarised the decision in that particular case in the following passage which is important not only to the case but generally. It reads:
“in the present case Gun J was not satisfied the husband had not sexually abused the child. We take that to mean that his Honour was not satisfied according to the civil onus. On this footing, his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband was awarded custody or access”

The Court was apparently able to equate the trial Judge’s conclusion about “some lingering doubt” to this test.
Over the years concerns have been expressed about the apparent endorsement by the High Court in both M and B of “some lingering doubt” as sufficient. In isolation this may be a justified concern because it may suggest a very low threshold of satisfaction of unacceptable risk. This is compounded in those cases because, for other reasons, no access was ordered. In other circumstances orders for supervised access may have been expected. Both Judges may have been expressing themselves in a conservative way; the facts of each may have justified a higher identification of the level of risk. Both the Full Court and the High Court equated that phrase with a view that “as a matter or practical reality … there existed a risk that the child may be sexually abused and that her welfare may thereby be endangered.
When the test of unacceptable risk was first propounded there were some criticisms – that it was circular, what was meant by “acceptable” etc., I think that those criticisms were misplaced, the test expresses a fluctuation of this concept as well as can be.
There is always a risk that this may become a phrase carved in stone with some mystical but obscure meaning, an incantation which can be waved over a case and used without further justification or explanation. However, my reading of the first instant case available to me does not support this concern.
The High Court itself seems to have no reservations about the utility of that phrase and its meaning: see Fardon –v Welford above. In particular the Chief Justice said:
“It was argued that the test, posed by S13(2) (of the Queensland Act) of an “unacceptable risk that a prisoner will commit a serious sexual offence” is devoid of practical content. On the contrary, the standard of “unacceptable risk” was referred to by this Court in M & M in the context of the magnitude of a risk which would justify a Court in denying parent access to child. The Court warned against “striving for a greater degree of definition than the subject is capable of yielding”. The phrase is used in the Bail Act 1980 (Q), which provides that Courts may deny bail where there is an unacceptable risk that the offender will fail to appear (S16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade”.

I have noticed from my reading of a number of first instance Judgments that reliance is of placed upon the following summary in B & B (1993) FLC 92-357 at 79788:
“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 child in having access with the parent outweighs the possible benefits to them from that access”.
It is, however, important to note that in that case the court was referring to unsupervised access. The Court went on to say that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”. See also W&W (2005), above at paras 98 and 99
The evidence

The mother represented herself and relied upon two affidavits filed in these proceedings namely her affidavit of 13 March 2007 and 22 March 2005. During the course of the proceedings the mother was referred to parts of her affidavit filed 10 December 2004 and sworn 9 December 2004, and tendered in evidence. Annexed to that affidavit were reports from Dr G dated 19 June 2003 and a report from Child Protection Services [14].
i)[14] Exhibit F4
During the course of the hearing the mother had been aggressive and self serving in terms of her answers and towards the father. When asked questions she was often evasive and used it as an opportunity to launch and attack on the father. Once she started speaking she continued until she had finished and was immune to interruption, even from the bench. Her evidence was glib and seems significantly focused on outcome rather than reflecting her recollection of events.
In terms of the weight that I give her evidence it must be seen through the prism of those concerns and I do not accept that she is frank nor do I accept that she is a witness of truth.
None of the six children of the mother’s first marriage live with her and she prevaricates when it comes to the reasons for this. I have, in these reasons, found that the child is not at an unacceptable risk of abuse, family violence or harm from the father. I find that the mother will not accept such a finding as she is fixated that the father as sexually abused the child.
In terms of the separation I find that the parties separated in June 2004 when the mother left the matrimonial home and left the child, B and M with the father. I find that the father has had the day to day care of the child since separation (apart from the period when she was in care referred to earlier).
The mother gives evidence that S was unwell for part of his life including suffering hallucinations and hearing voices. It is significant to note that
Dr G observed in his report of 19 June 2003 of S as follows:-
“I saw the mother and [M] again today, 9/3/06.
I took the opportunity to speak at length with the mother. From [the mother’s] story I have virtually no doubt that [S] has no doubt sexually abused [M] [B] and [the child].
Her story is that his behaviour was erratic from when the family moved and he was quite often violent. I am aware that he was at times violent but the mother seemed to be able to control him.
I hadn’t heard, but he tended to lock himself in the bedroom with [the child], and say that “the voices told me to rape [her]” so that when the mother and the other children managed to get into the room, he was quite relieved because he was saying that he didn’t want to do what the voices said.
[S] has been complaining of auditory and visual hallucinations, off and on, from when I first saw him. Initially, I referred him to [Dr H], Neurologist to offer an opinion but apparently they didn’t turn up.
It seemed clear that he needs anti psychotic medication, because of his presentation he was treated from early on, namely 27 November 2000 with Risperidone, 2mg a day, an anti depressant Zolaft 25mg daily.
On 16 December he said that the voices said “kill [the father] and kill [the child]”. [The child] is the child of [the parties]”.
Dr G later diagnosed that S was suffering “a form of post traumatic stress disorder, with psychotic intensity and in fact could be diagnosed as simply “schizophrenia”.
Dr G wrote to the State Adolescent and Family Team on 21 December 2004 where he observed:
“Thank you for your letter. I have been seeing this lad for four years, between fortnightly and monthly approximately. He is suffering from the after affects of sexual and physical abuse by his natural father.
He has had a number of psychotic symptoms, including hallucinations which have settled remarkably. During my time of seeing him it has been impossible to get the step father in, although he did come once.
[S] himself was accused of sexually abusing one of his siblings but it became evident that the step father was a known paedophile and had probably been the abuser. He has apparently cohersed [S] into confessing, with threats that he would murder certain family members”.
I find that the information provided to Dr G about the father being a “known paedophile” came from the mother who had changed her view as to who advised her younger children from S to the father.
The mother gave apparently cogent evidence to the police of her observations of the abuse by S. It was only after their relationship ended in June 2004 that the mother concluded that the child was at risk of abuse in the care of the father.
I infer that it is more likely than not that the mother has induced S to change his mind to support her view that the father is a risk to the child and to provide evidence for her in her quest for the child to reside with her. The mother is now convinced in this regard.
The mother said that in early August 2004 she tried to take her daughter and the child called out that she had been sexually abused. This led to the disclosures in August 2004.
The mother left messages with the father saying words to the effect “if you don’t call me in the next twelve hours I will be your worst enemy”. The mother threatened to make reports to Child Welfare. I find she sent a text message saying the words “Coward, by the way you have been reported for sexual abuse”. The mother suggested that she would be the father’s “worst nightmare”.
On the evidence the mother engaged S in endeavouring to return the child to her on 1 October 2004. She returned on 3 October 2004 with bolt cutters. From the evidence before me I infer that the mother coached the children to make disclosures and I find that she asked leading questions of them. The mother complained about lies being told by State Welfare officials, police being incompetent and other welfare officials being guilty of sexual abuse or harassment. She was dissatisfied with the Contact Centre and made complaints about them.
Part of her evidence was somewhat surreal. There was a report by the child that in a report from Dr S dated 20 February 2007 she observes (at page 12):
“[The child] spontaneously added “mum came to the gate (at her father’s house) and said not to tell dad”. She added “I had to tell him, at first I felt shy”.
The mother’s response to that was she had not seen the child and that the father had arranged for someone else to go to the gate and “trick the child” into believing that it was her mother. This evidence by the mother was simply arrant nonsense.
The mother does not concede a good relationship between the child and the father and is concerned that the child sleeps in her father’s bed every Friday night.

The mother is treated by a Dr R and takes Luvox for anxiety and depression and has been seeing a doctor since 2005. No report has been provided by this doctor. She denies that she has said to Dr G the father is a paedophile, I do not accept her evidence in that regard.
The mother has taken whatever steps she can to achieve the end she seeks, that is the return of the child. The mother conceded in cross-examination that she had made at least twelve reports to the Child Abuse report line between August and October 2004 and has made at least twenty such calls all together and has made written statements to the Department.
The mother provided hand-written statements by herself and provided statements from the children which she had written out herself and I infer she was significantly involved in their preparation. The mother prevaricated in relation to the Safety Agreement that she had entered into with the Child Welfare authorities regarding R and J. She is convinced the father is a sexual abuser and will not accept evidence to the contrary. She cannot accept that the child’s relationship to her reflects an ability of the father not to diminish the mother’s relationship with the child.
The mother’s husband gave evidence in accordance with his statutory declaration of 7 May 2005. He was asked evidence in chief as to whether, on 26 March 2005 the child saw S, J and/or R. He said the boys were with him all afternoon and that they did not see the child.
The mother’s husband confirmed disclosures made by the children and said that he did not interview them. The mother’s husband had been a police officer for forty years. He is a partisan witness and was endeavouring to assist the mother. I infer that the disclosures made to him arise out of coaching by the mother or misunderstanding on his part.
The mother’s husband denied that he ever told the boys that their father was a paedophile although it is clear that when the children were interviewed in October 2004 S said words to the effect that “the father was a paedophile and that his new dad ([the mother’s husband]) knew because he was a Federal copper”. The mother’s husband would have the court believe that his relationship with the mother was not significant until late 2004 or early 2005 when the mother moved in with him. The mother said she was living with her husband from June 2004. It is of significance that S regarded the mother’s husband as “his dad” by October 2004. That is perhaps not unexpected in that Dr G observed that “[S] seems mostly to be quiet friendly and craved affection”. But is it indicative that a relationship exists between the mother’s husband and the mother by October 2004.
Ms H gave evidence in the mother’s case. Her primary evidence was contained in an affidavit filed 26 April 2005 (sworn 22 April 2005), a hand-written affidavit sworn 4 May 2005 and a further hand-written affidavit of 17 June 2005 and sworn 17 June 2005. Ms H is a friend of the mother and her evidence relates to supervision of the child between March 2005 and June 2005.
In Ms H’s first affidavit she noted that the paternal uncle was present. Ms H said that the child was in her company for the whole of the period of the contact which occurred at McDonalds and then later at home. At the start of the contact period she said the paternal uncle said there was a verbal altercation between the mother and him. Her evidence was that the mother said to the paternal uncle “you are a rapist and a sicko”. The mother was shouting and also said “your sick in the head”. The uncle stood next to the car and pointed his finger at her head and made a sign with a gun, used obscenities at the mother and said to the mother “you are dead”. Ms H moved the child away from this confrontation.
She said that the mother took a tape recorder on contact visits and made some recordings of what was said by the child.
In respect of the tape recording of the contact visit on 8 June 2005 Ms H’s evidence was different from that which was heard by the police and social workers from the tape recordings. Ms H was defensive in her demeanour. On balance I prefer the recollection of the social workers and police officers in respect of the tape recording.
Ms H gave evidence that she was relieved now that she was not supervising the time that the child spent with her mother as it put a strain on her friendship with the mother. She said “I found it difficult because I knew how it felt”.
The evidence of Ms H was that she was concerned that the child and her sister B had been “both removed from the mother”.
In cross-examination she said she would now be able to supervise the time that the child spent with her mother but went on to say that if the court made a decision which she disagreed she would find it hard to accept the court’s decision. This predicates against her appointment as a supervisor.
During her evidence she became confused in respect of an allegation of sexual abuse with regard to the father. In her affidavit sworn 4 May 2005 she deposes that it was B who said that the father had “pulled her pants and knickers down and touched her “China””.
In her final affidavit Ms H deposed of the child complaining about nightmares.
In cross-examination she said that it was the child who had made the same statement. Her evidence must be treated with care as her memory is poor and she is a strong supporter of the mother.
Mrs J gave evidence in accordance with her affidavit sworn 6 June 2006. Mrs J knew the father as she had been married to his father for some seventeen years. She had known both the father and the paternal uncle from 1987 until 2002. Her relationship with the paternal grandfather was from 1987 to 2002. Her marriage was dissolved some two years later. In her affidavit she made complaints about the paternal grandfather and paternal uncle.
She knew that the paternal uncle had been convicted of serious sexual offences but was not aware that that conviction has been quashed.
Ms J had been a foster carer and had met the mother through caring for her children. Her evidence was coloured by the breakdown of her marriage to the paternal grandfather.
By leave evidence was given by Ms G on behalf of the mother.
Ms G did not file an affidavit and her evidence was given orally by telephone. The mother, from the bar table (albeit while she was sworn) and the father in evidence confirmed that the person speaking on the phone was Ms G who had a romantic association with the father for about ten months during 2005.
Ms G gave evidence of her concerns about the paternal uncle. Her evidence was that the uncle gets drunk and aggressive. She has no concerns about the father but has grave concerns about the uncle. Ms G had little contact with the father for about a year and a half apart from a chance meeting in the supermarket.
Ms G confirmed that she spoke to the family reporter and that she was supportive of the father’s application, notwithstanding that the relationship was at an end at that time.
Ms G said she received letters from the mother which caused her concern in that she felt threatened by terms such as “she is my daughter not your daughter”. I accept her evidence that she was the subject of some focus by the mother.
She gave evidence of violent incidents she observed of the paternal uncle, including an episode in a motor vehicle when he assaulted the father and another episode when he was angry with the child.
I accept Ms G to be a witness of truth and I give considerable weight to her evidence.
J gave evidence in accordance with his affidavit sworn 13 March 2007. His evidence was somewhat self-serving and the affidavit was prepared and written by the mother. On reading the affidavit it is clear that much of the material contained in there reflects the mother’s view of the events. I give some but not significant weight to the material contained in his evidence.
J left the home in 2001 (in the year following the time the parties started to cohabit).
In terms of the father’s case he gave evidence in accordance with his affidavit and was cross-examined by both the mother and the Independent Children’s Lawyer. On his evidence he endeavoured to arrange time that the child spend with the mother earlier this year but it did not take place.
The child is curious about her mother and has enquired as to why she is not seeing her. His evidence is that she has said “mum is not well”. I accept the evidence of the single expert that this was an appropriate response. The father resides in public accommodation with the child and his mother. His mother moved in with him in late 2006. The paternal uncle sometimes attends the home of the father.
The father has been the subject of regular investigation by police and child protection services as a consequence of allegations made in respect of him.
On the evidence before me the father has had some serious psychological or psychiatric difficulties. He endeavoured to hang himself in Tasmania before the parties commenced cohabitation. He was hospitalised for three months subsequent to the child’s birth. He had one night in hospital subsequent to that time when he had suicidal ideation. His version of that event and the mother’s are significantly different, I accept his version although that version itself is cause for concern.
The father is not currently taking medication nor is he under the care of a psychologist. The father has not been in paid employment for many years although he will need, some time in the future, to take on work as the child is getting older.
The father has no objection to Mrs J being a supervisor for the child when she sees the mother. He observes that Mrs J was a witness of truth. The father has little or no contact with the paternal grandfather and has not seen him for some time. The father said he would contribute up to $20.00 per fortnight towards a cost of a supervisor.
The father has used marijuana for many years. He says his use now is irregular and being at the most once per week. He told the family reporter that he had not used it for two months. He lacked insight as to the use of this drug on the child although he has said he would abide by orders with regard to moderating or stopping his use of that drug in the presence of the child.
The father is somewhat blasé about the relationship between the child and her siblings and has not made significant endeavours to facilitate that relationship. He conceded in cross-examination that he had struck the mother across the face with an open hand after she had struck him with an open hand. He denied that he held the knife to the child’s throat.
There was an issue with regard to the child sleeping with the father. The evidence of the mother was that she slept regularly in the father’s bed. The father’s evidence in court and to the single expert was that the child generally slept in her own bed but would come to his bed if she had nightmares. The only exception to this was Friday night when she would get into the father’s bed and watch one or two DVDs, have a bag of popcorn and go to sleep in that bed. The evidence of the single expert was that, at this stage, and with this child that was not inappropriate. I accept the father’s version of those sleeping patterns.
There were issues between the parties about whether the father called the mother a “slut” or a “bitch”. On balance I prefer the evidence of the father although the relationship between them has been volatile for some years and I am satisfied that each of the parties have used unacceptable language in the presence of the child.
The mother complained that the father had received a television and money from her elder child, H. The father conceded he had been given a television and $500.00 from H. The mother said that she received $20,000.00 in relation to compensation through the trial of her previous husband and used that to buy a car for the father and a new television.
In terms of the notes which caused concern to LG, the father said the notes were in the mother’s hand-writing. The father denied use of any other drugs, however he said that the home life when the parties cohabited was often chaotic. At the commencement of their relationship there were seven children living in the home. The father said that he looked after the child as the mother was studying or going out. In further cross-examination it became clear that, notwithstanding the time he spent with the child, the majority of cooking and housework was left to the mother during the time the parties were together.
The child went to day care two days or more per week when the parties were cohabiting. There was an issue as to whether the father had obstructed this. Very little swings upon that determination.
The father’s present home has three bedrooms and a large backyard. His mother is aged sixty, she is in good health but suffers from type 2 diabetes. She attends the local general practitioner in the area.
Evidence was given by Dr S in terms of her report dated 20 February 2007. This single expert confirmed the accuracy of her report and the findings she made in it. She gave evidence as to her qualifications and I am satisfied that she is qualified to provide this report and provide the expert evidence contained therein.
In the single expert report dated 20 February 2007 the reporter related to the interview with the mother that:
“She [the mother] claimed that [the child] had told [D] that her father had “touched her”. She also referred to court orders of March 2005 providing for contact of four hours between [the child], [M] and [B]in the presence of [Ms H]. In relation to [Ms H] she said “she was a friend – she has turned against me”. It is noted that the mother has brought some photos of contact with [the child] around the time of March 2005. She said “in March 2005, [the father] took [the child] to the police station – she said [J] had touched her at the old house that day”.
Further in her report the single expert observes [15]
[15] Single expert report page 14
“In interview, [the child] presented as bright, vivacious and imaginative. She also presented as a loving and caring young girl who demonstrated a strong attachment to her father as long as a love for her mother. Her responses clearly indicate that she missed having contact with her mum. Her responses also indicated that she accepted the need for having supervised contact, the writer believes that this is partly a result of [the child] having accepted the wisdom of others, as well as some wiriness resulting from the events such as the more recent incident with the mother presenting at [the child’s] gate (as reported by [the child])”
There was an issue as to whether the mother had seen the child at the gate. I infer that the mother did and that the child was aware of it and that the mother has endeavoured to conceal that visit.
The report further observed [16]
[16] Singe export report page 14
“In interview and during observation period, [the mother] presented as having a general love for [the child]. However, her responses in interview suggested that she remains focused on her belief that the father has sexually abused [the child] and that the half siblings do not pose any risk to [the child] in this area. These fixed beliefs seem to be maintained by the mother despite a series of investigations by authorities concluding that [the child] is not at risk in her father’s care and that [the child] should not have contact with [J], [R] and [S]. The writer therefore believes that unsupervised contact would pose an emotional risk to [the child] as the mother is likely to attempt to persuade [the child] of her beliefs in an attempt to “set the matter right” as she sees it. The mother may also be hyper-vigilant of [the child] and expose her to intense questioning in order to assess her level of ongoing risk while in the father’s care”
The recommendations of the expert were that [the child] should continue to live with the father and have supervised contact with the mother. On the evidence before me those recommendations are reasonably based.
The single expert said she found that there had been no sense of coaching with regard to [the child’s] responses.
The single expert was concerned that the mother would endeavour to force her views of the father onto the child and that the mother was hyper vigilant. Further, that supervision would not be necessary once the child attains the age of thirteen, fourteen or fifteen years of age. I accept that evidence.
The single expert was questioned about the value of counselling for the mother in terms of her beliefs that the child has been abused. On her evidence I am not satisfied that counselling would serve any benefit to the mother nor would it be a consequent benefit for the child.
What comes out of the report is that the child has good language skills, goes easily to her mother and as such the father has not involved the child with negative thoughts about the mother.
On Thursday 22 March 2007 the father sought leave to call his mother to give evidence in respect of her observations of the paternal uncle, her living arrangements, the father’s marijuana use and supervision. This application was the subject of agreement by both the mother and the Independent Children’s Lawyer. The paternal grandmother gave evidence by telephone that she has been living with the father since October 2006 apart from one month’s holiday. She intends to remain living in South Australia although wants to obtain her own home near the father’s home so that she can continue to help out with the child. She has not seen the paternal uncle for two months but she said that he used to come around to the home from time to time and had stayed overnight on a number of occasions.
The paternal grandmother did not believe her son was violent and accepted his explanation in respect of the offences in New South Wales with little insight. I do not give great weight to her evidence in terms of the paternal uncle’s propensity for violence or his abuse of alcohol or as to him being an unacceptable risk to the child.
In relation to the father’s use of marijuana the paternal grandmother has not seen him use it and she is opposed to the use of that, or any drug. She was informed and she accepted that if an order was made preventing or limiting contact between the child and the paternal uncle that she would obey any such order.
A family report was prepared in these proceedings in 2005. The family reporter gave evidence in accordance with her report. That report came to the same conclusions as that of the single expert and I am satisfied that the family reporter had the expertise to provide the family report and that her conclusions are reasoned and reasonable. The family reporter believes that the mother has a genuine belief that the child was sexually abused by the father. The reporter has not seen the parties for about two years.
The family reporter also confirmed[17] that Dr G’s view that the father was “a well known paedophile” was as a result of information provided to him by the mother and her husband.
[17] Paragraph 24 of the family report
The Independent Children’s Lawyer tendered reports from Ms L being letters[18] dated 1 July 2005 and report dated 14 October 2005 (the later report had been signed on behalf of the witness but being adopted by her). From her evidence I find that the tape recording of the contact with the child in June 2005 was taken by the police and a transcript has not been provided to the Department.
[18] Exhibit ICL5
I accept her evidence and I prefer her analysis of the tape recording.
Ms L gave evidence that she, the police and child protection determined not to re-interview the child as in their opinion there was no need for that further interview and that such interview would be abusive of the child.
Ms L had a discussion with the mother but as Ms L observed[19]:-
[19] Report 14 October 2005
“The mother was unable to accept that she had asked leading questions of the child which led to the child providing information to the mother which she wanted to hear. After some twenty minutes [Ms L] terminated the conversation as it became clear that the mother did not agree with the CYFS concerns about the matter which the mother obtained the disclosures from the child. The mother maintained that the child made disclosures fully without any influence on the mother’s behalf”.

Ms L later spoke with Ms H as is set out in the third paragraph of her report of 14 October 2005. I do not accept that the disclosures made by the child on tape recording where other than those induced by the mother and in an inappropriate way.
A report of Ms I was tendered and dated 9 June 2005 [20]. Ms I was available for cross-examination but this was not sought by either the mother nor the father’s counsel.
ii)[20] Exhibit ICL6
Findings
One of the significant issues is whether the child is at risk of sexual abuse in the care of supervision of the father. The evidence in that regard is set out in these reasons but it is more particularly set out in the affidavits of the mother and some of her witnesses.
The mother’s first husband (the father of her elder six children), was convicted of sexual abuse on one or a number of those children. As a consequence the mother was sensitised to this behaviour. During the time that the parties lives together were allegations that a number of her older boys, sexually interfered with their younger siblings. That was the subject of investigation and in part dismissed and in part accepted (at least by the mother). There was no suggestion of sexual abuse with regard to the father until after separation.
The parties separated in June 2004 and the child and her siblings M and B remained with the father for about three weeks. Eventually M and B went to live with the mother and were later put into foster care.
In early August 2004 the mother and J went to pick up the child. At that time there was an issue as to whether the child wanted to go or not. The mother deposes that the father said:
“[she did not go] because [the child] told [D] yesterday that “daddy touches my bum and wee wee and I [presumably the father] heard her from the other room”.
There was apparently a confrontation and the mother says she could hear the child screaming out “daddy touches my bum and fanny”.
The mother says that there have been a number of disclosures since that time. In particular an event in June 2005 which was taped. The tape recording was lost and I have dealt with that tape recording earlier in these reasons.
In relation to the events in early August 2004 the mother’s view is supported by the evidence of her son J. However, this must be seen in the context that the affidavit was written by the mother for J. There have been significant enquiries in relation to these allegations.
Once allegations like these have been made they are difficult to refute. The father did not call H or her partner D to give evidence. On balance I cannot dismiss the allegations although they are tenuous. I am unable to find the allegations established. I am satisfied that the allegations are such that they do not present an unacceptable risk for the child to continue to live with the father.
Another issue with regard to unacceptable risk is in terms of the mother inculcating the child with the belief that she was sexually abused by the father. On the evidence before me I find that the mother has a core belief that the child was sexually abused by the father and is not likely to be easily dissuaded from that view. I accept the evidence of the single expert that counselling will not help in this regard. The mother’s interpretation of the tape recorded evidence and her evidence generally is such that I am able to find that she will continue with that belief and, given an opportunity, will endeavour to inculcate in the child that belief. That will damage the relationship of the child with both of her parents.
This does not mean that the child should not spend time with the mother but such time should be supervised until the child is aged thirteen.
There is evidence from both the father and the mother that one has been violent to the other. For the purpose of s61DA(2) of the Act I do not need to make a finding but I am satisfied that there are reasonable grounds to believe that a parent of the child has engaged in family violence within the definition ascribed to that term under the Family Law Act. Further it was conceded by both parties and the Independent Children’s Lawyer that this is a matter where the presumption ought not apply.
I find that the paternal uncle constitutes an unacceptable risk to the child if he is left alone in her care or if he is intoxicated or affected by alcohol whilst in her care. He has been convicted of a serious assault in respect of a young girl and was later convicted of serious sexual assault, although that conviction was set aside and a new trial ordered, the Director of Public Prosecutions in New South Wales did not proceed with a new trial. However his actions in relation to that young child are significantly greater than that of which he has disclosed to the father. The father seems somewhat reluctant to take an adverse view of the paternal uncle and that itself is a concern.
The other risk is in terms of the paternal uncle, of which I have referred to above. The father is blasé in terms of his recognition of the risk that his brother poses to the child. He has alcohol problems, anger problems and the allegation made in 1995 give rise to significant concerns. However, he is part of a small group of family who support the father. I will not prohibit contact between the paternal uncle and the child but such time must always be supervised. I will not reiterate the findings referred to above or the evidence except to say that I find that he presents a risk to the child and orders will be made accordingly.
I find that in terms of the mother’s evidence she misinterprets what others say to her and then adds her colour to this interpretation. She does not accept the outcome of professionals and complains about them when the outcome is different to that which she hoped to achieve. She has no insight as to why M and B are in foster care. The mother has no insight as to the impact of her questioning of the children.
In terms of the father I find that he has struggled with mental health issues for most of his adult life. This has shown itself in terms of his attempted suicide, assault of the mother, assault of one of the mother’s children and hospitalisation. It is no doubt exacerbated by his continuing marijuana use. However, on the evidence before me he has coped well since June 2004 and has required no treatment or medication. Whilst the failure to seek treatment in medication may generally give rise to some concerns his care of the child and the outcomes with regard to the child are indicative that he is coping well.
The father was often blasé in respect of the protection steps he ought to have taken with regard to the child and her siblings when the allegations of sexual abuse were made during the time he was living with the mother. He also is not atuned to the risk that the paternal uncle may pose to the child.
In terms of the expert witnesses I am satisfied that they had the necessary expertise and that their reports were within their areas of expertise.
Dr G provided evidence in a number of reports which were before the Court. From those reports it seems that significant parts of that information came from the mother or her husband. As such the conclusions reached in his reports ought to be treated with great care bearing in mind the findings I have made with regard to the mother’s evidence.
In terms of the factors under s60CC of the Family Law Act 1975 I have taken into account all of the evidence and findings in relation to these proceedings with regard to each of the factors. Many of the factors are reflected in the evidence and if I do not particularly refer to same under the particular heading I have still had regard to that evidence in considering each and all of the relevant factors.
Section 60CC(2)(a)

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

The child has a close and warm relationship with her father. He is able to care for her although he sometimes lacks insight in terms of the relationship and some of her siblings and in terms of encouraging the time that she spends with her mother. There is a benefit in her continuing to have a meaningful relationship with her father.
With regard to the mother the child has an obvious affection for her and need to see her mother. Against this is the risks of the mother inculcating the child with beliefs that she has been sexually abused. On balance there is a benefit to the child in the mother having a meaningful relationship with her. This should be supervised until the child’s early teens.

Section 60CC(2)(b)

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

I refer to the findings with regard to the allegations of abuse in so far as the father is concerned. There is no unacceptable risk of the child remaining in the care of the father and the father having parental responsibility for her. There is some risk with the mother’s continuing beliefs that the child has been sexually abused. There is risk of the child being exposed to violence in respect of her interaction with the paternal uncle. I have had regard to this factor in coming to the determinations with respect to both parental responsibility and time.
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;
In terms of the views of the child I accept the evidence of the single expert where she observes [21]
[21] Single expert report page 14
“In interview, [the child] presented as a bright, vivacious and imaginative. She also presented as a loving and caring girl who demonstrated strong attachment to her father as long [well] as a love for her mother. Her responses clearly indicated she missed having contact with her mother. Her response also suggested that she accepted the need for supervised contact. The writer believes that this is partly as a result of [the child] having accepted the wisdom of others, as well as some awareness resulting from the events such as a more recent incident of the mother presenting at [the child’s] gate (as reported by [the child]”).
I find that her present living arrangements are something that the child has a view is comfortable but she also has a view that she needs to see more of her mother. I give some weight to that view.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

Both parents have a good, loving and bonded relationship with the child as she does with them.
In terms of the relationship with each of the parents I reiterate the material set out in these reasons and the evidence and particularly the evidence of the single expert. The father has been the principle carer for the child since June 2004 and she is managing well in that regard. She speaks well and is apparently coping well at school. As to her relationship with her mother the comments with regard to this have been dealt with earlier in these reasons. The relationship needs to be nurtured, but in a supervised way.
The father has not taken active steps to ensure that the child has seen her mother since August 2006. He is to be criticised for this. The father has not been negative of the mother. It is important that the child retain relationships with her siblings. With the three older boys, J, R and S this contact ought to be supervised. There are serious allegations as to the boys interaction with their younger siblings at the time the parties were cohabiting. I make no positive or negative findings in relation to those allegations but the court is concerned that there is a risk if the child spends time with her elder brothers which is not properly supervised. The mother would not be a proper supervisor. I have made orders that the mother attend the child’s school functions, this should not be taken as an invitation to bring J, R or S. The time they spend with the child ought to be supervised by an independent person and away from her school.
The child had a good relationship with her siblings M and B. On the evidence I find that she still has recollections of that relationship and I have regard to the need for that relationship to be reintroduced and continued.
(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 mother does not trust nor care for the father. If the child is in her care or even if she spends unsupervised time with the mother I am satisfied the mother will endeavour to enview into the child negative views of the father which reflect her own views. She would not be willing to facilitate the relationship between the child and the father, despite her submissions to the contrary.
The father attends and is reactive in a positive way to the needs of the child seeing her mother. He is not pro-active and that causes me some concern. Similarly the father is not pro-active in terms of arranging for the child to spend regular time with B and M. He leaves it to others to assist in that regard.
Neither party have the ability to communicate effectively with the other.
The mother has been in receipt of school reports and notices for some time. It is in the child’s best interests that the mother is involved at school. I do not intend that the mother should attend parent teacher nights with the child but she should be able to have meetings with the teacher, Principal and school counsellor in the absence of the child. The mother should be able to attend school functions such as swimming carnivals, sports carnivals, Easter and Christmas parades etc on the basis that she does not raise these issues with the child or with friends of the child or the school community.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

For the reasons set out above a change of residence would not be in the child’s best interests. It would involve a significant change to her life and would involve alienation from her father. There is some doubt as to whether the mother would have the capacity to care for her bearing in mind that the State Welfare Authorities have concerns with regard to her care of her younger children in that they are in foster accommodation.
(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;

The proposed orders will involve difficulties and expense. Both parties will need, initially to contact the Contact Centre to arrange for the child to spend time with the mother. What would be better would be for a mutually acceptable person to supervise the time. That supervisor would need to understand and acknowledge the concerns of this court with regard to the risk of the mother interrogating the child and endeavouring to have her parrot the mother’s views with regard to the risks that the mother believes the father poses to the child. There may be some cost for such a supervisor. I note that the father is prepared to contribute $20.00 per fortnight in this regard.

(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;

The father has shown a workable capacity to care for the child’s needs. The same cannot be said of the mother.
One of the concerns I have with regard to the father is his psychiatric history and I refer to the findings I have made in that regard.
(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;

Not relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

I simply reiterate the material set out in the reasons and as set out above.

(j) any family violence involving the child or a member of the child’s family;

There is no evidence of violence by the father to the child since separation. There is evidence of a sometimes violent relationship between the parties prior to separation. The father acknowledges that on at least one occasion he hit the mother and I am satisfied, on the evidence, that the mother hit the father. The household in which the parties jointly lived was chaotic. I refer to my findings in this matter and have taken those matters into consideration when coming to a conclusion. The father was also violent to S. I have taken this into account. I have had regard to the evidence in respect of the paternal uncle.
(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;

Not relevant.
(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;

The court doubts that the mother will accept these findings. This may lead to further proceedings, however this is but one factor to take into account.
(m) any other fact or circumstance that the court thinks is relevant.

I have not set out all of the evidence put before me in the hearing, it is not appropriate to do so. However I have taken into account all of the evidence and all of the findings.
In considering the parenting orders to be made in regard to the child I have taken into account the extent to which each the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent as set out in paragraph 60cc(4) and I have had regard to the matters set out in s60CC(4)(A).
Conclusions
The first determination I need to make is as to parental responsibility. Each of the parties seeks an order that they are solely responsible as parents. It is generally conceded that this is not a matter where there ought to be equal shared parental responsibilities for the reasons set out above.
In respect of parental responsibility I reiterate that this is a matter where s61DA(2) applies there being reasonable grounds to believe that a parent of the child has engaged in family violence. This sub-section seems somewhat prescriptive as if there is a finding of reasonable grounds it means the presumption does not apply. This does not, of course, mean that it would exclude the court in specific circumstances from making an order for equal shared parental responsibility in any event.
Even if the presumption was not excluded by s61DA(2) of the Act I would have found that it had been rebutted by the evidence before the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her. In that respect I have regard to all of the factors to the evidence and the factors set out in s60CC.

For those same reasons I do not find that the status quo provided under s61C of the Family Law Act ought to apply. I determine that it is not in the bests interests for the parties to have each have parental responsibility. The child will be living most of the time with the father and as such I determine that it is in her bests interests that he have full parental responsibility. This responsibility does not give him sole consent to remove the child from the Commonwealth of Australia, support the issue of an Australian Passport or change her primary residence from more than fifty kilometres from where he is presently living.
As to the living arrangements for the reasons set out above I find that it is in the best interests of the child to continue to reside with the father subject to the conditions referred to above including conditions protecting her with regard to the paternal uncle and providing that the father shall provide the mother with information or access to information regarding education and health with respect to the child.
The question of the time the child spends with her mother needs to be considered. That time will be supervised as set out above. This will continue until the child attains the age of thirteen years. Up to that time the preference of the court is that there be a “friend supervisor” subject to that supervisor being aware of the risks which are referred to in these reasons or alternatively a paid supervisor. However, if that is not available then supervision would be through a contact centre. The contact centre would only be a short term arrangement and a longer term would be much better. The orders will provide that the parties can agree to changes in that regard.
The court has put in place orders restraining behaviour of the parties in an effort to provide for the needs of the child and to take into account her best interests. This deals with the father’s use of marijuana and the involvement of the paternal uncle. It also prevents both parties from involving the child in the conflict that has, up to her present time, existed between the parents.
The mother made written submissions that she and her husband have a stable and loving relationship. That does not seem to be in issue, what is in issue is the mother’s ability to care for the child bearing in mind the matters set out in these reasons. I do not accept the mother’s submission that she is able to provide a stable environment for the child. Nor do I accept her submission that the child would spend regular time with the father and she would not put the father down or denigrate him to the child in any way. Further I do not accept her submission that the child would feel safe living with the mother and that the mother is not overly protective (bearing in mind the findings made in this matter).

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as ROSE and DOUGLAS.

I certify that the preceding 167 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 23 March 2007

[2007] FamCA 251

23 March 2007

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort