S & B

[2006] FMCAfam 447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & B [2006] FMCAfam 447

FAMILY LAW – Child aged 8 years and nine months – father lives in D – mother lives in K – child has lived with father since 2000 – mother seeks change of child’s living arrangements – best interests of child – primary consideration need to protect child from harm – whether failure to attend school regularly abuse or neglect – other indications of abuse and neglect considered – sexual abuse – whether unacceptable risk.

Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65DAC, 65DAE

Re: K (1994) FLC 92-461
N & S & the Separate Representative (1996) FLC 92-655
M & M (1998) FLC 91-979
W and W [ Sexual Abuse allegations: unacceptable risk] [2005] FamCA 892
JG & BG (1994) 18 FamLR 255

Applicant: D T S (S)

Respondent: M A B

File Number: DNM516 of 2005

Judgment of: Brown FM

Hearing dates: 16 and 17 August 2006

Delivered at: D

Delivered on: 31 August 2006

REPRESENTATION

Counsel for the Applicant: Ms Davis

Solicitors for the Applicant: Davis Norman Solicitors

Counsel for the Respondent: Ms Terry

Solicitors for the Respondent: Janet Terry Barrister & Solicitor

Counsel for the Independent Children’s Lawyer: Ms Allan

Solicitors for the Independent Children’s Lawyer: Mary M Allan

ORDERS

1. That all previous orders be discharged.

2. That the child D T S born 15 October 1997 live with the mother.

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

4. That each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the child on a day to day basis during periods when the child is in his or her care or is spending time with either of them.

5. That the child spend time with the father as follows:

   (a)On each alternate weekend during school terms from after school on Friday until 4.00pm the following Sunday afternoon or 4.00pm the following Monday afternoon in the event that Monday is a public holiday;

   (b)For half of the school holidays at times as agreed between the parties and failing agreement for the first half of each school holiday starting in 2006 and each even ending year thereafter and the second half of each school holiday in 2007 and each odd ending year thereafter;

   (c)At any other times the parties may agree from time to time.

6. That the father communicate with the child by telephone on two occasions each week at times to be agreed between the parties and failing agreement to be 6.30pm on each Tuesday and Thursday.

7. That the mother be responsible for the deliver and collection of the child before and after each period of time he spends with the father and that the child be exchanged between the parties at the P Police Station.

8. That all other applications be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
D

DNM516 of 2005

D T S (S)

Applicant

And

MARIKA ANN B

Respondent

REASONS FOR JUDGMENT

Introduction

1. D T S (J) born 15 November 1997 is the much loved child of D T S (S) “the father” and M A B “the mother”. 

2. Since early 2003, D has lived predominantly with his father in P, an outer suburb of D.  Before that, he lived in P with his father for several years.  It is common ground that, during these periods, D did not have consistent contact with his mother. 

3. Ms B has lived in K for many years.  K is approximately 300 kilometres south east of D. Between September and December of 2005, D lived with her in K.  There is considerable controversy about how this situation came about and, on 21 December 2005, the court ordered D to be returned to the father’s care in P. 

4. It is the mother’s position that she has become increasingly concerned about the standard of care the father is providing for D.  She asserts that D is not properly supervised by the father; his school attendance is poor; he has been inappropriately disciplined and neglected by the father; and, because of the father’s alcohol use, D has been subjected to violent and conflictual situations.

5. As a result of these matters, Ms B seeks that D should immediately come and live with her and her partner, K R, in K.  It is her position that D’s welfare will be under serious threat, if he continues to live with the father.

6. The father denies that he is the neglectful and abusive parent portrayed by the mother.  In fact, he categorises the mother herself as a poor parent, who has effectively abandoned D and responsibility for his care, over many years, to him.  The father points to the fact that he has been the only consistent parent in D’s life, up to this stage.  

7. Accordingly, he believes it would be highly traumatic for D to be subject to a radical change of environment and carer at this stage of his development, particularly given his bond with his mother and Mr R is not strong.  For these reasons, Mr S seeks orders that would continue the existing arrangements for D’s care, whereby he lives with his father and spends time with his mother at weekends and during school holidays.

8. In addition, Mr S has many criticisms of the mother and Mr R, particularly in relation to their use of cannabis.  He also asserts that Mr R has sexually abused D in the past.  The allegations, which he makes are very serious ones and, if true, would pose a shocking threat to D’s welfare.  The mother and Mr R deny these allegations and believe Mr S has made them up to damage their reputations and advance his case. 

9. Accordingly, the positions of the parties are bitterly polarised as each has made allegations that the other is not an appropriate person to care for a child of D’s tender years.  Because of the serious allegations made in these proceedings, the Department of Family and Children’s Services “FACS”, the N T Government body legislatively mandated to safeguard the welfare of children in the Territory, was invited to intervene in these proceedings.  FACS declined this invitation.

10. The father points to FACS’ apparent lack of concern about D’s welfare, whilst in his care, as being supportive of his assertion that D is at no risk of harm, whilst with him.

11. In addition, as a result of the concerns raised by the parties, on

    
    

    21 December 2005, it was ordered that D be separately represented in these proceedings.[1]  The lawyer appointed for D is Ms Mary Allan, an experienced D solicitor.  It is Ms Allan’s view, after taking part in these proceedings and reviewing all the evidence available to the court, that there should be a change in D’s living arrangements, along the lines sought by the mother.

    [1] See Re: K (1994) FLC 92-461 at 80,773

12. In addition, the court ordered that a family report be prepared to examine the nature of D’s relationship with each of the parties; what his views were, if any, about where he should live in future; and any other matters relevant to his welfare.  The report was prepared by Ms H B, an experienced psychologist.  In her report dated 2 June 2006, Ms B recommended as follows:

    “It is respectfully recommended that D live with his mother in K and spend significant time with his father in D.  It is my opinion that it is in D’s best interests to live with his mother who is more likely to maintain a safe and secure environment for him.  In this location he will be less likely to be exposed to violence and physical punishment and more likely to attend school.  I believe that the relationship between D and his mother has developed positively in recent times and that D will adapt to spending less time with his father.”[2]

    Mr S does not accept Ms B’s recommendations and believes that her report is flawed and biased against him.

    [2] See family report at paragraph 34

13. Due to the serious allegations the parties have made against one another in this case, the N T Police have had some involvement with the family in this case.  As a result, a number of records have been subpoenaed by the parties from the police.  Some of these documents have been tendered into evidence.  In addition, I have before me some records from the S H Primary School in P, which is the school D has recently been attending.  Finally, I have some medical records, which relate to Mr S’s admission to the psychiatric ward of the R D H between 1997 and 1999. 

14. On his father’s side, D is heir to a rich cultural tradition which includes connections to the Torres Strait and Papua New Guinea.  From his mother’s side, he has an Aboriginal background.  Neither party has placed a strong emphasis on these cultural issues but it is obvious that D will identify and be identified as an Indigenous child and person in future. 

15. The parties were involved in a relationship together in K in the 1990’s.  They have been separated for many years.  One of the significant issues between the parties is precisely when D came into Mr S’s care and the circumstances surrounding it, particularly whether the mother agreed that D should go to live in P with the father.  It will be necessary for the court to resolve this factual issue and many other issues of fact, which have subsequently arisen between the parties.  Necessarily, this will involve the court making some assessment of the credibility of the parties concerned and their respective witnesses.

16. The central issue in this case is clear.  Will D’s interests be best served by a continuation of the arrangements for his care, which have been in place for many years?  Mr S places considerable weight on his consistency and reliability and the absence of concern from FACS in this regard.  On the other hand, are the issues raised by the mother of such moment that the court should change the arrangements for D’s parenting, notwithstanding the lengthy period of time he has been in the father’s care?

17. These proceedings are directed to resolving this complex dispute between the parties.  When parents are in dispute as to where and with whom their child should live, it is the best interests of the child concerned which are paramount.  The court must decide which of the parties’ competing proposals are most likely to advance the best interests of the child concerned. 

The documents relied upon

1. The father is the applicant in these proceedings, which he commenced on 30 November 2005.  He relies on the following documents:

   ·An affidavit of himself filed 14 August 2006;

   ·An affidavit of D U filed 14 August 2006.

2. In a minute handed to the court, he indicated that he sought the following orders:

   “1.That the child of the relationship D T B born 15 November 1997 live with the father.

   2.That the parties share parental responsibility for the child.

   3.That the mother spend time with the child as follows:

   (a)each alternate weekend from after school Friday until 4.00pm Sunday afternoon;

   (b)     for half of all school holiday periods;

   (c) by telephone at all reasonable times;

   (d)     at other times agreed.”

3. The mother responded to this application on 19 December 2005.  She relies on the following documents:

   ·An affidavit of herself filed 12 July 2005;

   ·An affidavit of her partner, K R filed 24 July 2006;

   ·An affidavit of C R filed 14 August 2006.

4. In addition, in a minute handed to the court on the day of hearing, she indicated that she seeks the following orders:

   “1.That the order made by the Federal Magistrates Court of Australia on 21 December 2005 be discharged.

   2.That the child of the relationship D T B born 15 November 1997 live with the mother.

   3.That the father spend time with the child:

   a.    Every alternate weekend from after school Friday until 4.00pm Sunday afternoon; and

   b.    For half the school holidays at times as agreed between the parties.

   4.That the child have communication with the father twice each week by telephone.

   5.That the parties share the responsibility of transport with the father collecting the child from K at the commencement of his time with the child and the mother collecting the child from the father at the conclusion of contact.

   6.That changeover take place at P Police Station and K Police Station as the case may be.”

5. Ms Allan did not file any affidavit material.  She did not provide a formal copy of the orders which she seeks in this matter but, as previously indicated, it is her position that the court should make the orders which the mother seeks. 

6. Each of the parties was represented by counsel.  In the father’s case by Ms Davis and in the mother’s case by Ms Terry.  Each of the deponents of the affidavits listed above was required for cross-examination and each was cross-examined by the counsel for the opposing party and by Ms Allan.  In addition, Ms B was cross-examined by each of the parties.  She gave her evidence via a videolink from the court premises in A S. 

Background

1. Before turning to the evidence in more detail, it will be useful to set out some background to the matter. 

2. The father was born in K, P N G on 18 August 1967.  The mother was born in D on 12 June 1966.  The mother has a child from an earlier relationship.  This child is P A B born 23 November 1987.  D was born in D on 15 November 1997.

3. P has special needs.  When he was aged about five, he was struck by a semi-trailer and suffered brain damage.  Currently P lives with the mother’s sister in K.  He has completed a traineeship and works in a CPEP scheme.

4. It is unclear both when the parties began to live together and when they finally separated.  Not a great deal turns on the first point, it was sometime between 1989 and 1991.  The parties were certainly living together when D was born.  They lived in K, where the mother has relatives, including her mother and sister. 

5. The parties vehemently disagree when they finally separated.  The father asserts it was in early 1998, when D was about 6 months old.  The mother asserts it was in November of 1999, when D was about 2 years of age.  This issue has significance because on it turns the question of the involvement of the parties in the care of D in his early developmental years. 

6. The mother asserts that she was D’s primary carer for the first two years of his life, whilst the father was unreliable in the care he provided for D.  The father asserts that he cared for D primarily from 1998 onwards.  In his affidavit material, the husband asserts he went to live in P with D in 1998.[3] 

   [3] See father’s affidavit at paragraph 9-10

7. In this regard, Mr S’s medical history is relevant.  This record shows that the father had the following admissions to the psychiatric unit of the R D H:

   ·10 April 1997 – 30 April 1997: acute paranoid psychosis with alcohol dependency and cannabis use;

   ·16 November 1997 – 3 December 1997: chronic paranoid schizophrenia;

   ·24 August 1998 – 2 September 1998: chronic paranoid schizophrenia;

   ·30 August 1999 – 6 September 1999: relapse paranoid schizophrenia with paranoid traits related to conflict with estranged wife;

   ·2 October 1999 – 15 October 1999: relapse of paranoid schizophrenia;

   ·11 November 1999 – 17 November 1999: mild relapse of paranoid schizophrenia.

8. It is not necessary to analyse these medical records in any detail other than to say that it seems clear that Mr S was at times very ill indeed and exhibited unusual behaviour, which must have been very alarming to those who observed it.  It is also obviously the case that he was present in the N T for regular periods in 1997, 1998 and 1999. 

9. It is the mother’s position that the parties maintained their relationship during this difficult period, although in early September of 1999 she was compelled to obtain a domestic violence order against the father at the Local Court at K.  This order was wholly revoked on 8 September 1999, when the parties reconciled.[4]  The mother was compelled to obtain another such order against the father on 11 November 1999.  This coincided with the father’s final psychiatric admission and on the mother’s evidence, was precipitated by the father hitting her and pulling her hair, so that she had to call the police, which resulted in the father being involuntarily detained pursuant to the provisions of the Mental Health Act.  The order of 11 November 1999 restrained the father from approaching both the mother and D and P. 

   [4] See Exhibit “A”

10. Around this time, the mother began her relationship with Mr R in K.  It is the father’s position that the mother used the domestic violence orders against him and made reports to the police and mental health authorities in K in order to pursue her relationship with Mr R.  The mother denies this.  It is her position that the relationship between her and Mr S was one characterised by violence perpetrated upon her by the father.  She asserts that this violence at times included P.  As a result of all these matters, it is her case that she was and remains frightened of Mr S. 

11. There can be no doubt that, by early 2000, D was in the father’s care and was living with him in P.  How this came about is one of the central disputes in the case.  It is the mother’s position that, after taking advice from medical staff at the psychiatric unit at the R D H, she agreed to D spending a month with his father, whilst he was staying with relatives in P, but she did not agree to D being taken to P. 

12. On the other hand, it is the father’s position that D had been predominantly in his care for a considerable period of time.  He asserts that the mother agreed to him taking D to P and indicated that she would come to P in about one year’s time to collect him.  It will be necessary for the court to make a finding in regards to this issue.

13. On 12 March 2001, the father filed an application in the Court of Petty Sessions in P seeking orders in respect of D.  The mother acknowledges that she was served with a copy of the father’s application at her home in K.  On 23 April 2001, the court in P made the following orders:

    “The said application be adjourned to 15 May 2001 at 10.00am in the general list and be transferred to the Family Court of W A.

    Until further order of the court, the child, D T S born 15 November 1997, remain in the care of the applicant father.”

14. It is unclear from the evidence if any further orders were made in respect of D by the Family Court of W A.  It is however clear that the mother elected not to take part in these proceedings.  It is her position that she had some difficulty in obtaining legal advice in K at the time.  From the father’s perspective, it is evidence of her disinterest in D, which he maintains has been the mother’s stance since early 1998. 

15. In either late 2002 or early 2003, the father returned to live in D with D.  The father obtained a unit at G from the Housing Commission of the N T.  He and D have been living in this unit for at least the past two years.  It is the father’s position that, in part, he returned to the N T so that D could pursue his relationship with the mother.  However, he asserts that the mother failed to take any great interest in D and her contact with him was at best sporadic and unreliable.  He asserts that, when the mother did spend time with D, she invariably failed to return him, as had been agreed between the parties.

16. On the other hand, it is the mother’s position that she continued to be fearful of the father, who was often threatening towards her.  She asserts that the father was not helpful in facilitating her spending time with D and she became increasingly concerned about the level of care Mr S was providing D. 

17. In September of 2005, D came into the mother’s care.  Again there is considerable controversy between the parties as to how this came about.  From the mother’s perspective, she visited the father’s home to deliver some clothes and gifts she had bought for D.  When she arrived there, she asserts she found the father in an intoxicated state.  During a conversation between the parties on this occasion, the mother says that Mr S told her he was having difficulty in coping with D and voluntarily placed him in her care. 

1. On the other hand, it is the father’s position that the mother arrived at his home and asked his permission to take D on a short visit to the shop.  She did not return D after this visit, as had been arranged, and clandestinely took him with her to K.  Thereafter, it is the father’s evidence that he travelled to K to search for D but was unable to find him. 

2. There can be no doubt that, on 6 October 2005, the mother applied for a further domestic violence order against the father in the Local Court at K.  It is the father’s position that this order was a subterfuge to prevent him recovering D from the mother.  On the other hand, it is the mother’s position that she was fearful of the father, particularly because of threats he had made on the telephone to her.

3. The documentary evidence is clear that D attended K S Primary School for the whole of the final term of 2005.  He was absent from school on two occasions of the 7 weeks during which he attended this school.

4. On 30 November 2005, the father commenced proceedings in this court seeking a recovery order in respect of D and an order that he live with him.  The mother responded to this application on 19 December 2005.  On both an interim and final basis, she sought orders that D should live with her and have contact with his father at times to be agreed between the parties.

5. These competing applications were heard by the court on 21 December 2005.  On which occasion the following orders were made:

   “That the child of the relationship D T B born 15 November 1997 live with the father.

   That the mother have contact with the child as follows;

   a)from 21 December 2005 until 1.00pm on 2 January 2006;

   b)each second weekend from Friday afternoon until Sunday afternoon commencing 14 January 2006;

   That pursuant to Section 68L of the Family Law Act 1975 (as amended) that the child D T B born 15 November 1997 be separately represented and that such representation be arranged by the Legal Aid Commission of the N T AND that to expedite the appointment of the Child Representative within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

   That pursuant to section 91B of the Family Law Act 1975 the Department of Family and Children Services is invited to intervene in these proceedings.”

6. Accordingly, D returned to the father’s care on 2 January 2006.  D returned to the S H Primary School, which was the school he had been attending prior to going to live with the mother.

7. As perhaps can be readily imagined, the period between January 2006 and this hearing has been one of escalating tensions between the parties.  The necessary exchanges of D between the parties, so that he can spend time with the mother, have been particularly marked with difficulties.  These difficulties have included the high level of tension between Mr S and Ms B; the problems they have in communicating effectively with one another; and the distance between K and D.  As a result of these difficulties, Mrs C R, the mother of K R, was enlisted to assist at contact handovers. 

8. The parties agree that there was an unpleasant incident between Mr S and Mrs R at one particular handover occasion.  Although, once again, Mr S and Mrs R disagree as to what actually occurred and who was to blame for the difficulties.  At any event, it is clear that the parties agreed that the orders of 21 December 2005 needed to be modified and, on 6 June 2006, it was ordered that D be exchanged between the parties at the P Police Station.

9. On 8 February 2006, the Director of Legal Services at the Department of Health and Community Services wrote to the court indicating that Family and Children’s Services declined to intervene in these proceedings.  They did not provide any specific reason for so doing other than that it was believed that such an intervention “would not appear appropriate.” 

10. It is clear that FACS has had some involvement with this family in the past.  I have not been provided with any specific documents from FACS.  However, the documents subpoenaed from the N T Police, which have been tendered in these proceedings, indicate the following:

    ·30.8.99 – 30.9.99: DV from mentally unstable father.  Father sectioned, children safe with mother.

    ·10.11.99 – 15.12.99: Substantiated (emotional, DV and emotional other) referred by hospital.  DV incidents, father mentally unwell, non-compliant with medications and aggressive.  Father known to have previously lit fire in house with mother and children in it. 

    ·16.6.04: The police were called to premises in G, where Mr S was detained for protective custody due to his level of intoxication.  When searched at the police watch house, he was found to have in his possession “7 deal bags of cannabis plant” in his cargo pants pocket.  Mr S had not been searched earlier as he had been aggressive.

    ·26.10.05: Insufficient information – referred by mother via K Office, allegations of father neglecting child.

    ·2.2.06 – 23.05.06: No abuse or neglect found – referred by neighbour, allegations father is not providing adequate supervision.

    ·31.03.06: Insufficient information – referred by KARU, forwarding an email from “grandmother” alleging neglect and physical by father.

    ·20.04.06: Insufficient information – referred by “grandmother” alleging physical, emotional and neglect.

    ·8.5.06: Father is taken into protective custody due to his intoxication in P. 

    ·7.7.06: D, the mother and Mr R are interviewed by the Sexual Crimes Unit in respect of an allegation made by the father that Mr R had indecently dealt with D.

11. On 4 May 2006, the mother’s solicitor filed a notice of child abuse or risk of child abuse in the court.  In this notice, the mother alleged that, on 11 February 2006, she had noticed bruising on D’s thigh and knees, which D disclosed to her, had been caused by the father striking him with the cord of a mobile phone charger.  Further, the mother alleged that on 24 March 2006, the father had struck D around the head with a plastic bag.  Finally, the mother alleged that on 19 April 2006, the father had violently grabbed D, shaken him and dragged him by the hair.  This last incident allegedly occurred in the presence of Mrs R at a contact handover.

12. Ms B interviewed the parties for the family report and observed each of them with D on 10 May 2006.  Her report was released to the parties on 5 June 2006. 

13. The father affirmed his trial affidavit in these proceedings on 14 August 2006.  In that affidavit, he deposed that D had complained to him that during the time he was staying with the mother in K, he had been left hungry because the mother had used her money to buy drugs and alcohol rather than food for him.  He also alleged that he had been locked in a room at the mother’s place of work, whilst she attended to her work duties.  Finally, he alleged that D had been a witness to his mother exchanging sex for marijuana with a person known as “B B”.[5]

    [5] See father’s affidavit at paragraph 41

14. It is Ms B’s evidence that these serious allegations were not raised with her during the interviews for the family report.  It is the mother’s position that none of these incidents occurred and that the father has concocted them. 

15. The father further alleges that in May of 2006, a friend caught D sniffing aerosol spray.  When confronted about his behaviour, D indicated that he had learnt to sniff in this way when he had been in his mother’s care.[6]  Again, this was not a matter which was raised with Ms B.  The mother denies that D has ever sniffed any intoxicating substance, whilst in her care or that he has been exposed to other children who are such sniffers.

    [6] Ibid at paragraphs 42-44

16. As has been earlier indicated, on 7 July 2006, the father alleges that D disclosed to him that he had been touched on his genitals by Mr R, whilst he had been in K in late 2005.  As a result, he attended with D at the Sexual Assault Referral Centre and D was interviewed by police officers.  Later both Ms B and Mr R were also interviewed.  The allegation was found to be unsubstantiated. 

The issues

1. Having provided this background, it seems that the following factual issues arise for determination in this case:

   ·When did the parties finally separate?

   ·What was the mother’s role in D’s care for the first six years of his life?

   ·When did the father take D to W A and what were the circumstances of this?  In particular, did the mother agree to D going to W A?

   ·Has the father been violent and abusive towards the mother, both during their relationship and afterwards?

   ·Or was the relationship between the parties one which was mutually volatile, with both parties being abusive and violent towards one another, as the father alleges?

   ·What were the circumstances surrounding the handover, after which Mrs R withdrew her consent to be an intermediary in respect of the exchange of D between the parties?

   ·Has D been sexually abused by Mr R or is there an unacceptable risk that such abuse will occur in future?

   ·Did the mother provide sex in exchange for marijuana, whilst D watched?

   ·Did the mother lock D up whilst she was at work?

   ·Has the father been violent towards D, particularly when he has been drunk?

   ·Does the father leave D unattended, whilst he is out at night and fail to feed him?

   ·What is the cannabis use of each of the parties and Mr R?

   ·What are the implications of each party’s use of alcohol on their respective ability to care for D?

   ·Is D attending school to a proper level?  If not, is there an acceptable reason for this?  And if not, what are the implications for D of him not attending school?

   ·What are the implications of the mother’s failure to be involved in D’s life during the time he was in W A and afterwards?  In particular, is she to be criticised for not fulfilling her responsibilities as a parent during this period?[7]

   ·What were the circumstances surrounding D coming into the mother’s care in September of 2005?  Did the mother conspire to conceal D from the father at this time?

   ·Who of the parties is likely to provide better for D’s welfare at this stage?

   ·What are the consequences for D of there being a change of his parenting arrangements at this time?

   ·What are D’s views, if any, about a change of his living arrangements?

   [7] See Family Law Act 1975 ss.60CC(3)(c) and (4) and (4A).

2. With these matters in mind, I turn to consider the evidence in more detail.

The evidence

1. It is not unusual in parenting cases, where there is a high level of suspicion and antipathy between the parties concerned, for those parties to have radically different views about the circumstances surrounding important events in their relationship.  However, it does not necessarily follow that one of the parties concerned is correct about those events and the other is lying.  Memory is a complicated psychological phenomenon and the extreme emotions precipitated by proceedings such as these can have a distorting effect on it.  It is often said that parties in such conflictual situations view each other through a prism of hostility, which may render them mistaken or lacking in objectivity about aspects of the evidence, but not necessarily dishonest. 

2. I do not think that this is the case in this matter.  Rather, it will be necessary for me to decide whom of the parties I find to be the more credible witness.  The mother was a pleasant and smiling witness, who gave her evidence clearly, if somewhat nervously.  My assessment of her was that she was a somewhat shy and unassertive person.  I regard her as being honest in her evidence to the court.  Certainly, I did not find her to be the manipulative person the father asserted her to be.  Overall, I found the mother to be a reliable witness and I accept her evidence. 

3. This was not my impression of the father.  He has an essentially negative view of the mother and regards her as a deceitful, manipulative and unreliable person.  I am fearful that in his determination to be successful in these proceedings, he has allowed himself to either grossly overstate his concerns or, in some instances, fabricate them. 

4. On the other hand, he downplays the significance of some of his own problems, particularly his period of mental illness and has difficulty accepting that his behaviour during this period may have been frightening.  I appreciate these events took place many years ago.  However, the father was not a good historian in regards to the period and what happened immediately afterwards, particularly in regards to the circumstances of him and D moving to P. 

5. When confronted with matters concerned with his own involvement with the police, the father was evasive and liable to blame others for the situation in which he had found himself.  He was also prone to make sweeping assertions, which had no basis in fact.  One of the bases of his criticisms of the family report was that Mr P, an Indigenous Family Liaison Officer, who had assisted Ms B with the preparation of the report, was related to the R family.  This was shown not to be true. 

6. Unfortunately, I believe that, in his determination to be successful in the case, Mr S has thrown as much mud at the mother as possible, in the hope that some of it will stick.  In this sense, I believe his evidence has gone beyond what often happens in proceedings of this kind, where parents, in the emotion of the situation, lose their sense of objectivity.

7. Mr S’s major affidavit of evidence was filed only a few days before the trial was scheduled to begin and after the family report had been released to the parties.  It is suspicious that many of the very serious allegations, which the father has of the mother’s conduct, only appear at this stage.  It is also suspicious that the father did not raise these concerns specifically with Ms B.  It is also noteworthy that there is no corroborative evidence for many of the father’s concerns.  In this regard, the person “W” who allegedly caught D sniffing the white mist in May of 2006 has not been called to give evidence in these proceedings.  No explanation has been given as to why he is unavailable. 

8. As a result of all these matters, in general terms, where there is a conflict between the evidence of the father and the mother, I prefer the mother’s evidence.  In these reasons for judgment, findings of fact are made on the balance of probabilities.  In what follows, statements of fact constitute findings of fact.

9. Allegations of sexual and other forms of abuse often cause very serious evidentiary difficulties for the court.  Given the threat such behaviour may pose to the fundamental welfare of the child concerned, such allegations must be taken seriously and accordingly must be investigated.  However such abuse is often alleged to have taken place in private and the child alleged to have been abused may be a poor historian or else very young.  Accordingly, it may be impossible for the court to determine definitively whether such abuse actually took place, particularly in the light of a denial from the alleged abuser and in the absence of corroborating evidence. 

10. The court should also be aware that it is not unknown for parties to deliberately fabricate an allegation in order to gain an advantage in proceedings such as these or for high emotion to lead to a mental distortion of the actual reality of what actually occurred during a particular event involving a child.[8]  Accordingly, the court is required to “give real and substantial consideration to the facts of the case”[9] in order to determine whether there is an unacceptable risk of harm occurring to the child concerned if he or she has some form of interaction with the person alleged to pose a threat to that child.

    [8] See N & S & the Separate Representative (1996) FLC 92-655

    [9]Ibid at page 82,713

11. I found Mr K R to be an honest witness.  In particular, he was frank in his disclosures about his own prior drug use.  In addition, I found his denial of inappropriate interaction with D convincing.  Although obviously partisan to Ms B, I do not think his evidence lacked objectivity.  In particular, his statement that the mother did not denigrate the father, either generally or to D in particular, but was “scared” of him rather than being contemptuous, had the ring of truth to me. 

12. This was also an observation Mrs C R made independently of her son.  Mrs R’ description of Ms B being quiet and softly spoken conformed with my own impression.  When asked if Ms B had been derogatory of Mr S to her, Mrs R said that Ms B did not “rubbish him” but rather had told her how frightened she was of Mr S. 

13. Overall, Mrs R was a very impressive witness, whose integrity was beyond question.  I do not regard her as the interfering or meddlesome busybody Mr S described.  Rather, I accept her evidence that she did not really want to become involved in the matter but was genuinely trying only to help her son and Ms B.  Certainly, it seems clear that she has no particular axe to grind with the S family generally.  I do not think there is any truth in the assertion that she wishes to assume some particular role of importance in caring for D, in order to satisfy some emotional needs of her own.

14. Ms U has been a friend of the father’s for over 20 years.  When they were young adults, they shared a unit together in D.  Ms U’s brother is married to one of Mr S’s cousins.  She is to be regarded as a family friend of Mr S.  However, she lived away from D for many years and only became reacquainted with Mr S at Christmas time of 2005.  Since that time she has often seen Mr S with D. 

15. Ms U was a pleasant and honest witness, who has a very positive view of Mr S’s abilities as a parent.  She has never seen anything of concern in Mr S’s parenting of D.  In her estimation D is:

    “…a very happy and well mannered young child.  He has a lot of friends in his neighbourhood and he is very happy in his father’s care.  They are happy together and I am very confident in D as y D’s father.”[10]

    [10] See Ms Ulrich’s affidavit at paragraph 19

16. Ms U has children of her own, who are older than D.  D apparently often asks to come over and spend time at Ms U’s home.  My impression is that she sees D and Mr S mostly either at her home or her brother’s home, usually in the context of an evening family meal.  Although I do not question Ms U’s integrity, I am concerned that she has perhaps not seen the full range of Mr S’s parenting of D and, to use Ms Terry’s phrase, “she has seen the best side of Mr S”.

17. In her affidavit, Ms U deposes that D has told her that he does not want to live at his mother’s home and said “I don’t want to go.  I’m going to miss Dad a lot”[11]  No evidence has been provided as to the context in which this statement was made.  Accordingly, I approach it with some caution. 

    [11] Ibid at paragraph 17

18. Ms B has been a psychologist for approximately 20 years.  Since 1999 she has been a family consultant at the Family Court in A S.  Prior to that time she was a psychologist in private practice as well as having been employed by Children’s Services.  Her career in psychology has been predominantly concerned with assessing children and their relationships with their parents.  She has prepared at least fifty family reports for this court and the Family Court in the past. 

19. I found Ms B’s report to be considered and insightful.  Her expertise cannot be questioned.  Accordingly, her recommendations in this matter are important ones, which cannot easily be dismissed.  I do not accept that her report is either biased or lacking in objectivity.

20. Ms B acknowledged that she did not “connect well” with Mr S.  I do not think that this lack of rapport was due to any professional omission on Ms B’s part.  It was her assessment that Mr S was defensive in his dealings with her and when questioned about matters which he found difficult to answer became hostile.  This coincided with my own impression of Mr S.  Certainly, I accept Ms B’s evidence that she gave Mr S an opportunity to put any matters which he had concerning D to her. 

1. I now turn to consider some important aspects of the evidence in more detail.

a)          When did the parties separate?

1. In my view, the evidence clearly indicates that the parties finally separated in late 1999.  This final separation coincides with the father’s last hospital admission and the mother’s application for a domestic violence order against him.  It seems inherently unlikely that the parties separated earlier, certainly when D was 6 months old and that he was in the predominant care of his father thereafter.  This does not gel with the father’s frequent hospitalisations between 1997 and 1999 and the gravity of his illness during this period. 

2. However, in his evidence, the father steadfastly refused to concede any of these matters.  I think he is mistaken as to when the parties separated.  From these findings, it seems on balance more likely that the mother was the primary provider of care for D in the first 2 years of his life.  This is a significant matter and perhaps explains why, somewhat to Ms B’s surprise, D has a warm and positive attachment to his mother, notwithstanding the period the two have lived apart. 

b)     The circumstances of D’s move to W A

1. In this context, it is necessary to make some findings about the nature of the parties’ relationship prior to their separation.  These findings have obvious relevance to the nature of their relationship in the period since.  The mother is a shy and unassuming person.  On any view, the father’s hospital record portrays a person, who during the latter stages of the parties’ relationship had a very serious illness, which caused him to behave bizarrely and at times violently.  I accept the mother’s evidence that she was very frightened of the father and remains so.

2. The mother is also a person who does not relish conflict or confrontation.  At times, I suspect this may be interpreted as passivity.  I do not believe that it ever amounted to disinterest in D and his wellbeing.  On the other hand, the father has a forthright and demanding personality.  I think it likely therefore that at times he has been domineering towards the mother.

3. In his affidavit material,[12] the father downplays his mental illness and denies that he was ever violent towards the mother.  To the contrary, he asserts that the mother at times punched him and was abusive.  It is the mother’s position that the father was violent towards her throughout the parties’ relationship.  In cross-examination, the father conceded that he had been violent towards the mother but had not been as violent towards her as she had been towards him.  He acknowledged slapping Ms B and described these interactions between him and the mother as “lover’s tiffs”.

   [12] See father’s affidavit at paragraphs 6-7

4. Overall, I did not find the father’s evidence in regards to the parties’ relationship as particularly convincing.  He could not recall an incident where he burnt the mother’s clothes.  He downplayed his cannabis use at the time, describing the mother as having a more significant problem than him.  When confronted with incidents of his bizarre behaviour, he dismissed them as being manifestations of his unhealthiness at the time.

5. The mother was frank about her difficulties at this time and acknowledged that she did use cannabis frequently, as did the father.  No doubt her behaviour was not always beyond reproach.  However, I regard the parties as having had an abusive relationship with one another, which manifested in a marked power imbalance in the father’s favour.  He dominated the mother.  I accept the mother’s evidence that the father was frequently violent towards her and P.

6. In all these circumstances, the mother’s account of how D came to live in W A appears far more likely than the father’s account and I accept it.  The father was released from the psychiatric unit in November of 1999 and thereafter lived with a relative in B.  On his release, the father asked the mother if he could spend time with D.  The mother was reluctant to agree but consulted with medical staff at the R D H, who assuaged her concerns about the father’s condition and advised it would be helpful for the father’s health to spend some time with D. 

7. Accordingly, with some anxiety, the mother agreed to D spending a month with the father, in an attempt, to use the mother’s words “to help the father get out of it”.  By this, it seems the mother means the father’s mental illness.  I also suspect that it was easier for the mother to agree with the father’s demands rather than oppose them.  Accordingly, the time D was to spend with the father was a defined one and certainly did not include him being taken to W A.  I accept that the father acted unilaterally in this regard. 

8. The father portrays the mother as being essentially disinterested in D’s welfare in the period since he went to W A.  There can be no doubt that the mother chose not to involve herself in the proceedings brought by the father in the Court of Petty Sessions at P.  Again, I do not take this as being symptomatic of the mother’s disinterest in D, rather of her powerlessness. 

9. It also seems that Ms B was not well served by the Legal Aid Services whom she consulted in K at the time.  In addition, I accept that the father was verbally abusive of the mother, whenever the two spoke together on the telephone.  It seems to be the case that he wished to exclude the mother from D’s life and she was unable to either assert herself personally or to find professional people to assist her in this regard.

10. Ms B, who has worked with Indigenous people in A S over the past 5 years was asked about this situation, which ostensibly at least seemed to amount to an abrogation of interest by the mother in D.  Ms B commented that, in her experience, it was not an uncommon phenomenon involving Aboriginal women, who were often slow to become involved in formal legal proceedings, particularly when they had been themselves the victims of some level of violence. 

11. In socio-economic terms, Ms B is one of the more disadvantaged members of Australian society.  I can understand that she would have found it difficult to become involved in legal proceedings, particularly when they were instituted in a court far away from her place of residence and she herself found it difficult to consult a lawyer.

c)     Events since the father and D’s return from W A

1. The father returned from W A with D at either the end of 2002 or the beginning of 2003.  Records are available for D’s attendance at S H Primary School in 2005 and 2006.  For the first semester of 2005, which ended in June of that year, D was found to be absent from school for 35 days.  His report was poor.  It was noted that he often missed school or was late.  It is noted that he needed intense work to develop his literacy and numeracy skills and exposure to “the regular routine of school and strategies to modify his behaviour in the classroom and on the playground.” 

2. D’s report for the first semester ending 2006 is markedly better.  However, his teacher notes that he needs to ensure that he attends school each day so that his level of improvement can continue.  Prior to Ms B’s family report, it seems that he was absent from school for 23 of the 75 available days.  This level of non-attendance has continued in the period since the report. 

3. In my assessment, Mr S was evasive about why D was so irregular in his school attendances.  He largely attributed the non-attendances to D’s propensity to suffer severe nose bleeds.  It was his case that he was concerned about D attending school after suffering such a high level of blood loss.  These concerns are not noted in D’s school records and the father has not presented any medical evidence in support of it.

4. The mother confirmed that D did suffer from nose bleeds, when he came into her care in September of 2005.  It was her evidence that she sought medical attention for D in respect of the nose bleeds and was prescribed some medication for D, which alleviated the condition.  It is the mother’s evidence that she believes that the nose bleeds were attributable to D being tired and not properly nourished.  In any event, it is of note that during the time D was in the mother’s care, he was absent from school on only two occasions.

5. The father was strenuous in his denials that his lifestyle had anything to do with D’s poor attendance at school.  I did not find his denials convincing.  The sole responsibility for ensuring D attended school in these periods resided with Mr S.  In my view, the poor attendance is most likely to be attributable to some systematic failing in Mr S’s parenting of D. 

6. In this regard, the police records contain some indicators that corroborate the fact that there is some level of social dysfunction in Mr S’s life.  Firstly, on 16 June 2004, police were called to what is described as a “domestic disturbance” involving Mr S.  On this occasion, Mr S was detained pursuant to section 128 of the N T Police Administration Act.  This provision authorises police to detain a person when, due to that person’s level of intoxication, he or she is deemed in need of protection. 

7. On his detention, Mr S was apparently aggressive to such a degree that he could not be searched.  When later searched at the police station, he was found to have 7 “deal” bags containing approximately 11 grams of cannabis. 

8. Mr S indicated to the court that he was minding the cannabis for others.  I acknowledge that the amount of cannabis is small and, as such, resulted only in an “on the spot” fine for Mr S.  However, the incident flies in the face of Mr S’s assertion that he does not currently use cannabis or have any significant difficulties with alcohol. 

9. The second incident occurred on 2 February 2006, when police were called by a neighbour to the father’s home because of concerns that D was there alone.  The incident report, which was created as a result of this report, indicates that the police officers concerned spoke with D, who stated that he had not seen his father since going to school in the morning and had no idea where he might be.  He apparently stated that this was not the first time he had been left at home alone overnight.  The officers were concerned that D had no food for dinner.  Accordingly arrangements were made for a neighbour to provide him with a meal.  The police officers concerned returned at 9.00pm and found that Mr S had still not returned. 

10. I appreciate that this may be an isolated incident.  It also may be the result of an overzealous neighbour, who perhaps has some grudge against the father.  There may also be a reasonable explanation for it.  However, if there is such a reasonable explanation, the father failed to provide it.  In the overall scheme of things, it is a matter which causes me concern.

11. The third incident from the police records occurred on 8 May 2006, when the father was again detained by police in protective custody.  Again it seems to be the case that Mr S was intoxicated to such a degree that the police exercised their powers pursuant to section 128 of the Police Administration Act.  Mr S acknowledges that he had been drinking on this occasion but asserts that he had only had one or two cans of beer. 

12. It also his evidence that he was responding to an incident in which someone had thrown a rock at D.  This may be the case but I am concerned that Mr S reacted to this situation in an aggressive manner, after he had been drinking.  It also seems likely that D was present when his father was detained.  In addition, obviously due to the urgency of the situation, the father was not in a position to make any arrangements for D’s care after he had been detained.

13. The cumulative effect of these matters, when combined with D’s ongoing poor school attendance record, is troubling indeed.  Individually, the matters might be dismissed but together, in my view, they cannot be overlooked.  The only person whom the father has called to give evidence on his behalf, as to the nature of the home environment he provides for D, is Ms U.  For reasons already provided, I am somewhat cautious about her evidence and do not believe that she has a high level of insight or understanding of what commonly occurs in the father’s household.

14. Clearly the person best able to provide information about what goes on at home is D himself.  In this regard, I found what he reported to Ms B as being instructive.  In the family report, Ms B as follows:

    “He [D] said that he doesn’t like it and feels sad when his father is fighting and arguing with other people, and when he goes out and leaves him home alone.  D talked about going shopping on pay days and playing with his dog.  He also described watching cartoons in the morning waiting for his father to get up and make his lunch so he can go to school.  When suggested, D was keen to talk with his father about helping him make his lunch the night before and appeared discouraged when his father commented that he didn’t want his son taking a soggy lunch to school.  D was told that his mother was worried about him and how much his father is drinking and he agreed that she should be worried.  He state that his father drinks everyday and this makes him sad (“sometimes big mob, sometimes a little bit”)”[13]

    [13] See family report at paragraph 20

15. The father refuted the factual basis of these matters attributed to D by Ms B.  In particular, he denied that he was ever unable to get up in time to get D to school.  He denied taking D shopping on “pay days” rather than ensuring he attended school.  He denied that he ever was lax in providing supervision for D or that he drank alcohol other than infrequently and on a social basis.  Again, I did not find the father’s denials convincing, particularly in the light of D’s comments to Ms B.

    d)The circumstances surrounding D living with the mother in K in September of 2005

16. It is the father’s position that he has always been very supportive of the mother spending time with D, particularly since he returned from P.  However, he is critical of the mother for failing to abide by agreements to return D to him at the conclusion of such periods.  On the other hand, it is the mother’s position that she has struggled to stay in contact with D.  It is her evidence that she regularly travelled to D so that she could see D and occasionally was allowed to take him to K for school holidays. 

17. It is the mother’s evidence, which I accept, that D greatly enjoyed the holiday periods he spent with the mother as he was able to spend time not only with her but his grandmother, aunties and uncle and particularly his half sibling, P. 

18. Clearly, there was no defined legal structure whereby the mother could spend time with D and it seems things were managed very much on an ad hoc basis in this regard.  In such circumstances, I suspect that there is some truth to both parties’ accounts of how the mother’s contact with D was managed.  No doubt, on occasions, the mother was both reluctant and tardy in returning D to the father and he exercised self-help in this regard.  In addition, I suspect that the father was rigorous in controlling the mother’s contact with D and was reluctant to cede any apparent control of him to the mother.  Undoubtedly, the parties’ relationship with one another was one marked by mutual suspicion and a difficulty in communication. 

19. In all these circumstances, it is not surprising the parties should have diametrical opposed views as to how D came to be in the mother’s care from September of 2005 onwards.  In my view, neither party’s behaviour was beyond reproach in regards to this matter.  However, to a very significant degree, their respective behaviour is reflective of their dysfunctional relationship with one another.

20. It is the mother’s case that, approximately one week before the September school holiday in 2005, she was visiting D and wished to drop in some presents and clothes to D.  When she arrived, she found the father in an extremely intoxicated state, in which he confided to the mother that he was not able to “cope” with caring for D and accordingly wished to place him in his mother’s care. 

21. As has previously been indicated, it is the father’s case that the mother asked him to take D on a brief shopping visit, from which neither she nor D returned.  The mother asserts that the father is not able to remember the conversation the parties had, due to his level of intoxication.  I accept that there was such a conversation.  However, I think that the mother was naïve to believe that the father was likely to permanently go along with this change in D’s living arrangements.  Certainly, it seems to the case that she anticipated that it was likely that the father would renege on this apparent decision. 

22. Both parties are to be criticised for not attempting to approach the issue through the proper legal channels.  I suspect that both are somewhat wary of the legal process.  In this regard, I am satisfied that the father preferred to come down to K to recover D from the mother.  The mother was anxious that this be made as difficult as possible.  I also accept that, during this period, the mother continued to be very frightened of Mr S, not only because of his past behaviour towards her but also because of threats he made on the telephone to her and her family.  In my assessment, there was a proper basis for the domestic violence order the mother sought against the father in the Local Court at K.

23. However, notwithstanding her concerns about the father and his obvious wish that D be returned to his care, the mother did not seek to bring proceedings in an appropriate court in order to attempt to ratify her care of D.  In addition, it took the father several months before he was able to bring his own proceedings in court.  Like the mother before him, he is critical of the legal advice he was initially given.

24. This was the background to the father instituting proceedings in this court in late November of 2005.  During this lengthy period, the father had no face to face interaction with D.  No doubt, the mother believed that if the father did see D, he would be unlikely to return him to her care and she would have increasing difficulties in future of seeing him.  Given my assessment of the father’s temperament, I believe that the mother’s concerns had a strong foundation.  It is in these difficult circumstances that both parties have raised significant welfare concerns about the other’s ability to parent D appropriately.

    e)The various allegations of abuse and neglect

25. Both parties have made very serious allegations against the other which, if true, call into question the appropriateness of that parent to provide care for a child of D’s age.  In the father’s case, he alleges that:

    ·The mother had sex with a strange man, in D’s presence, in exchange for marijuana;

    ·The mother inadequately supervised D, so that he has been exposed to the sniffing of aerosol propellants;

    ·The mother locked D in a room at the C H, whilst she worked;

    ·The mother provides D with accommodation in K, which is inadequate and inappropriate for his needs;

    ·The mother does not provide sufficient food for D because she spends her funds on alcohol and drugs;

    ·The mother regularly denigrates him to D;

    ·Mr R has sexually abused D.

26. For her part, the mother alleges that:

    ·The father has seriously physically assaulted D, on at least two occasions, in a manner which goes beyond acceptable punishment and which is to be regarded as abusive;

    ·The father does not properly supervise D, leaving him to his own devices for long periods of time, particularly when he is drinking;

    ·At times the father does not feed D adequately.

27. Accordingly, the father has made serious allegations that the mother has exposed D to a serious level of sexual abuse, either through her own agency or through that of Mr R.  As such, it is incumbent upon the court to make some sort of assessment of the risk both the mother and Mr R may pose to D and particularly whether that risk is one which it is unacceptable for the court to countenance through the making of a parenting order concerning D in the mother’s favour.[14]

    [14] See M & M (1998) FLC 91-979 at 77,081.

1. In applying this test, I must bear in mind that, at times, allegations of sexual abuse occur where parties are experiencing extreme antipathy for one another and are struggling for advantage in acrimonious litigation.  It is not unknown for such allegations to be made to discredit a party for either tactical reasons or out of malice.  In such circumstances, it is important that the court closely evaluate the evidence available to it to assess whether or not there is such an unacceptable risk. 

2. In W and W [Sexual Abuse allegations: unacceptable risk][15] the Full Court summarised a number of authorities dealing with abuse allegations.  In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative:[16]

   “Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

   In asking whether the facts of the case do establish an unacceptable risk the Court will often by required to ask such questions as: What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence has been provided?  Are there satisfactory explanations for the allegations apart from sexual abuse?  What are the likely future effects on the child?

   This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown.  The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case.  But it is essential that questions like these be asked.”

   [15] W and W [Sexual Abuse allegations: unacceptable risk] [2005] FamCA 892

   [16] See N & S and the Separate Representative (supra) at page 82,713-82,714

3. In my view, the alleged incident between the mother and “B B”, to which D was supposedly exposed by the mother, is bizarre in the extreme.  From the father’s point of view, his only source of information about the incident is D himself.  The mother denies that the incident occurred and the father is unable to corroborate D’s account.

4. It is of note that, although the father does not give a specific date on which this event allegedly took place, it seems to be his position that it was while D was living in K in late 2005.  Again, he does not provide a date on which D allegedly confided the information to him.  Accordingly, it is concerning that the father did not raise the matter in his affidavit of 25 July 2006, or with Ms B.  I believe therefore that there is a strong possibility that the issue has been concocted for tactical reasons in these proceedings.  I find that the allegation is not reasonably based.

5. The issue which follows, given my finding about the reliability of this allegation, is whether it affects the veracity of the other matters raised by the father about the mother, many of which were raised at a late stage in the proceedings and after the father had seen Ms B.  It is Ms B’s evidence, which I accept, that the father raised his concerns about the mother’s drug use in a general sense; stated to her his concerns about the isolation of Ms B and Mr R’ accommodation; the inadequacy of the sleeping arrangements there; and the distance between the residence and the toilet block; but not specific incidents of serious abuse. 

6. Clearly, the father’s assertion that D was not properly fed by his mother and was locked in a room at the C H, are serious matters.  If true, they would indicate that the mother has a very poor attitude towards the responsibilities of being a parent.  The father can hardly be described as well disposed towards the mother.  In all the circumstances, I am concerned that the failure of the father to raise these matters earlier in turn affects the reliability of these allegations.  Again, each of these matters is denied by the mother and there is no independent corroboration of the father’s allegations.

7. The father made his complaint to the Sexual Assault Referral Centre that he believed Mr R had sexually abused D on 7 July 2006.  The N T police investigated the matter over the following days.  Given the gravity of the complaint, it seems extraordinary that the father would make no reference to it in his July affidavit.

8. Ms B was interviewed by police on 12 July 2006 and made a statutory declaration about the incident on 14 August 2006.  She denied the gravity of the matter but indicated that Mr R may have smacked D on his upper leg to discipline him and it was possible that he had accidentally “hit D in the groin”.  This incident, from the mother’s point of view, occurred in December of 2005. 

9. It is the father’s case that, when D returned to his care in January of 2006, he noted D behaving oddly, including putting his feet on his father’s genitals.  The father did not report this concern to Ms B.  It is in fact the father’s position that D made the disclosure to him that Mr R had abused him only in “June/July 2006”.  When this occurred, it is Mr S’s evidence that he telephoned the mother.  The father reports what occurred afterwards as follows:

   “I told y D that I had rang his mother.  He said to me, ‘I don’t want to live with mum and K.’  I asked him why?  He then told me, ‘because K was touching me’.  I was surprised to hear this.  I asked him about this matter extensively.  Y D told me that the Respondent’s partner had touched his genitals at least twice whilst he was in K.  I asked him, ‘did you tell your mother?’ Y D replied, ‘yeah…yeah..’ I asked him again, what did she do about it? Y D replied through his body language I don’t know.”[17]

   [17] See father’s affidavit filed 14 August 2006 at paragraph 48.

10. Again, I am concerned that this apparent notification from D occurred many months after the incident itself was supposed to have occurred.  The father did not raise any of his concerns about D’s unusual behaviour with Ms B.  The notification comes at a late stage in a bitterly contested parenting matter.  It is also coupled with the apparent expression of D’s views about his preferred outcome in the proceedings.

11. The investigating police officers concerned did not believe that the complaint warranted charges being laid or any further action being taken.  D was interviewed and was described by the police as being “very vague and evasive”.  The case report concludes with the comment that when D was interviewed, he was adamant that he did not want to return to K and wished to remain in D.  The father makes much of this comment and the fact that he was not present during D’s interview with the police and these apparent comments of D occurred without prompting. 

12. Given the overall context of this matter; the police finding that the complaint was unsubstantiated; the mother and Mr R’ denial of any untoward behaviour; and the lack of precision in the father’s allegation; I am satisfied that the prospect of either D living with the mother or spending substantial periods of time with her, is not likely to constitute an unacceptable threat or risk to D’s welfare.

13. I have already commented on the father’s allegation that D has been exposed to aerosol sniffing in K and repeated this behaviour after he had been returned to the father’s care.  The incident was not raised with Ms B nor in his affidavit of July.  No explanation was given as to why the person “W” did not give evidence of what he had allegedly seen.  I do not believe the incident took place.

14. The mother too, raises very serious concerns about D’s welfare, when he is in his father’s care.[18]  Firstly, she alleges that D disclosed to her that he had been “belted” by his father with the cord of a mobile phone charger too such an extent that his skin had been broken and he had been bruised.  It is the mother’s case that D disclosed that his father had been drunk when this occurred.

    [18] See mother’s affidavit of evidence at paragraph 47

15. Secondly, on 25 March 2006, the mother alleges that she received a phone call from her brother J, who told her that on the previous day D and his father had arrived at his home.  Mr S appeared to have been drinking and D was hungry.  Later there was an altercation between Mr S and J regarding whether D should stay the night there.  In this context, the mother alleged that the father hit D around the head with a plastic bag which had some items in it.

16. Finally, on the day the parties attended for the family report assessment, the mother alleges that D looked tired, dirty and unkempt and reported to her that his father had been in the “lock up” on the previous day and, as a result, D had been left in the care of a man he did not know, who did not feed him.  This latter aspect of the mother’s concerns is corroborated to a significant degree by the police records. 

17. The father denies that he has ever beaten D with a mobile phone cord.  D himself did not make any disclosure to Ms B that his father had assaulted him in this way.  The mother tendered a photograph of an injury, which she had noted on 11 February 2006.  No specific medical records were provided in respect of the injury. 

18. The matters of which the mother complains were the subject of a child abuse notification filed in the court on 4 May 2006.  I have not been provided with any specific documents in respect of this notification.  The person “J” to whom the mother refers in her affidavit did not himself provide an affidavit in these proceedings and did not give evidence in them.

19. Mrs R corroborates the mother’s account of D disclosing to her the incident involving the mobile phone cord and deposes she was present when D told his mother about the incident.  It is the father’s position that D could have easily sustained such injuries whilst playing or that one of his school mates had inflicted the photographed mark by placing a heated cigarette lighter on D’s leg.  This is apparently a common practice, which is referred to as “giving a smiley”.

20. Mrs R’ evidence is also relevant to another incident of alleged abuse, which is of concern to the mother.  This incident occurred at a handover of D at the father’s home on 19 April 2006, at which Mrs R was present.  On both Mrs R’ and the father’s account, it was a most unpleasant matter with both parties blaming the other for provoking the altercation which occurred. 

21. In his affidavit material, the father is mistaken about the date on which the incident occurred and includes a person in it, who was not there.  It is Mrs R’ position that the father was drunk during the altercation.  The father concedes that he had been drinking but denies that he was drunk.  Given these matters and my previous assessments of the witnesses concerned, I prefer Mrs R’ account of the incident to the father.

22. The genesis of the altercation between the parties seems to have been a miscommunication about the specific time D was to be returned.  It was around Easter time and there was also flooding across the T E, which added to the difficulties.  I am satisfied that the father over-reacted to the situation and was abusive and threatening to Mr and Mrs R S.  I accept that D was frightened by his father’s behaviour, which included pulling D from the R’ car and dragging him by the hair.  I accept that Mr S was significantly affected by alcohol at the time.

23. I am not able to resolve definitively how D came to have the marks on his legs which the mother and Mrs R observed in February of 2006.  In the absence of evidence from J, I have discounted the alleged incident of March 2006.  However the incidents of 19 April and 8 May 2006, clearly establish unacceptable behaviour on the father’s part, which behaviour involved both D and the excessive consumption of alcohol by the father. 

24. Accordingly, I accept that there is a proper factual basis for Ms B’s opinion that if D continues to live with his father:

    “It is likely that D will continue to be exposed to arguments and violence between his father and other people; it is likely that he will continue to be left unattended and it is likely that he will also be exposed to his father’s intoxication.  It is also most likely that he will continue to miss substantial amounts of school.  All of this is detrimental to D’s wellbeing and developing sense of self.  Although D did not disclose that his father was physically abusive to him it is my opinion that it is possible that he has suffered or has been threatened physical punishment by his father.”[19]

    [19] See family report at paragraph 26

f)       The mother’s current circumstances and proposals

1. The mother and Mr R have been involved with one another for over 6 years.  I accept that their’s is a committed and stable relationship.  Both were candid about their past drug use.  The mother began smoking marijuana when she was aged 18 and smoked consistently until about 10 months ago.  Mr R stopped smoking at the same time.  Ms B stated that she stopped using marijuana both for these court proceedings and for D’s sake.  I accept this is so.  I also accept that neither Mr R nor the mother have any alcohol consumption difficulties. 

2. Mr R is employed as a housing officer at the K Community near K.  He has held that position since 1998 and is likely to continue in it for the foreseeable future.  He earns an income of approximately $38,000.00 per annum.  The mother has been a cleaner at the C H in K for the past two and a half years.  She earns a salary of approximately $25,000.00 per annum.  Mr R and the mother work similar hours on a Monday to Friday basis.  If D comes to live with the mother, he would attend a homework centre in K on two afternoons a week but otherwise would be collected by Mr R after school and would spend a short period at Mr R’ work before being taken home. 

3. Mr R and his family identify strongly as members of the N T Indigenous community.  Mr R was born in D but his parents are both from C.  Mrs R is the co-ordinator of the N T Aboriginal Interpreter Service. 

4. The mother and Mr R purchased the block of land on which they live in June of 2004.  It is a 15 acre rural block.  At the present time, there is a shed, caravan and ablution block on the land.  In future the mother and Mr R wish to construct a house on the land and are currently saving to this end.  Mr and Mrs R S have an interest in the land and wish to retire to it and build their own accommodation there.  In the future, it is anticipated that the block will be stocked with a few horses and cattle. 

5. The father is critical of the standard of accommodation the mother can provide for D.  I accept the mother’s assurance that the accommodation is suitable for D and he himself has raised no complaints about it with the mother.  In this regard, it is interesting to note that D described himself to Ms B as a “town and bush boy”.[20]  I accept that the mother’s home does not provide some of the comforts of a suburban location but it also has the advantages of space and freedom, which are likely to be appealing to a child of D’s age and background.

   [20] See family report at paragraph 22

6. I accept that the mother and Mr R are well settled in their life in K and have no plans to change it.  The mother and so D himself have a number of relatives who live in K.  These include D’s maternal grandmother, three aunts and three uncles and especially P.  The mother believes that D will fit easily back into the K S Primary School, if there is a change in his living arrangements at this stage.

g)     The father’s current circumstances and proposals

1. The father and D have been living in their home in G for the past 2 years.  I accept that it provides comfortable and appropriate accommodation for D.  Due to his responsibilities to parent D, Mr S has been in receipt of a parenting benefit for the last few years.  In his case, the father places great emphasis on the continuity of care he can provide D in future.  He is concerned at D being removed from the friends he has made in the P area and the school environment with which he is familiar, at this stage of his development.

2. However, the father also raised the prospect of seeking work for himself in J at the mine there.  If this occurred, D would move with him to J.  This proposal is not mentioned in the father’s affidavit.  Accordingly, I do not think that it is a particularly well developed one at present. 

h)     The family report and Ms B’s evidence

1. As has been previously indicated, it is Ms B’s view that it is likely to be in D’s best interests if he lives mainly with his mother in future.  Ms B acknowledged that, given the strength of the relationship with his father and the lengthy period during which D had lived with him, this was likely to be a very significant change for D, which would have to be carefully managed.  However, overall, Ms B believed that the positive aspects of the change outweighed the potential pitfalls.  The chief benefits being that D was likely to be in a “safer and more reliable environment” in K and would be less likely to miss substantial amounts of school there. 

2. I accept Ms B’s assessment that D has a close and significant relationship with his father.  To Ms B, D described his father as “good” and “the boss of me”.  The father places considerable emphasis on these expressions of trust and approbation from D for him.  However, these views expressed to Ms B were also hedged with qualifications in the sense that D indicated that he did not like his father fighting or leaving him alone at home.  As has previously been indicated, D confirmed his mother’s concerns about the father’s level of drinking and indicated that it was right that she should be worried about him.  I view these matters as significant. 

3. Whilst acknowledging the difficulty of D accommodating a change of home at this stage, Ms B noted that D had a “surprisingly” strong relationship with his mother and it seemed that he had found living in K, in the latter part of 2005, to be a positive experience.  Ms B took heart from that and believed that it reduced the experimental aspects of the change. 

4. To Ms B, D was scrupulously careful not to express a preference as to whom of his parents he would prefer to live with in future.  Given the high level of conflict between the parties, this did not unduly surprise Ms B.  In this context, she urged the court to be cautious about any evidence subsequent to hers, in which D apparently expressed a strong wish to live with one or other of his parents.  In such circumstances, it was Ms B’s view that there was likely to be a high probability that D was being influenced by some external source.

5. Ms B indicated that, in her view, D’s relationship with Mr R was somewhat ambivalent.  D did not identify him as part of his family and described him as being “a little bit good”.  Clearly, it is only recently that D has spent any significant periods of time with Mr R.  It was also Ms B’s opinion that D was aware that the father had an extremely negative view of Mr R and this was another factor at play. 

6. In future, Ms B regarded it as being essential to D’s wellbeing that he be able to maintain a strong sense of connection with both his parents.  Clearly there are significant difficulties in achieving this optimal outcome, not the least of which is the conflictual relationship between the parties and the distance between their respective homes.  Ms B was asked to make an assessment as to whom of the parties she believed was more likely to be supportive of D maintaining his relationship with the other parent concerned. 

1. Although D did not express a concluded “wish” about where he wanted to live, it is my perception from analysing Ms B’s evidence, that D has some perceptions or views about the issue.  These include saying to Ms B that he feels “sad when his father is fighting and arguing with other people, and when he goes out and leaves him home alone.”  It also should be noted that Ms B remarked on D’s animation when relaying stories about what he did at his mother’s home from time to time, although he did complain that the toilet was too far from the house. 

2. Overall, it seems clear to me, that D has expressed a level of discomfort about his current living arrangements and how his father takes care of him.  In her report Ms B wrote: “It is my impression that he [D] is worried about himself and does not feel safe, especially when his father is drinking.”[27]In my view, it is incumbent upon the court to give some weight to these matters and the implied view of D. 

b)     The nature of the relationship between D and each of his parents and other significant persons

[27] See family report at paragraph 26.

1. D clearly has a very significant relationship with his father, which will be substantially changed if D goes to live with the mother at this stage.  Undoubtedly, Mr S has been the principle source of both physical and emotional succour for D since early 2000.  Given D’s age now, a significant period of time.  I accept that this is most likely what D was referring to when he described his father as “the boss of me”.

2. Undoubtedly, D’s relationship with his mother was severely compromised from early 2000 onwards.  I accept that prior to that time, the two had a close relationship and Ms B was D’s primary carer.  In spite of the obvious difficulties in the relationship between the two in the period since, I accept that D’s experience of living with his mother in the latter part of 2005 was a positive one.  In this sense, I accept Ms B’s opinion that D “has developed some sense of security with his mother despite the limited amount of contact he has had with her from an early age.”[28]

   [28] See family report at paragraph 22.

3. Apart from Ms U’s evidence and the references she makes to Mr S’s cousin, the father does not give extensive evidence about other members of his family with whom D interacts regularly in D.  On the other hand, Ms B gives evidence of the extent of her family in K.  I accept that these maternal relatives are likely to become more important for D as he grows older.  In addition, it seems clear that D has a significant relationship with his older half sibling, P.

4. D’s relationship with Mr R appears to be more problematic.  It does not seem that D currently regards Mr R as being part of his family and somewhat dismissively refers to him as “ok”.  It seems in part at least that D’s attitude towards Mr R is influenced by his father’s view of him and D’s wish to be loyal to his father. 

5. The relationship between step-children and step-parents is one that if often fraught with difficulty, particularly as children move into adolescence.  It is not unknown for step-children to be highly resentful of what they perceive as being the intrusive role of a step-parent in their lives, particularly so far as disciplinary issues are concerned.  These difficulties can be intensified if the child concerned has a very close relationship with the parent he or she does not live with and that parent is openly dismissive of the step-parent, who, on the other hand, is a part of the child’s residential circumstances and so must play a quasi parental role..

6. In such circumstances, the role of a step-parent can be a difficult one indeed.  I was impressed with Mr R’ understanding of the likely difficulties in the case.  In his evidence, he repeatedly indicated his understanding that he would “never be D’s father” but rather wished to be “a good role model for him”.  Mr R acknowledged the closeness of the relationship between D and his father.  Accordingly, I believe that the possibility for future difficulties to arise between D and Mr R is somewhat diminished, although it cannot be dismissed.

c)     The willingness and ability of each of D’s parents to facilitate and encourage a close and continuing relationship with the other parent

1. This sub-section is a new one and must be read in conjunction with section 60CC(4), which requires the court to consider how each of a child’s parents has in the past fulfilled or failed to fulfil his or her parental responsibilities towards the child concerned. The type of matters which it is envisaged the sub-section will encompass include the payment of child support and adherence and reliability in respect of past contact arrangements. It is a significant sub-section, which emphasises the responsibilities of parenthood and the obligation of parents to meet those responsibilities.

2. I think both parties are open to significant criticism in respect of the matters for consideration under this criterion.  It is obviously the case that the parties do not have a cooperative parenting relationship and each, at times, has attempted to seal D away from the influence of the other parent.  D had only minimal action with his mother when he was living in P.  I think this was more a result of disempowerment and an inability to utilise the legal system rather than disinterest on her part in D. 

3. I accept the mother’s evidence that, since D has returned to live in the N T, she has struggled to maintain her relationship with him.  Whatever were the circumstances of D coming into the mother’s care in September of 2005, I consider it to be the case that she realised that it was likely that this would precipitate some form of action on the father’s part.  I also consider that she must have known that the father would, at the very least, want to spend some time with D.  Unfortunately, it seems to be the case that, during this period, the mother was not willing to consider any options in this regard, thus deepening the hostility between the parties.

4. Neither party has been in a strong financial position in the period since they separated.  The father has largely been in receipt of social security.  The mother has been in a similar position, other than when she has been employed in lowly paid positions.  As a result, it seems to be the case that when D has been with one or other of his parents, that parent has assumed primary financial responsibility for D’s care.  Child support has not been routinely collected.  The father is highly critical of the mother for failing to provide D with any financial support, particularly pocket money, during the years he was living in P.  More recently, it seems to be the mother’s position that she has frequently provided clothes and presents for D.

5. Given both parties’ straightened financial circumstances and their dysfunctional parenting relationship, particularly in terms of communication, I do not think that either the mother or the father can be accused of a deliberate and systematic attempt to evade child support responsibilities for D.  Rather, the difficulties in their relationship and perhaps failure in the system itself has made the collection of child support difficult. 

d)     The likely effect of any change in D’s circumstances, including the likely effect of being separated from one of his parents

1. The matters for consideration under this sub-section are highly relevant in this case.  The father places great emphasis on the continuity of care he has provided for D since 2000.  In addition, he points to the fact that D is well settled in G, where he has made many friends.  On the other hand, he asserts that D is essentially unused to living in K and his relationship with Mr R is untested and largely unformed.  As a result, he argues that it is likely to be highly unsettling for D to have a change of living arrangements at this stage.

2. Ms B considered the level of difficulty likely to confront D if there was a change of his living arrangements at this stage.  Notwithstanding these difficulties, she continued to consider that such a change was appropriate for D.  In her view, the need for D to live in a “safer and more reliable environment” were more important than any short term dislocation D may experience on moving.  In addition, Ms B’s concerns were considerably reduced by her view that D had made a successful transition to his mother’s home during the latter part of 2005.  As such, Ms B’s home was not a total unknown to D.  I share Ms B’s views in this regard.

e)     The practical difficult and expense of D spending time and communicating with his parents

1. The distance between D and K is a considerable one.  Regardless of where D lives in future, there will be logistical difficulties in how he is to spend time with the other of his parents.  Mr S does not have a motor vehicle.  In the past he has relied on friends to drive him to K.  Mr R does have a motor vehicle but in the past it has been plagued with mechanical difficulties.  Travel by bus is likely to be onerous for a child of D’s age.

2. However, the greater impediment to there being fluid arrangements in respect of what can conveniently described as “contact” is the mistrustful relationship between the parties and their inability to communicate directly with one another.  These difficulties and the practical difficulties referred to above will remain whatever is the outcome of this case.

3. In addition to her principle recommendations in this matter, Ms B recommends that D continue to spend “significant time with his father on at least alternate weekends and half school holidays.”  She also recommends that D be exchanged between the parties in a secure or supervised location.  At the present time, there is no Commonwealth funded contact centre in K.  There is such a centre in D but it is not particularly convenient to Mr S’s home.  In those circumstances, the parties have each proposed that the P and K Police Stations be used as the handover point for the indefinite future.

f)      The capacity of the parties to provide for D’s emotional and intellectual needs

1. Considerations of D’s intellectual needs have loomed large in this case.  I am satisfied that D has not been attending school as regularly as his needs dictate, whilst he has been living with his father.  I accept that he is likely to be more regular in his attendance at school, if he lives with the mother in K.  For the reasons already provided, I consider that D’s ability to access educational resources as fully as possible is a matter which is central to D’s overall wellbeing, particularly in the long term. 

2. In addition, it is a major thread of the mother’s case that, at certain times, the father’s behaviour poses a threat to D’s emotional wellbeing.  In particular, she asserts that when Mr S has been drinking, he has a propensity to become argumentative.  In this regard, the most significant aspect of the evidence is from D himself.  According to Ms B, D reported that he “doesn’t like it and feels sad when his father is fighting and arguing with other people.” 

3. In my view, there is significant corroboration of D’s concerns in the police records involving Mr S, which have been tendered before the court.  Accordingly, in my assessment, the mother is better placed to provide for D’s intellectual and emotional needs at the present time.  It also seems to me to be likely that she is better placed than Mr S to foster a positive relationship between D and his father than Mr S is in regards to D’s relationship with his mother.

g)     The maturity, sex, lifestyle and background of the child concerned

1. I do not think that the matters which fall for consideration under this sub-heading are generally relevant in this case. 

h)     Aboriginality

1. Both the father and the mother identify as Aboriginal people, although the father’s background includes Papua New Guinean and Torres Strait Islander aspects.  Both now and in the future, whatever is the outcome of this case, D will identify himself and be in turn identified as an Indigenous or Aboriginal child.  Neither party placed particular emphasis on matters for consideration under this criterion in either of their respective cases.  Ms B dealt with the issue in her report as follows:

   “As neither parent raised issues about D being involved in any traditional activities or ceremonies it appears that it is the relationships with extended family that is the essential way for D to understand and be connected to his culture.  Both parents reported to having strong relationships with their own family and even continue associations with the other parent’s family.  Although Ms B expressed some concern about Mr S’s lack of contact with his own family it seems likely that both parents will maintain some connections and D will grow up knowing his family and heritage.”[29]

   [29] See family report at paragraph 33

2. I accept Ms B’s evidence in this regard.  Regardless of whom of his parents D lives with in future, he will have a sense that he is an Aboriginal child. 

i)      The attitude that each party has demonstrated to the responsibilities of being a parent

1. Necessarily there is some overlap with the matters which fall for consideration under this sub-heading with matters that have been discussed under preceding sub-headings.  It is clear to me that both parents dearly love D and want the best for him in future.  As such, they are committed parents.  Regrettably, over many years, the mother played little, if any, role as a parent in D’s life.  I am satisfied that this largely came about as a result of the father’s unilateral decision to relocate D to P.  In taking this action, he did not closely consider how D would maintain a relationship with his mother.  In my view, a commitment to maintaining a child’s relationship with both is or her parents is a significant component of responsible parenting.

2. Other essential aspects of parenting include ensuring a child attends school regularly; is properly supervised and fed; and kept safe from harm.  It is the mother’s case that D came into her care in September of 2005 because the father was failing in these areas of parenting.  It is her position that she was worried about D and her worries have continued in the period since D returned to his father’s care from January of 2006 onwards.

3. Although D himself is accepting of some of his father’s parenting practices, somewhat presciently, D told Ms B that the mother was right to be worried about him.  At the end of the day, I accept that D knows that there is something lacking in his father’s parenting of him at times. 

j)      Family violence

1. The definition of “family violence” has been changed by the amending legislation.  Pursuant to the provisions of section 4 of the Act it is defined as:

   “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”

   Thus this definition now includes an objective level.  Fear or apprehension of violence must be reasonable.

2. I am satisfied that the father behaved violently towards Mrs R and her husband on the occasion of the handover of D on 19 April 2006.  I accept that D was frightened by this behaviour.  According to the definition provided by section 4(1AB)(h) I am satisfied that Mr and Mrs R are to be considered family members for D.  Accordingly, I accept that the father exposed D to family violence on this particular occasion.

3. I also accept that Mr S was violent towards the mother during their relationship.  I accept that this relationship ended many years ago.  However, since that time, the father has on occasions been verbally abusive towards the mother during telephone conversations between the two.  I accept that the mother continues to be frightened of Mr S to this time.  Indeed, as I have already noted, I regard it as being of note that both Mrs R and K R remarked that Ms B does not speak disparagingly of the father to them, rather she speaks of her apprehension of him to them.

4. The impression I have formed of the father is one of a person who has a volatile personality, particularly when he has been drinking.  It seems clear that D has been exposed to his father having violent altercations with others in the past.  This has led him to be taken into police custody.  Such considerations are matters which favour a change of D’s living arrangements.  I do not believe that D would be exposed to such violence in his mother’s household.

5. Violence or derogatory behaviour does not have to be directed specifically at the child concerned to constitute an evil for that child.  Such behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict by recourse to violence in future.  Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents.  In this regard, a parent who uses violence against another person as a means of resolving a dispute or is derogatory of another person, especially the other of a child’s parents, cannot be regarded as a suitable role model for children.[30]

   [30] See JG & BG (1994) 18 FamLR 255 at 261

k)     Any family violence orders

1. In the past, in the aftermath of the parties’ separation, the mother obtained a number of domestic violence orders against the father in the Local Court at K.  It is the father’s position that she obtained these orders to impede his relationship with D and also so she could pursue her relationship with Mr R.  I do not consider that there is any factual basis to either of these assertions.  I accept that the mother was frightened of the father, particularly as a result of his serious illness, which resulted in him being detained by police at times.  In addition, it flies in the face of the father’s assertions, that the mother was willing to allow him to spend time with D shortly after his release from the psychiatric ward in D in November 1998. 

2. More recently, in October of 2005, the mother has once again successfully obtained a domestic violence order against the father.  This order does not seem to have been opposed by the father.  Again, he categorises the mother’s application for the order as a cynical device designed to prevent him having access to D.  I think there is some validity to the father’s criticisms of the mother, whom as I have previously noted, was well aware that the father wished to see D.  The mother was anxious to avoid this if possible. 

3. However, as I have already noted I accept that the mother is fearful of Mr S.  In my estimation, she has reason to be fearful and, given her experience of Mr S in the past, her fears are objectively based and cannot be regarded as either fanciful or far fetched.

l)      Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.

1. Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.

2. It is the central plank of the mother’s case, which I have accepted, that the father is currently not able to provide arrangements of sufficient stability to adequately safeguard D’s interests.  Accordingly, it seems likely that if there is a maintenance of the status quo and the mother continues to hold concerns about the father’s care of D, she will institute further proceedings in future.  Accordingly, it seems to me that the mother’s proposal is the one least likely to lead to the institution of further proceedings in future. 

Conclusions

1. In determining what is the appropriate result in this case, the emphasis is on achieving the outcome which is most likely to serve D’s best interests.  Since the reconfiguration of the Family Law Act 1975, brought about by the Shared Parental Responsibility Amendments, the focus of the court’s attention has been concentrated on two primary considerations in order to achieve such a goal – firstly, ensuring the children involved in the proceedings are protected from harm through any orders the court makes and secondly, ensuring that children have a “meaningful” relationship with both their parents.

2. Which of these considerations has paramountcy over the other and how those considerations interrelate with the additional considerations provided by section 60CC(3) must depend on the individual circumstances of each particular case.

3. In this case, I am satisfied that the more important consideration is the means by which D is to be protected from harm, within the ambit provided by section 60CC(2). Pursuant to the section, harm includes abuse, neglect and family violence. In this particular case, there is evidence to indicate that the father’s care of D has not adequately protected D from a variety of harm and neglect. This has included D not attending school properly and at other times not being properly supervised and fed. It has also included exposure to family violence. I regard these matters as serious and they must dictate a change in D’s living arrangements at this stage.

4. The most eloquent evidence that D has been exposed to harm is his own expression that his mother has reason to be concerned about his father’s care of him.  If D does remain in his father’s care, I am concerned that his full potential to develop from a child into an adult, particularly his intellectual and emotional potential, may not reach its full extent.  This is likely to have very serious long term implications for D’s wellbeing. 

5. These matters outweigh other of the additional considerations, particularly the possible implications for D of a change of care and living arrangements at this stage.  In any event, given D’s significant relationship with his mother and the positive experience he has had of living in K during the latter part of last year, I am satisfied that he can overcome these short term difficulties.  I am also satisfied that it is essentially D’s view that his own safety and security will be better served if he lives with his mother in future.

6. I am well aware that it is a most significant step to change D’s living arrangements after so many years.  D is nearly 9 years of age.  On any view, in spite of the difficulties which have prevailed in the past, D’s relationship with his father is a very close and loving one. 

7. Practical considerations and the findings I have made about abuse render it impossible for D to spend either equal time or substantial and significant time with his father on the change of his living arrangements.  It is a considerable distance between K and D.  The relationship between the parties is a poor one.  Necessarily, D will be confined to spending time with his father in school holidays and on weekends.  Notwithstanding these matters, I am satisfied that D will be able to maintain a meaningful relationship with his father in future. 

8. Although the possibility of D spending equal or substantial time with both is parents, which follow from the presumption created by section 61DA, is not applicable in this case, it is appropriate that the parties have equal shared parental responsibility for D. Pursuant to the provisions of section 65DAC, the effect of the order for equal shared parental responsibility is that the parties are required to make joint decisions about major long term issues to do with D. Such long term issues include matters to do with D’s education (both current and future); his religious and cultural upbringing; his health; and any changes in his living arrangements which may make it significantly more difficult for D to be able to spend time with one or other of his parents.

9. Pursuant to the provisions of section 65DAE the parties do not have to consult about issues that are not major long term ones and in order to avoid confusion, I will make an order that each party shall individually have sole responsibility for making decisions concerning aspects of D’s care, welfare and development, which arise on a day to day basis, when D is in the care of each of them.

10. Up to this stage, arrangements for D to be exchanged between the parties have been problematic and fraught with difficulties.  Unfortunately, this is likely to remain the case for the foreseeable future.  In the absence of a government funded contact handover service, it seems that the parties must continue to use a police station as the venue for the exchange of D between them.  Clearly, the police station is not the happiest environment for a child of D’s age to interact with his parents but I am satisfied that, because of the high level of tension between the parties, it is the most appropriate one for handover to occur.

11. Up until this stage, the mother and Mr R have been doing the vast majority of the travelling involved in D spending time with them.  It is the mother’s position that, in future, the parties should share the cost of the travelling involved.  At the present time, Mr S does not have access to a motor vehicle.  It seems unclear whether he will obtain a vehicle in the future.  On the other hand, the mother and Mr R have recently purchased a new and reliable car.  In these circumstances, I have come to the conclusion that they should continue to drive D to and from the handover location, which will continue to be the P Police Station.

12. There is no dispute between the parties that D should spend equal periods of the school holidays with each of his parents.  Orders will be made dividing the time D spends with his parents in school holidays.  For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and forty-five (245) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:  C W

Date:  31 August 2006