Seales and Pacillo

FAMILY COURT OF AUSTRALIA

SEALES & PACILLO

[2010] FamCA 759

FAMILY LAW – CHILDREN – sole parental responsibility – family violence – allegations of child abuse and child sexual abuse

Family Law Act 1975 (Cth) ss 60, 61DA

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
M and M (1988) FLC 91-979

APPLICANT:

Ms Seales

RESPONDENT:

Mr Pacillo

INDEPENDENT CHILDREN’S LAWYER:

Dignan & Hanrahan

FILE NUMBER:

PAC

4189

2008

DATE DELIVERED:	31 August 2010
(Amended 1 September 2010)

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

10-12 May 2010; 3 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr D Maddox
SOLICITOR FOR THE APPLICANT:	John Spence & Associates
RESPONDENT IN PERSON:	Mr Pacillo
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr G Gersbach
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Dignan & Hanrahan

Orders

That all existing parenting orders in relation to the child L born … June 1999 (“the child”) are discharged.
That the mother have sole parental responsibility for the child AND that the parties shall note the obligations created by this Order and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the child live with the mother.
That on or before 14 September 2010 the independent children’s lawyer (“the ICL”) provide written information to the parties of two or more alternative anger management programs conducted by a registered psychologist or qualified social worker or counsellor in the Sydney metropolitan area which the father may attend at his expense.
That the father enrol and satisfactorily complete one of the anger management programs referred to in Order 4 as soon as possible.
That upon the father complying with Order 5 herein he shall obtain and furnish to the mother and the ICL a certificate from the person who conducted the anger management program referred to in Order 5 certifying that the father has satisfactorily completed that program.
That the father may spend time with the child as follows:
Until the father complies with Order 6
(a)On alternate weekends during school terms and school holidays from 10.00am until 6.00pm on alternate Sundays commencing on Sunday, 5 September 2010.
(b)From 10.00am until 6.00pm on Father’s Day.
(c)From 10.00am until 6.00pm on Christmas Day in each even numbered year and from 10.00am until 6.00pm on Boxing Day in each odd numbered year.
(d)Such alternative or other period or periods that the parties may agree upon from time to time.
Upon the father having complied with Order 6
(e)On alternate weekends during school terms from 10.00am Saturday (or the conclusion of the child’s organised sporting activities if at a later time) to 6.00pm Sunday (or the conclusion of the child’s organised sporting activities if at a later time) commencing no earlier than seven (7) days after the father has complied with Order 6.
(f)For up to six (6) weeks during school holidays in each year PROVIDED THAT the father notifies the mother in writing at least one (1) month in advance of the weeks that he wishes to spend time with the child and that he will not be working in each of any such week AND PROVIDED THAT such time does not exceed two (2) weeks in any one block.
(g)That in the event of the father failing to give the mother written notice in accordance with Order 7(f) the mother shall give the father no less than 14 days written notice of the week or weeks during school holidays that he may spend with the child in such period or periods PROVIDED THAT he has given written notice to the mother within a further seven (7) days of his willingness to do so and that he will not be working during that period or periods.
(h)From 10.00am until 6.00pm on Father’s Day.
(i)From 4.00pm Christmas Eve to 4.00pm Christmas Day in each even numbered year and from 4.00pm Christmas Day to 4.00pm Boxing Day in each odd numbered year.
(j)Such alternative or other period or periods that the parties may agree upon from time to time.
That the mother may engage the child in all reasonable sport and extra-curricular activities regardless of venue and whether or not such sport or activities occur during a weekend when the child is due to spend time with the father and the mother shall keep the father informed in that regard as soon as possible.
That for the purpose of Order 8 the mother shall ensure that the child is accompanied by her or another responsible adult for the commencement of such sport or extra-curricular activity and arrange for the child to be collected at the conclusion thereof PROVIDED THAT in the event of such sport or extra-curricular activity taking place at a time which coincides with the time that the father is due to have the child in his care then he shall ensure that he personally:
(a)takes the child to such sport or extra-curricular activity if the commencement time is during the period in which the child is in his care; or
(b)collects the child at the conclusion of such sport or extra-curricular activity should the finishing time coincide with the commencement of the time that the child is due to spend in his care in accordance with these Orders unless otherwise agreed between the parties.
That the change-over of care of the child from one party to the other in accordance with these Orders shall take place as follows:
(a)At the conclusion of the child’s relevant sporting or extra-curricular activities at the venue unless otherwise agreed between the parties which shall have priority over the time of change-over of care of the child between the parties referred to Order 7.
(b)Otherwise at D Railway Station unless otherwise agreed between the parties.
That Orders 7(a) to 7(i) and 9 are suspended on Mother’s Day and the child shall be in the care of the mother from 10.00am that day until the commencement of the next period that the child is due to be in the care of the father.
That each party ensure that the other has his or her current mobile telephone number and/or landline telephone number as well as email address.
That the father may have telephone communication with the child between 7.30pm and 8.30pm unless otherwise agreed on days to be agreed between the parties and in the absence of agreement on Tuesdays and Thursdays PROVIDED THAT should the child be unavailable to receive the father’s telephone call then upon him leaving a message for the child the mother shall ensure that the child returns the father’s call as soon as possible.
That in the event of the child suffering a serious illness or injury whilst in the care of one of the parties then that party shall immediately inform the other party of the detail of such injury or illness and the name address and telephone number of such medical practitioner or hospital at which the child receives or may receive treatment.
That the mother shall authorise the Principal of all schools attended by the child to furnish the father at his request and expense copies of the child’s school reports, photographs, correspondence and notices that provide details of school functions, parent/teacher interviews, sport and extra curricular activities.
That each party is permitted to attend any of the child’s school sport or extra curricular activities where parents are permitted to attend.
That each party is restrained from denigrating or making any critical remarks about the other or referring to any aspect of the evidence in these proceedings in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that fashion.

Procedural orders

That all documents produced on subpoena may be returned to the person who produced same.
That all outstanding applications are dismissed subject to the Orders made this day.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC4189 of 2008

MS SEALES

Applicant

And

MR PACILLO

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings each of the parties seeks parenting orders in relation to their son L who is 11 years of age having been born in June 1999 (“the child”).
The applicant (who for convenience I shall refer to as “the mother”) had sought one order only in her Initiating Application filed 17 October 2008 namely “that the orders made on 10 September 2003 be discharged” (“the 2003 orders”).
The 2003 orders were final parenting orders made on 5 November 2003 following a lengthy hearing before Stevenson J.
It is agreed that the 2003 orders were made on the date to which I have referred, notwithstanding a reference to “10 September 2003” on the front sheet of the sealed copy of the orders being annexure “A” to the Affidavit of the mother sworn 7 October 2008.
The mother’s application was amended in the document entitled “Short minutes of orders proposed by the mother” marked Exhibit 8. The mother seeks orders, which in substance, provide for her having sole parental responsibility; that the child live with her; and the father may spend time with the child depending upon the findings which may be made in relation to alleged child abuse of the child by the father and/or his child of a former relationship “S” now aged 16 years having been born in December 1993 (“S”).
The respondent (who for convenience I shall refer to as “the father”) had sought parenting orders in accordance with his Response filed 22 October 2008.
With regard to the orders sought by the father, the father’s response was amended as set out in the section “different orders” contained in the document entitled “Outline of case document of father” being Exhibit 16.
The substance of the orders sought by the father is that he have the sole parental responsibility for the child; that the child live with him; the mother have fortnightly periods of time with the child from Friday afternoon 5.00pm until Sunday afternoon 4.00pm with school holiday periods to be shared (precise particulars not given); and that the mother also have time with the child on specific occasions subject to the mother not being “under the influence of illicit drugs or alcohol”.
On one view of the evidence, the parties cohabited for a period of approximately two and a half years which commenced 3 May 1996 and continued until they finally separated on 1 October 1998. The father contends there was a different period of cohabitation. Nothing significant arises out of the determination of whose recollection is more accurate so far as the issues in these proceedings are concerned. Indeed, neither of the parties was cross-examined in relation to this particular issue.
The mother is 45 years of age and engaged in home duties.
The father is 41 years of age and is employed as a technician.
The mother resides with the maternal grandmother Mrs Seales Senior and the mother’s brother R Seales in rented premises on the central coast. The child lives with them.
The father resides in premises owned by him in the western suburbs of Sydney. The father’s girlfriend Ms J lives with the father for part of the week. S regularly stays with the father during weekends, school holidays and at other times, but otherwise primarily resides with his mother.
The principal issues for determination for the purpose of making parenting orders that are in the best interests of the child are whether:
(a)      the child has been physically abused by the father;
(b)      the child has been emotionally abused by father;
(c)      the child has been sexually abused by S;
(d)      the child has been emotionally abused by S;
(e)there is an unacceptable risk of the child suffering child abuse perpetrated by the father and/or S;
A further issue is:
(f)the parenting skills and the capacity of each of the parties to provide for the physical, emotional and intellectual needs of the child.
As the father has been unrepresented throughout the hearing, with the exception of the last day, I have considered that it is appropriate to draw attention at this stage of the judgment to the following principles so far as a trial Judge’s responsibility for reviewing evidence and making findings of fact.
That is particularly apposite in these proceedings given the numerous and detailed allegations made by each party against the other which, with the benefit of objectivity, reflected a combination of point scoring, poor temperament and loss of focus on what is in the best interests of the child otherwise submerged in a sea of complaint and accusations.
As was stated by the High Court in Whisprun Pty Ltd v Dixon:
“A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”[1] (emphasis added)
[1] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 464 per Gleeson CJ, McHugh and Gummow JJ
I have also borne in mind the caution of the High Court of Australia that “prolixity is an enemy of comprehensibility and, indeed, cogency”.[2]
[2] ibid

Historical background

The following are further brief relevant and uncontroversial matters.
On 25 November 2003 a finding was made that on 21 December 2002 the mother contravened “contact orders” made on 30 May 2000 and did not have a reasonable excuse. The proceedings were adjourned to 28 November 2003 on a part-heard basis.
On 28 November 2003 a finding was made that the mother contravened orders made on 10 September 2003 and did not have a reasonable excuse. Orders were made for contact in favour of the father and otherwise his application was dismissed.
On 2 May 2005 in the Local Court Penrith an Apprehended Violence Order was made against the mother for the protection of the father for a period of two years.
On 12 September 2005 orders were made in the Federal Magistrates Court that the mother attend a post-separation course and the father have compensatory time with the child on 16 September 2005.
On 3 November 2008 in the Federal Magistrates Court on the hearing of the father’s application for orders in relation to the mother’s alleged contravention of parenting orders, orders were made that the mother was required to enter into a bond for good behaviour for a period of 12 months; the father ensure that the child is protected from the behaviour of S whilst the child spends time with the father; the father restrained from exposing the child to pornography; the appointment of an independent children’s lawyer; and all outstanding interim application were dismissed. Orders were also made dismissing the application of the father in relation to six alleged contraventions by the mother with findings that two contraventions were proved. Further, both parties were restrained from discussing the allegations in the proceedings with the child.
On 5 November 2008 in the Local Court an Apprehended Violence Order was made for the protection of the father’s former girlfriend from the father for a period of four years.
On 8 December 2008 orders were made by consent specifying the period of time that the father may spend with the child during the then forthcoming school holidays; that the father ensure that the child is not in the presence of S during that period; that the parties undergo specific drug testing and without admissions each party ensure that the child is not exposed to pornographic material, from using or threatening to use physical discipline on the child, and from taking or allowing any other person to take the child to a psychiatrist, psychologist or counsellor without the consent of the ICL or by court order.
On 29 April 2009 an order was made for the appointment of Dr B, psychiatrist and for him to prepare an expert’s report.
On 8 December 2009 in the Federal Magistrates Court orders were made by consent providing that in relation to time that the father may spend with the child during the Christmas holiday period 2009/2010 and providing that such time not be in the presence of S; and that the parties do all things necessary to undertake random drug tests as nominated by the independent children’s lawyer.
On 29 June 2009 and 22 March 2010 the father filed contravention applications alleging contravention of orders by the mother.

Relevant legal principles

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to a child of the parents having:
“…a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children.” [Emphasis added]
The principles underlying those Objects, in summary, include:
(a) children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”, namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.
Section 61DA(1) provides a presumption “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
Section 61DA(2) provides that such presumption does not apply should one or other of the following grounds be established, namely:
Should there be:
“…reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.”

Pursuant to s 61DA(4), the Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied “that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.

Relevant matters pursuant to section 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.[5]
[5] Section 60CC(3)

Views expressed by the child and other relevant factors

The mother gave extensive, detailed affidavit evidence of the child’s views in relation to spending time with the father.[6] That affidavit evidence has a theme of the child at different times voicing or acting in a way which showed his fear or anxiety and resistance to spending any time with the father in the circumstances set out in those affidavits.
[6] Affidavits sworn 07.10.2008; 02.12.2008; 27.04.2010
The affidavit evidence of the mother which underpins that theme includes the child’s adverse reaction to verbal and/or emotional abuse allegedly directed to him by the father, his fear of the father in the circumstances explained, regressive behaviour, illness feigned or otherwise prior to the approaching time to seeing the father, the father’s alleged threats of taking steps to have the mother gaoled, the child’s statements of wishing to be dead and on other occasions of threatened self-harm. In addition, there are further disturbing allegations of threatened and/or actual sexual abuse of the child by S at the father’s home.
The mother was cross-examined in relation to the substance of much of the affidavit evidence, to which I have referred, and her evidence was consistent with her affidavits and not shaken to any significant extent.
The maternal grandmother gave affidavit and oral evidence. Her evidence corroborated the evidence of the mother in circumstances where the child expressed his resistance to spending time with the father and his upset at the father allegedly having stated that “he was going to make sure that mum went to gaol and that I would have to go and live with him”. In addition, the maternal grandmother recollected that on a number of occasions the child complained to her about the father’s alleged verbal abuse of him.
The father provided voluminous affidavit evidence.[7] That evidence together with his oral evidence viewed as a whole amounted to a denial of the evidence of the mother which founded her case so far as the views of the child are concerned and in part the father stated that the mother had fabricated that evidence.
[7] Affidavits sworn 16.11.2009; 15.12.2009 and 02.05.2010.
Exhibit 13 includes school counselling notes arising out of interviews between the child and school counsellor on 20 November 2008, 4 December 2008 and 12 January 2009. Those notes reveal the child has had significant anxiety in relation to spending time with the father and fear of him. The child also made a disclosure of the alleged sexual abuse and threatened abuse he was subjected to by S.
Extensive evidence was given by the court appointed expert Dr B, psychiatrist. That evidence comprised his Report dated 29 August 2009 being Exhibit 2 as well as his subsequent oral evidence.
In Exhibit 2 Dr B reported that whilst the child was seen with his mother, the child said “that he didn’t want to get contact with his father”. The child said:
“…he is always screaming at me. I don’t enjoy it. [S] does things to me. Dad is rude with ladies in front of me”.
In addition, Dr B expressed the view that the child “cares a great deal about both parents” and had previously been happy with an arrangement whereby he saw the father on a regular basis. Dr B further stated:
“…although [L] made some negative statements about his father I don’t believe that they were a true reflection of his feelings. He made vague comments about not wanting to see the father however, he did indicate that they did things together that they enjoyed.
Dr B was sceptical in relation to the child’s complaints about the father. His observation was during the course of the interview with the child and the father the child “appeared remarkably comfortable with his father”. Dr B discounted the child’s complaints and reported anxiety in relation to the father as he considered they reflected influence, whether deliberate or otherwise, by the mother.
During the course of his oral evidence Dr B was not directly cross-examined in relation to that part of Exhibit 2 which dealt with the child’s views. Rather, the emphasis was upon the child’s relationship with the father and factors that were relevant to that particular issue.
However, it is clear to me that Dr B considered that the child had a comfortable relationship with the father, albeit attended by what were complicating factors of possible alienation due to the child’s close relationship with the mother and maternal grandmother, as well as the father’s own unacceptable behaviour to the child arising from his lack of insight into the appropriate way of relating to the child in various circumstances to which subsequent reference will be made. Consequently, it can be inferred from the summary of that evidence that Dr B was of the opinion that the child’s view was to continue to spend regular periods of time with the father each month and during school holidays.
I find that the views of the child in relation to the mother are that he continues to live with her. There is a large body of unchallenged evidence from which that finding can be inferred. I also find that the child has, inferentially, a close relationship with the maternal grandmother and that there are no negative views expressed by the child so far as the maternal uncle is concerned.
With regard to the father, I have concluded that the child has expressed views of resistance to spending time with the father and also with S due to the weight I have attached to not only the mother’s evidence but also Exhibit 13. I am not satisfied on the balance of probabilities that the evidence taken as a whole can simply be diminished on the basis that Dr B has in Exhibit 2 given his oral evidence, referred to, to a lesser extent, in Exhibit 2 that the father has demonstrated a lack of insight at times in the manner in which he has related to the child and that the father’s manner may well have contributed to the views expressed by the child.

The nature of the relationship of the child with each of the parties and other persons

In Exhibit 2, Dr B said the child “appeared to have a close loving relationship” with the mother and that they have “a solid united bond” between them. He emphasised those views elsewhere in Exhibit 2 under the sub-heading “Opinion”.
In addition, Dr B implicitly concluded that the child had a fond relationship with the maternal grandmother and did not express any adverse view regarding the relationship between the child and the maternal uncle who lives in the same household with the mother and maternal grandmother. No doubt, such an adverse view, if it existed, in Dr B’s opinion, would have been expressed by him. Dr B further expressed the view that the child was “developing normally” in the mother’s care, qualified to the extent that Dr B was of the opinion that:
“the mother has significant personality difficulties with dependent and borderline features. I believe there is a high degree of over involvement between [the child] and his mother as there appears to be between [the mother] and her mother this enmeshment between the family members doesn’t appear to be such a great problem yet; however, with adolescents I believe it will be a significant issue”.
The reference in the preceding quotation to “[the mother] and her mother” refers to the mother and maternal grandmother in these proceedings.
Unfortunately, neither in Exhibit 2 nor during his oral evidence did Dr B explain the basis for his qualifying opinions to which I have referred.
Exhibit 2 also contains Dr B’s record of observations and discussion with the child. He noted that the child did not respond to questions about the father and that upon being asked again the child appeared “unsure how to answer the questions” and set out the child’s comments which were obviously very negative so far as the father was concerned. Dr B was sceptical about the sincerity of the comments emanating from “a ten year old boy”. Dr B further quoted the child with regard to his relationship with the father and visits with him. He reported the child’s negative comments.
Ultimately, in Exhibit 2 Dr B concluded that the child “had a close loving relationship” with the father. He considered that they had a “strong bond with each other”.
Disconcertingly, Exhibit 2 is silent as to the basis for those conclusions and/or the apparent total discounting of the child’s negative comments to which earlier reference has been made by way of summary from Exhibit 2, other than the suggestion of the mother’s influence for which no analytical basis was given.
During his oral evidence Dr B acknowledged that Exhibit 2 was absent of any observations that he had of seeing the child and the father together albeit that that was an important matter. However, he stated that he had in fact observed them and their relationship to each other and concluded that “the child was comfortable with the father”. Dr B did not explain that if there was such a positive relationship between the child and the father, that had to be seen in the context of, and perhaps warranted some explanation of the child’s adverse statements about the father and distress with the father’s personality. Dr B also acknowledged that the father’s personality style was qualified by the father’s lack of insight and manner in dealing with the child.
With regard to the suggestion in Exhibit 2 that the child was in the process of being alienated against the father by the mother, Dr B stated in his oral evidence that so far as any alienation is concerned “there’s probably a dual process that contributed to it” namely, the father’s lack of insight and manner in dealing with the child together with the mother’s antipathy towards the father.
The evidence of the maternal grandmother supports the case of the mother in relation to the child being resistant to spending time with the father. I accept the maternal grandmother’s evidence which was not shaken in cross-examination.
In consideration of the evidence which I have summarised with regard to the nature of the relationship between the child and each of the parties, I find that the child has a close and strongly bonded relationship with the mother and that whilst there are positive aspects of the child’s relationship with the father, it has been severely undermined by a combination of the child’s reaction to the father’s lack of insight in and manner of relating with the child, together with his negative comments about the mother which have caused the child distress.
In addition, I have concluded that the relationship between the child and the father is also negatively impacted upon by the mother’s adverse views and relationship with the father, contributed to by the father’s poor behaviour and comments about the mother. I add that I have not given weight to Dr B’s conclusions with regard to the alleged close relationship that the child has with the father, due to the unsatisfactory way in which that important matter was treated in Exhibit 2, which was not remedied in any detailed analytical form during the course of Dr B’s oral evidence.
The issue of the relationship between the child and S is an important issue for determination in the proceedings.
The mother has alleged that S has threatened the child with sexual abuse and has in fact sexually abused the child in a manner different to the threat. As the mother made clear in her oral evidence, her raising this disturbing issue is based upon comments allegedly made to her by the child.
The relevant part of the mother’s affidavit evidence is set out in her Affidavit sworn 7 October 2008, paragraph 2. I have omitted that part of the affidavit which sets out the child’s complaint so far as the father’s sexual relationship is concerned as it is irrelevant to the issue:
“2.I have concerns as to the time my son [L] spends with his father [Mr Pacillo] and in the presence of his half-brother [S]. Following visits to [sic] with his father [L] has repeated to me the following incidents in relation to [S] and himself.
(a) [S], ([L’s] half-brother) said to [L]:
‘I am going to rape you.’
[L] said to me:
‘[S] keeps exposing his dick to me. [S] pulled down my pants and sat on me. I could not sleep because I thought [S] was going to come into my room and rape me.’
I said:
‘Why didn’t you go and tell your father?’
[L] said:
‘He was in the other room having bad sex.’
…
[L] then commenced to make what seemed to be a moaning noise. He said:
‘I lay awake all night, I was really scared.’
For the next few weeks [L] had nightmares. He would wake up screaming:
‘Go away. Stop’
(b) [S] has masturbated in front of [L]. [L] said:
‘[S] was rubbing his dick and all this white stuff came out and [S] told me to lick it.’
[L] said:
‘No. Yuk!’
[L] then asked me:
‘What was the white stuff?’
[L] told me this happened about three or four times.
(c)In approximately August, 2008 following a period with the Respondent, [L] said to me:
‘[S] and I were on the internet at Dad’s place. [S] said, ‘I will give you a massage’.’
[L] then said:
‘[S] started rubbing my shoulder blades and then his moved his hands down into my pants and touched my dick.’”
The mother was cross-examined in relation to the issue referred to in paragraph 71 hereof. The mother said that upon the child making the statements set out in her affidavit, she did not quiz him. On the next occasion the child was due to see the father she took the child for that purpose and also consulted her solicitor. The mother stated “around that time” she “stopped the access” as she was not certain of the extent of the allegations. The mother stated that she believes that what the child said to her was true. The matter has been reported to the Department of Human Services who have not done anything. Her solicitors commenced court proceedings. The mother states that she relied on her solicitor’s advice and proceedings were initiated by an application filed on or about 17 October 2008. The mother also stated that she was unable to discuss matters with the father as he hung up on her whenever she telephoned him. In addition, the mother said that the child stated to her that the father would not believe him and would call him a liar.
During the course of further cross-examination, the mother firmly stated that she had not fabricated the complaints or allegations in order to stop the father from seeing the child.
Further cross-examination of the mother was wide-ranging in relation to a number of matters of which she gave evidence in her affidavits. However, her evidence on this particular issue as set our in her affidavit and subsequently explained as being based upon statements by the child was not departed from.
The essence of the evidence given by the father was that he rejected any suggestion of abuse of the child by S and that the allegations were a fabrication.
Exhibit 13 contains disclosures by the child, to which earlier reference has been made. S was not subpoenaed, nor was leave sought by any of the parties or the ICL for S to give evidence.[8]
[8] Section 100B(2)
In Exhibit 2 Dr B recorded disclosures made by the child to him in relation to the alleged sexual abuse as well as pornography that he claimed he saw in a room in the father’s house.
Dr B conducted a telephone interview with S as referred to in Exhibit 2 and the specific allegations were not raised with S by Dr B. Instead he asked S:
“if any thing bad had ever happened to him. He said nothing bad had ever happened to him or had ever happened to [L]. He said nothing adverse or untoward had happened between him and [L].”
Dr B reached conclusions in relation to this issue as set out in Exhibit 2. With regard to the relationship between L and S, Dr B stated that his view was “that they most probably did have a strong relationship with [S] prior to allegations”. The reference to “they” is reference to the child and the mother. Dr B stated:
“there was no information provided that indicated that there was every any suggestion that [S] had ever had any anti-social problems or had been a sexual threat to other children or [L] in the past. I believe that it is a grave allegation to make such a statement against [S] and the impact has been very significant.”
Undoubtedly, the allegation is “grave” and the impact has been “very significant”. The difficulty is that Dr B does not give any explanation, from a professional standpoint, as to the reason for rejecting the allegation other than referred to in paragraph 80 hereof. The conclusion Dr B reached is stark when one considers that he only had a telephone interview with S, as opposed to interviewing S in person and observing the child and S together. Exhibit 2 does not provide any explanation for those omissions.
During the course of his oral evidence Dr B stated that his telephone interview with S was at Dr B’s request. With regard to any limitation upon his ability to make assessments in those circumstances Dr B replied “well it’s not ideal but I believe that it was helpful to form a view”. Dr B acknowledged that he did not have the opportunity to see L with S. He agreed that to some degree there was a limit on his capacity to carry out the assessment. Dr B did not give any reason for the telephone interview with S, notwithstanding the “grave” allegations, rather than request S to attend his rooms for a face to face interview and observation of S with the child.
Dr B further stated that:
“I wasn’t struck by the allegations or the risk that was presented by [S]. I formed the view that although I hadn’t, perhaps, be able to see the parties together and to be able to complete a full assessment, on the evidence that I could glean, there didn’t seem to be sufficient concern to regard [S] as an unacceptable risk to the child”.
On the face of it, this seems a curious conclusion to have been reached considering the detailed allegation put forward by the child in Dr B’s interview with him, as well as the information presented by the mother referred to in Exhibit 2 and the overall resistance of the child to spending time with the father and S.
I attach little weight to the evidence of Dr B in relation to the important issue of the allegations of abuse that the child has made against S due to the matters set forth in paragraphs 72 to 84 inclusive in this Judgment, as well as the detailed disclosures set forth in Exhibit 13.

I have concluded that I am not satisfied that S has in fact either sexually abused the child or threatened to do so as alleged for these reasons. The allegations raise grave matters of behaviour by S to the child. Whilst the civil standard of proof applies, namely the balance of probabilities, in order to be so satisfied, I am required to not only take into account the nature of the proceedings but also “the gravity of the matters alleged”.[9]
[9] Section 140(2)(c) Evidence Act 1995 (Cth); Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
There is evidence to suggest that in the past the child and S had a good relationship. There is little, if any, evidence to explain such an adverse change in the relationship. In addition, leave was not sought by either of the parties or the ICL to call S as a witness. Dr B’s evidence when analysed and considered by me neither support the allegations nor convincingly demonstrated them to be of little or no merit.
The issue then arises as to whether there is an unacceptable risk of child abuse being perpetrated against the child by S.[10] The issue of unacceptable risk is a very serious matter indeed because of the implications so far as the child’s best interests are concerned, particularly that of safety, and the fact that the allegations have been made in relation to his step brother S who is now 16 years of age. In terms of being satisfied on the balance of probabilities the same matters trouble me in relation to being so satisfied as set forth in the preceding paragraph. Whilst I am left with significant disquiet about the issue of unacceptable risk of child abuse, I have concluded after considerable review of the evidence that I cannot make such a finding.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

[10] M and M (1988) FLC 91-979

Whilst it is clear from the orders sought by each of the parties being Exhibits 8 and 16, that they are each willing to enable a continuing relationship between the child and the other party, I find that neither of them is willing and has the ability to facilitate and encourage a “close and continuing relationship between the child and the other party” for the reasons set forth in the following paragraphs.
So far as the mother is concerned, it is obvious from Exhibit 8 as well as the issues raised by her that any order which provides for the child to spend time with the father is qualified by potential findings of “significant risk of violence” and otherwise by her allegations that the child has demonstrated fear and anxiety in relation to time to be spent by him with the father for the reasons set forth in her affidavit and oral evidence. Counsel for the mother clarified that “significant risk” referred to “unacceptable risk”. My findings in that regard are set forth in previous paragraphs.
It is apparent from Exhibit 16 that the father suggests a routine of time that the child might spend with the mother in the event of the child primarily living with him, qualified by a requirement as he contends that “the mother is not under the influence of illicit drugs or alcohol”. It is also clear from his voluminous affidavit sworn 16 November 2009 that the father considers the mother as having alienated the child against him because he contends she has a borderline personality disorder and she does not promote the relationship between himself and the child. The evidence of the parties is replete with his adverse views of the mother.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty in the child spending time with each party due to the distance between their residences.
The mother resides with the child on the central coast whilst the father resides in the western suburbs of Sydney.
Counsel for the mother informed me that the distance between both residences is approximately 60 kilometres and the driving time approximately one hour.
Rail transport has been utilised for the purpose of the child meeting and spending time with the father and returning at the end of that time in the same manner to the care of the mother. The mother does not have a driver’s licence although the paternal grandmother does and has assisted in the past. The father has a driver’s licence.
Clearly there is an expense involved. Neither of the parties gave evidence that the expense of travel represented an obstacle to the child spending time with either of the parties.
The practical difficulty which exists in relation to communication is due to the almost non-existent communication between the parties because of their entrenched conflicted relationship that is a significant handicap to the child having an effective and relaxed opportunity of communicating with one party or the other.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

There is no issue that each of the parties has the capacity to provide for the needs of the child so far as their respective premises are concerned which have all the necessary features and facilities for him.
So far as the mother’s capacity to provide for the child’s emotional needs, it has been a central plank in the father’s case that due to her unwarranted negative attitude towards him the child has been allegedly alienated or, in the process of being alienated against him, due to the mother’s actions and to some extent the actions of the maternal grandmother, the consequence is that the mother lacks the capacity to provide for the child’s emotional needs to have a relationship with the father for the benefit of the child.
There is some support for the father’s case in this regard which emerges from Exhibit 2. However, Dr B’s oral evidence was more detailed on this troubling subject. Dr B opined that the child had been traumatised “by the way both parents have attempted to use him as a weapon against the other parent”; that the child “was under incredible pressure between the parents” due to their conflicted relationship.
On the question of alleged alienation made by the father, factors to take into account so far as Dr B is concerned included the close relationship between the child and the mother, and the father’s relationship with the child in the circumstances where the father:
“does not have a great deal of insight into the understanding of children of this age, nor the situation that the child finds himself between the parents and also the inappropriate punishment. So I say it’s of major concern.”
In addition, a concerning factor is the child’s worry about there being a reporting to the father of “what the child had said” to Dr B.
I accept the abovementioned evidence which demonstrates Dr B’s detailed consideration of the subject during the course of his oral evidence.
I find that the mother has the capacity to provide for the child’s emotional needs given the history of her support of the child in all aspects of his development and the orders for periods of time she is seeking that the child spend with the father, qualified only by her concern regarding the child’s anxiety about spending time with the father and the father’s manner of relating to the child, the subject of the evidence of Dr B which corroborates the mother’s evidence.
In addition, I find that the mother has not alienated or embarked upon a course of alienation of the child towards the father, albeit that the conflicted relationship between the parties has contributed to the child’s anxiety where the father is concerned, the trauma the child has experienced as a result of that anxiety, and last but far from least, the father’s lack of insight into the appropriate manner in which he has been relating to the child at times. That includes the father’s lack of sensitivity and understanding when punishing the child by “grounding” which Dr B considered to be inappropriate for the reasons explained by him in his evidence. The father’s historical lack of insight is also demonstrated by his interrogation of the child about six years ago graphically shown in the video recording tendered by the father himself which became Exhibit 15.
I find that each of the parties has the capacity to provide for the child’s intellectual needs. In that regard, I accept the evidence of the mother which explains school absences by the child which must be seen in the historical context of the child making satisfactory school progress.

The parental attitude of each of the parties

I find that the mother has an appropriate parental attitude to the child as she has been caring and supportive of him and has been the child’s primary carer since the parties separated.
I accept the evidence of the mother that she has been and remains supportive of the child in all aspects of his life, including being solely responsible for the child’s financial support with the assistance of the maternal grandmother.
The father’s parental attitude to the child has been compromised due to the stress and anxiety that the child has suffered as a result of not only the conflicted relationship between the parties but also the father’s behaviour towards him from time to time the subject of findings in this Judgment.
In addition, the father has abandoned his financial responsibility for supporting the child in that he has not paid any child support for some years.
By way of contrast, the father has paid and continues to pay child support for S.

Family violence and family violence orders

There have been family violence orders to which previous reference has been in this Judgment.
Section 4(1) of the Act defines “family violence” as follows:
“Family violence means 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.” (Emphasis added)
I have previously stated, for the reasons given, that I have not been satisfied on the balance of probabilities that a case has been made out in relation to the allegations of violent conduct by S towards the child which attracts the definition of “family violence” referred to in the previous paragraph.
So far as the father is concerned, there have been instances of his manner of relating to the child demonstrated by the language he has used and his demeanour at the time have caused the child to “reasonably to fear or, or reasonably to be apprehensive about” his “personal wellbeing or safety”.[11]
[11] Section 4(1) of the Act.
I make that finding having accepted the evidence given by the mother, Exhibit 13, and the evidence of Dr B regarding the father’s lack of insight into the appropriate manner of relating to the child as well as the nature and effect of the father’s demeanour.

The maturity, sex, lifestyle and background of the child and with either of the parties

The child appears to have the maturity commensurate with a young boy now 11 years of age subject to the pressures with which he must cope given the entrenched, conflicted relationship between the parties and the difficult aspects of his relationship with the father and S.
I have made findings with regard to the relationship between the child and the father as well as S, referred to in previous paragraphs of this Judgment.
The child has a multicultural background given that the paternal grandmother is of Italian origin which potentially provides benefits to the child depending upon the ongoing strength of his relationship with her and the encouragement which may be provided by the father as well as the mother.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

In view of the conflicted parental relationship and litigation between the parties in this Court and other courts make it difficult to predict which orders are less likely to lead to the institution of further parenting proceedings.
However, an order that the child live with the father, instead of the mother, represents significant changes that the child will have to adjust to, bearing in mind the father’s oral evidence of his proposals that the child may live during week days with the paternal grandmother; also be enrolled in a new school; and adjustments the child will have to make to no longer living in the primary care of the mother and the periods of time that he will have in her care which will be necessarily restricted.
The difficulties that may then arise in terms of the child adjusting to such changes may create a greater likelihood of further proceedings being instituted between the parties, compared to an order that the child continue to live with the mother.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living

The most substantial change in the child’s circumstances is the father’s proposal that the child primarily live with him. In order to consider the likely effect of such a change it is necessary to state the detail of the father’s proposal.
Prior to the father giving oral evidence, his proposal was that the child live with him in circumstances where he is the child’s primary carer. That is referred to in his affidavit evidence as well as in Exhibit 2. During the course of his oral evidence the father explained that he was able to care for the child as his working hours were from 8.00am to 4.30pm on week days and that he would be assisted in the child’s care by Ms J who lived with him five nights per week. That was particularly significant as the father’s employment required him to be available to be on call one week in four. After hours emergencies if they took place, which of course could not be predicted, may entail him being away from his home for three or four hours and that such emergency requirements may take place at night. Otherwise, the father’s proposed orders so far as the time the child might spend with the mother were not departed from.
However, during the course of the father’s oral evidence, he stated for the first time other features of the child being primarily in his care. Ironically, those features involved the child not being primarily in the father’s care but rather in the care of the paternal grandmother. The father’s evidence was that it was possible, so far as he was concerned, that the child might live with the paternal grandmother on week days and with the father on weekends. The father would visit the child on week days outside his working hours.
The father further explained during the course of his oral evidence, that the paternal grandmother’s home unit included two bedrooms and both she and the father’s brother lived there. The father contemplated that he, presumably with the approval of the paternal grandmother, may section off part of the living room for use by the child as the paternal grandmother had a pull out couch and fold up bed. The father had not considered whether Ms J would stay there as well. The father explained that the child may perhaps attend the local Public School, although he had not spoken to the child’s current teacher or Principal to ascertain if the child could satisfactorily make an adjustment in these circumstances.
Interestingly, no evidence was given by the paternal grandmother in her Affidavit sworn 2 January 2009 of her willingness to support such a proposal, nor during the course of her oral evidence. During cross-examination, the paternal grandmother stated that the child had never slept at her home except during school holidays.
I accept the evidence of the father of his proposals for the future care of the child, to which I have referred. Consequently, it is clear that changes in the child’s circumstances as proposed by the father include the child no longer living with the mother with whom he has lived all of his life, moving into the primary care of the father and/or paternal grandmother, inferentially significantly less periods of time in the care of the mother and possibly enrolling in a new school.
The father’s proposals, to which I have referred, were not the subject of any mention let alone assessment in Exhibit 2. In addition, the father did not put such proposals for comment by Dr B during the course of his oral evidence.
Given the findings made with regard to the child’s close relationship with the mother in circumstances where she has been the primary carer for all of his life, the anxiety that the child has demonstrated from time to time about periods of time he was due to spend in the care of the father, and the findings made by me with respect to the father’s lack of insight and the manner of his relationship with the child, I consider that a likely effect of changes in the child’s circumstances to which I have referred would be detrimental to his best interests. That is accentuated by the proposal of the father that the child may live primarily or substantially with the paternal grandmother on week days was a new proposal of the father which was not the subject of any expert evidence by Dr B as presumably the father had not raised the possibility with him.

Conclusion

Section 61DA provides for a presumption of equal shared parental responsibility when making a parenting order in relation to a child.
Section 61B provides that “parental responsibility” in relation to a child means all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.
I have previously referred to the grounds upon which the presumption of equal shared parental responsibility may be rebutted or set aside.
I am satisfied that the presumption does not apply as the ground set forth in s 61DA(2)(b) namely that “family violence” has taken place. That is established as a result of my findings so far as the father is concerned and the family violence orders that have been made from time to time to which earlier reference has been made.
Once the ground pursuant to s 61DA(2)(b) has been established, the presumption of equal shared parental responsibility does not apply as s 61DA(2) does not provide for a discretion to be exercised in that regard. That is in stark contrast to the best interest ground in s 61DA(4) which commences with the words “the presumption may be rebutted” (emphasis added).
However, for the purpose of making an order for sole parental responsibility which is the order sought by each of the parties in his or her favour, such an order is a parenting order and the best interests of the child is the paramount consideration.
I have concluded that it is in the best interests of the child that an order be made in favour of the mother for sole parental responsibility for the following reasons.
The mother has been the sole primary carer of the child throughout the child’s life. The mother has cared for and supported the child in his development including for some years without any financial support having been provided by the father. That situation which Dr B described as “appalling” with which I agree, still existed at the time the hearing took place and at the conclusion of evidence. The only excuse given by the father for that lamentable state of affairs was that he was paying child support for S and did not have any available funds to provide for child support for the child. However, the father informed the Court that he would be seeking to reduce the level of child support provided for S so that he could pay child support for the child. I do not attach any weight to that proposal coming as it did only when this subject was raised with the father in the course of cross-examination.

The child has progressed satisfactorily at school and engaged in a range of sport and extra-curricular activities supported by the mother.
Consequently, all of the major aspects of responsibility for parenting the child including financial support have been provided by the mother with the assistance of the maternal grandmother.
I have also concluded that it is in the best interests of the child that he live in the primary care of the mother. The succeeding paragraphs set out my reasons.
The parties separated whilst the mother was pregnant with the child. The mother has been the primary carer of the child throughout his life. There have been periods when the child has been in the care of the father subject to the primary care of the mother and at times such periods of care have taken place without controversy. Unfortunately, that has not been the situation since 2008 when allegations were raised by the mother in relation to abusive or inappropriate behaviour by the father and S towards the child and the claims and counter-claims of the causes of the escalating conflicted relationship between the parties.
I have made findings in relation to the respective capacities of the parties to provide for the physical, emotional and intellectual needs of the child. I do not propose to reiterate those findings. Suffice to say that I am satisfied that the mother’s proven capacity in all respects have been generally for the benefit of the child, whilst on the other hand the father has shown a significant lack of appropriate insight into aspects of his relationship with the child and his manner and demeanour at times have been such that it has only heightened the anxiety experienced by the child and fear of spending periods of time with the father.
The mother’s proposal is that the child continues to live under her primary care in the household comprising herself, the child, the maternal grandmother and maternal uncle. In addition, the mother proposes to continue to support the child in all of his school, sport and extra-curricular activities in respect of which he has made satisfactory progress. The continuation of the stability that has provided is clearly in the child’s best interests, particularly against a background of the deeply conflicted relationship between the parties and the tension that has created so far as the child is concerned.
The mother also proposes to continue providing support for the child without relying upon financial support contributed by the father. The father has been grossly neglectful for some years in his failure to provide any financial support for the child whatsoever. I do not accept his reasons for that state of affairs as being a reasonable excuse.
In addition, I have considered the father’s proposal for his care of the child in the event of an order being made in his favour that the child live with him. That proposal has a number of possibilities which had not been raised by the father prior to him giving oral evidence despite ample opportunity to have done so in his affidavits. Indeed, no reason was given by the father for having made these serious proposals only during the course of his oral evidence whilst being cross-examined. Those proposals include the possibility of the child living with the paternal grandmother on week days combined with the change of school and otherwise the father to exercise care of the child whenever he happened to visit the paternal grandmother as well as on weekends. No evidence was given by the paternal grandmother in support of the father’s proposals.
The changes that the child would have to meet and adjust to satisfactorily, in his best interests, have been referred to earlier in this Judgment. They are significant changes as would be obvious even on a cursory consideration of them. The impact upon the child in those circumstances did not feature in the father’s evidence of his own consideration of them.
I am satisfied that the child will have the continued benefit of stability and routine in the primary care of the mother from which he has benefited all of his life, rather than face the substantial changes necessarily inherent in the father’s proposals for the child to live with him.
There has been substantial evidence given of the father’s lack of insight in the appropriate manner of furthering his relationship with the child and at times his angry or confronting demeanour. My adverse findings in that regard are supported by the expert evidence of Dr B. The father has shown an insensitivity and rigidity of thought, not only from an historical perspective, but also for the future where the child is concerned. This is exemplified by the father’s proposal to ground the child by way of punishment for what the father categorises as the child having “stolen” his USB device from the father’s home. The father volunteered that he considered the child had been urged or “put up” to this by the mother to remove the USB which had links to pornographic sites. Notwithstanding that the father was convinced that the mother had manipulated the child for the purpose of this litigation, nonetheless the father could not or would not appreciate that it was inappropriate to punish the child, who is still a young boy aged 11 years, for something which the father blamed the mother for having taken place. Dr B commented adversely upon the father’s approach to this event.
In addition, the father’s inflexible approach, where arrangements with the mother for the child are concerned, is also a worrying aspect of his parental ability especially against a background of poor communication between the parties. The father would not agree to alternate Christmas Day/Boxing Day periods to be spent between the parties with the child. No rational reason was given by him. Further, the father considered that the child participating in a sporting activity which might clash with a time or period that the child would otherwise spend with the father was somehow prioritising sport above being with a parent. The father did not seem to be able to appreciate that a young child may gain pleasure from the father’s presence and encouragement for the child at sporting events, especially in the context that the focus in these proceedings is the best interests of the child, a matter the father was reminded of on numerous occasions. It seems the father’s approach was that the primary focus should be upon him and that the child’s time with him should be as he dictated, without flexibility of enabling and encouraging the child to participate for his physical and emotional development in sport or extra-curricular activities with children of his own age.
I propose to make orders for the time that the child might spend with the father on a conditional basis.
The first suite of such orders is linked to the father enrolling and completing an anger management course and subsequently providing a certificate that he has satisfactorily completed it. The father clearly has a significant issue with controlling his temperament and confronting demeanour of which there has been substantial evidence which I have accepted and is otherwise supported by the professional assessment of Dr B. The father seeks to minimise the problem as simply representing frustration on his part so far as these proceedings are concerned. I do not accept the father’s evidence in the face of overwhelming evidence to the contrary. I consider it to be in the best interests of the child that the father satisfactorily complete an anger management program so that, hopefully, he will be able to better control himself and therefore provide a more relaxed and secure relationship with the child. There has been substantial evidence of the child’s anxiety and fear of the father in relation to spending time with him, which I have accepted, and to which previous reference has been made.
I have concluded that it is in the child’s best interests that there be relatively short periods of time that the child spends in the care of the father until he has satisfactorily completed an appropriate anger management program. To that extent, I have adopted the proposals of the mother so far as those periods are concerned, although the mother’s proposals were prefaced on another basis, namely “significant risk”.
Upon the father providing a certificate that he has satisfactorily completed the appropriate anger management program, then there will be significantly greater periods of time that the child is available to be in his care.
Orders will be made by me reflecting all of these features.
Given the father’s intransigence so far as the child participating in sporting activities during periods that he otherwise is in the care of the father, I will make orders to ensure that priority is given for the child’s continued participating in those activities as being in his best interests for the reasons previously referred to. It will be the responsibility of each of the parties to take the child to such activities and collect him, especially if there is likely to be a clash in the conclusion of such activities and the time of change-over of care of the child from one party to the other. A further complication in this regard arises due to the distance between the homes of the parties and the need for there to be a meeting place at D Railway Station. Obviously, the parties will need to regularly check the railway timetable as flexibility will be needed to accommodate changes in the railway timetable and the child’s sport or extra-curricular activities. Hopefully, common sense will prevail. I will make orders which give the parties flexibility, from a practical viewpoint, to substitute alternative or other periods of time that the child spend with the father to accommodate change in circumstances. The parties need to bear in mind that the child’s reasonable needs and activities will change as he grows older. The child will depend upon the parties for mature and flexible arrangements so as to promote his best interests free of tension and pressure, so far as it is possible to do so. This is particularly so against a background where that tension and pressure has historically been caused by the parties to these proceedings and not the child.
In view of my findings in relation to the allegations of abuse involving S, the orders do not provide any restriction with regard to the child being in S’s company. However, it will be the father’s responsibility to ensure that the relationship between S and the child is monitored in a sensitive manner and the child not be forced to participate in time to be spent with S, unless he is comfortable in doing so. Unless that happens, there is a real probability that further anxiety will be experienced by the child and that will only lead to yet another round of litigation between the parties which cannot be to the benefit of either of them, let alone the child.
Orders will also be made for communication between the parties in the event of the child suffering a serious illness or injury and for the mother to authorise the Principal of all schools attended by the child to furnish the father at his request and expense copies of school reports and other relevant documentation.
No reason was advanced in the evidence before me that should restrict the parties from attending the child’s school, sport or extra-curricular activities where parents are permitted to attend. An appropriate order will be made.
There has been considerable evidence of derogatory comments made by the father about the mother in the presence or hearing of the child and I have little doubt that the child has been sensitive to the negative attitude of the mother to the father. I have concluded that it is in the child’s best interests that an appropriate injunction be granted restraining each of the parties from denigrating or making critical remarks about the other or referring to any aspect of the evidence in these proceedings in the presence or hearing of the child. Each of the parties will also be required to use his or her best endeavours to ensure that no other person conducts himself or herself in that fashion.
In making all of the parenting orders to which I have referred, I have given consideration to the benefit of the child having a meaningful relationship with each of the parties and the need to protect him from physical or psychological harm or being exposed to abuse, neglect or family violence. Those considerations are supported by the continued stability and routine which generally speaking has benefited the child in the mother’s care of him and her continued support of periods of time that the child should spend in the father’s care. The mother has demonstrated a flexibility of approach in that regard including supporting the proposition that both of the parties should be able to attend the child’s relevant sport and extra-curricular activities and has spontaneously recognised in her evidence the benefits to the child of appreciating the father’s hard work and placing himself in a position to own his own home. By way of contrast, the father has not shown in his evidence any generosity of spirit towards the mother. Indeed, the father’s affidavit evidence is marked by his constant reference to the mother having a borderline personality disorder, which I find was referred to in numerous instances by the father as his way of seeking to demean the mother. In addition, I consider that so far as it has been practical to do so, the conditional orders for time to be spent by the child with the father support the primary consideration that the legislation requires namely the need to protect the child from psychological harm or being exposed to abuse.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 31 August 2010 (amended 1 September 2010)

Associate:

Date: 1 September 2010

[2010] FamCA 759

31 August 2010

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