SHARWIN & WELDEE

FAMILY COURT OF AUSTRALIA

SHARWIN & WELDEE

[2012] FamCA 1081

FAMILY LAW – CHILDREN – Magellan proceedings – sole parental responsibility – with whom a child lives – best interests of children – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof – where counsel for the mother conceded that the evidence could not support a finding of unacceptable risk that the child would be sexually abused in the care of the father – whether it is appropriate for the father to spend unsupervised time with the children – where it is appropriate for the father to unsupervised time with one child.

Family Law Act 1975 (Cth) ss60CC; 60B; 61DA, 65DAA
M&M (1988) 166 CLR 69
MRRvGR (2010) 263 ALR 368; N&S (1996) FLC 92-665
W and W (Abuse Allegations; unacceptable risk (2005) FLC 93-235

APPLICANT:

Ms Sharwin

RESPONDENT:

Mr Weldee

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

BRC

9688

2011

DATE DELIVERED:

20 December 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Stevenson J

HEARING DATE:

13 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC

SOLICITOR FOR THE APPLICANT:

Michael Dwyer Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Weldee appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lions

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

That all existing parenting orders in relation to the child B born on … December 2004 (“the child”) are discharged.
That the mother has sole parental responsibility for the child, on condition that she give no less that 14 days written notice to the father of any impending decision in relation to the long-term care, welfare and development of the child and that she takes into account his views on such issues.
That the child lives with the mother.
That the child spends time with the father:
4.1from 2:00pm on Christmas Eve 2012 until 2:00pm on Christmas Day 2012
4.2from 5:00pm on 11 January 2012 until 9:00am on 14 January 2012
4.3from 5:00pm on 25 January 2012 until 9:00am on 28 January 2012
4.4each alternate weekend during school term time from the conclusion of school on Friday until the commencement of school on Monday or Tuesday in the event of a long weekend, with such time to begin on the first weekend of each school term
4.5in each other week during school term time, from the conclusion of school on Wednesday to the commencement of school on Thursday
4.6for one half of all school holidays, being the first half in even-numbered years and the second half in odd-numbered years with such time to commence in the holidays at the end of the first term in 2013
4.7from 9:00am until 5:00pm on each Fathers Day if the child is not otherwise in the care of the father pursuant to these orders
4.8on the child’s birthday from 3:00pm until 7:00pm in even-numbered years and from 9:00am until 12:00noon in odd-numbered years if the child is not otherwise in the care of the father pursuant to these orders.
That the child spends time with the mother, if he is not otherwise in her care pursuant to these orders:
5.1from 9:00am until 5:00pm on each Mothers Day
5.2on the child’s birthday from 3:00pm until 7:00pm in even-numbered years and from 9:00am until 12:00noon in odd-numbered years.
That the child have telephone contact with the father at 4:30pm each Tuesday and Thursday, with the father to call the mother’s landline or mobile number.
That for the purposes of implementation of these orders, the parties effect changeovers at the child’s school whenever possible and otherwise at a point to be nominated by the Independent Child’s Lawyer no later than 10:00am on 24 December 2012 in default of agreement by them.
That each of the parties do all things necessary to cause the issue of a passport for the child.
That each of the parties is at liberty to travel overseas with the child, provided that he or she furnish to the other parent copies of tickets, an itinerary and details of accommodation and on further condition that no such trip is made before September 2013 unless otherwise agreed in writing.
That the mother is forthwith restrained from taking the child to any counsellor at the G Group organisation or to any other person for therapy on the basis that he is a victim of sexual abuse.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharwin & Weldee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9688 of 2011

Ms Sharwin

Applicant

And

Mr Weldee

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Weldee and Ms Sharwin are the parents of the child B (“the child”), who was born in December 2004 and is now seven years of age. The child has lived with the mother since his birth and spent regular time with the father until 30 December 2010. At that point the mother unilaterally suspended his time with the father. She alleged that the child complained to her of sexual abuse by the father.
The child’s time with the father resumed in January 2011 and continued until July 2011, when the mother again unilaterally suspended these arrangements. On 15 December 2011 the Federal Magistrates Court made interim orders that the child spend time with the father, under professional supervision, each Saturday for a short period. Further interim orders made on 15 March 2012 provided that he spend supervised time with the father for up to four hours each Saturday.
In a document entitled “Case Information” the mother set out the orders which she sought as follows:
1.That [B] born … December 2004 (“the child”) live with the Mother [Ms Sharwin] born … 1965 (“the Mother”);
2.The parties have equal shared parental responsibility;
3.The parties have direct day to day parental responsibility of the Child when the Child is in their direct care;
4.Due to safety concerns that the father [Mr Weldee] born … 1960 (“the father”) have no contact with the child;
5.That the father agree to co-sign a new Application and in any further Application for a passport until the Child attains the age of eighteen (18) years of age and failing such agreement that the Registrar of this court consent to a new passport and sign on behalf of the Father;
6.That the mother authorise the Childs places of child care and/or places of education;
7.Any other Orders this Honourable Court deems appropriate.
The father set out the orders which he sought as follows:
1.That the child [B] (DOB … December 2004) live with the mother.
2.That the mother and the father have equal shared parental responsibility for the child’s long-term welfare care and development.
3.That the child spend time with and communicate with the father at all times as may be agreed between the Mother and the Father but failing agreement at least:
a.   each alternate week from after school on Friday to before school on Monday or Tuesday if Monday is a public holiday
b.   in the alternate week from after school Wednesday to before school on Thursday
c.   one half of the Easter, June/July and September/October school holidays with the father to have the first half in even numbered years and the last half in odd numbered years
d.   one half of the Christmas school holidays with the father to have the first half in even numbered years and the last half in odd numbered years
e.   from 2 PM Christmas Eve to 2 PM Christmas Day in even numbered years and from 2 PM Christmas Day to 2 PM Boxing Day in odd numbered years
f.   on the child’s birthday if the child is not spending time with him and unless as otherwise agreed between the parties from 9 AM to 12 noon in odd numbered years and from 3 PM to 7PM in even numbered years
g.   Father’s Day the child will be with the father from 9 AM to 5 PM
h.   Mother’s Day the child will be with the mother from 9 AM to 5 PM
i.    That the father be able to be involved with the child in after-school sports training, football, swimming etc
j.    That the child’s passport be made available in times to be able to go overseas on holiday
k.   By telephone each Tuesday and Thursday at 4:30 PM with the mother to phone the fathers residence or, if there is no reply, the father’s mobile telephone number 0420 607 273 with father to forthwith call back and the father (sic) is to make the child available to take the call and thereafter provide privacy to the child.
4.That neither the mother nor the father are to discuss these proceedings to or in the presence of the child.
5.That neither the mother nor the father are to denigrate the other to or in the presence of the child.
6.That the parties will advise the other immediately should the child require any urgent medical treatment while in their respective care.
7.That each party will keep the other advised of their current address and telephone number and advise the other within 48 hours of any change.
8.That the order for the appointment of the independent children’s lawyer be discharged.
9.That all applications be removed from the pending cases list.
In his final submissions the father indicated that he abandoned his application for orders that the child live with him “because it would be too traumatic”. In my view, the father deserves credit for this decision. He seemed to be prepared to accede to the proposal of the Independent Child’s Lawyer (“the ICL”), who proposed the following orders:
1.That the child [B] (DOB … December 2004) live with the Mother
2.   That the Mother and the Father have equal shared parental responsibility for the child’s long term welfare care and development
3.   That the child spend time with and communicate with the Father at all times as may be agreed between the Mother and the Father but failing agreement at least:
a.    Each alternate week from after school on Friday to before school on Monday or Tuesday if Monday is a public holiday
b.    In the alternate week from after school Wednesday to before school on Thursday
c.    One half of the Easter, June/July and September/October school holidays with the Father to have the first half in even numbered years and the last half in odd numbered years
d.    One of the Christmas School holidays with the Father to have the first half in even numbered years and the last half in odd numbered years
e.    From 2pm Christmas Eve to 2pm Christmas Day in even numbered years and the last half in odd numbered years
f.     On the child’s birthday if the child is not spending time with him and unless as otherwise agreed between the parties from 9am to 12noon in odd numbered years and from 3pm to 7pm in even numbered years
g.    Father’s Day the child will be with the Father from 9am to 5pm
h.    Mother’s Day the child will be with the Mother from 9am to 5pm
i.     By telephone each Tuesday and Thursday at 4:30pm with the Father to phone the Mother’s residence or, if there is no reply, the Mother’s mobile telephone number 0407973701 with the Mother to forthwith call back and the Mother is to make the child available to take the call and thereafter provide privacy to the child
4.   That neither the Mother nor the Father are to discuss these proceedings to or in the presence of the child.
5.   That neither the Mother nor the Father are to denigrate the other to or in the presence of the child
6.   That the parties will advise the other immediately should the child require any urgent medical treatment while in their respective care
7.   That each party will keep the other advised of their current address and telephone number and advise the other within 48 hours of any change.

Approach To These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil, his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)      consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)      consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)      if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c)      consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)      consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)      if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M (at pp76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be 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 have the allegations been made? 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 of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing “unacceptable risk” of sexual abuse of a child.

Background

The father and mother, who are aged 51 and 47 respectively, commenced a relationship in 2000 or 2001. After their final separation in 2003 they maintained a connection which the mother described as “a casual friendship”. Essentially they did not live together during their relationship, although they may have made a brief and unsuccessful attempt at cohabitation.
The father has a daughter, Ms C, who was born in 1993 and is now 19 years old. Apparently there were contested parenting proceedings between the father and Ms C’s mother, which resulted in orders made in 1999 that she live with him.
Ms C was interviewed by the Family Consultant in December 2011 and described her father as “a pretty decent guy”. She described the child as “a loving boy with a very big imagination”. She told the Family Consultant: “He would say things like Daddy is an arsehole isn’t he and laugh about it”.
On 27 October 2005 the father commenced parenting proceedings in the Federal Magistrates Court. On 20 July 2006 final orders were made by consent, which provided that the parties have joint responsibility for long-term decisions in relation to the child’s care, welfare and development and that he live with the mother. The orders set out a graduated regime for the child to spend time with the father, commencing with six hours each Sunday and one weekday afternoon and culminating in alternate weekends and half of school holidays.
According to the mother, “contact…was going reasonably well” until the child’s behaviour changed for the worse when he was approximately four years old. She alleged that, in mid 2010, he began to make statements such as “daddy’s doing it – daddy is controlling me and making me do it” when she asked him the reason for his behaviour. She claimed that the child became increasingly resistant to spending time with the father during 2010 and 2011.
There have been two Domestic Violence Protection Orders taken out against the father in respect of the mother. The first order commenced operation on 3 October 2005 and the second was in force from 11 August 2010 until 10 August 2012. On 22 August 2011 the father was charged with a breach of the second order but no conviction was recorded.
In 2010 the father commenced a relationship with his current partner, Ms D. They began to live together in 2011 and each described to the Family Consultant a committed and happy relationship. Ms D has a daughter, E, who is 13 years old. E spends equal time with each of her parents.
On 28 October 2011 the father unilaterally removed the child from school at 1:25pm. He was returned to the mother later that day pursuant to an order of the Federal Magistrates Court.

The Allegations of Sexual Abuse

The mother made a number of allegations that the child complained to her of sexually inappropriate conduct on the part of the father. In final submissions, however, senior counsel for the mother conceded that the evidence could not support a finding of unacceptable risk that the child would be sexually abused in the care of the father. Accordingly, it is unnecessary that I examine in detail all of the evidence in relation to the child’s alleged complaints. For reasons to which I refer below, I am satisfied independently of this concession that the father did not sexually abuse the child. I am further satisfied that there is no unacceptable risk that the child will be subjected to sexual abuse by the father in the future.
A Magellan report dated 5 March 2012 summarised the investigations and findings of officers of the Queensland Department of Communities as follows:
summary
As detailed above, the department has recorded fourteen Child Concern Reports, one Intake Enquiry and three Child Protection Notifications in relation to the child since December 2010.
The department has conducted two investigation and assessments, in December 2010/January 2011 and in July/August 2011 in response to concerns in relation to the child in his father’s care, include allegations that the child had disclosed sexual abuse perpetrated by the father, and displaying behavioural issues potentially indicative of emotional harm.
The outcome of both investigations and assessments were recorded as Unsubstantial, with the child making no disclosures to Police of (sic) departmental officers and no evidence being found to support the concerns.
Since this time several further Child Concern Reports have been recorded in relation to further disclosures made by the child in relation to sexual abuse. In each instance these concerns have not met the departmental threshold for further investigation.
An updated Magellan report dated 3 August 2012 indicated that no departmental action was taken after a “notifier” reported concerns that the child was placed at risk of sexual abuse when the father changed his pants during a period of supervised time. The mother raised an identical complaint in her affidavit, based on a conversation between herself and the child.
In her affidavit the mother recounted alleged complaints to her by the child of inappropriate conduct on the part of the father during periods of supervised time. These visits took place in the presence of professional supervisors. The child’s alleged complaints to the mother involved inherently bizarre behaviour on the part of the father. For example, the mother alleged that the child told her on 24 March 2012 “Dad put a tablet up my bottom”.
As a further example, the mother deposed that she had the following conversation with the child on 28 April 2012:
[The child] got back out of bed that night and said ‘You have got to hurry up with that court stuff. Dad is getting angry. He said every time I tell you and the police he is going to do it harder and harder.’ I said ‘What is he going to do?’ He replied ‘He is going to put two bits of string then three bits of string. The he is going to put tablets in.’ Then he demonstrated by pulling down his shorts and parting his bottom. He had also done this same action on Saturday. I spoke to him about how I was doing my best to help him but it is out of my hands. I told him that I cannot make the decisions. I just keep believing in you and that you are telling the truth. I spoke to him about it being ok to love his mum and dad. He assured me that he did not like his dad and said to me words to the effect of ‘I don’t like him. He’s horrible.’ I told him I understand why you would feel that way.
In her second report dated 31 August 2012 the Family Consultant, Ms F, commented:
The writer has listened to the audio DVD of the child’s interview by the police and acknowledges that his most recent claims appear to be at the very least unusual and perhaps fantasised…
The mother’s own affidavit made it clear that she discussed the allegations of sexual abuse with the child on multiple occasions and left him in no doubt that she believes that the father has behaved inappropriately toward him. An example of the mother’s apparent reinforcement of the child’s belief that the father sexually abused him appears above in her own account of the events of 28 April 2012.
Another example of the mother’s reinforcement of the child’s belief that the father sexually abused him appears in her account of an alleged conversation on 8 May 2012. She deposed:
[The child] said that he just wanted the court stuff to be over so he could go back to going on a Wednesday and for the weekend. I said to him I was concerned and could not understand that he would not be worried about what has happened. He said he is beginning to stop. I spoke to the child about it and said it was my word against everybody elses and the last time everyone else said it did not happen. He said it is true and I told him that I believe you but I was not there and I didn’t know…
The mother’s affidavit contained several further accounts of similar conversations with the child.
In her oral evidence the mother made statements which clearly demonstrated that she reinforces a belief in the child that he has been sexually abused by the father. She said: “before the Family Report interview I told [the child] that we were going to court to talk about what daddy did.” She said also: “in July 2011 I told the child that we would be going to court to get daddy to stop”.
The mother deposed in her affidavit that she took a photo of the child’s anus on 24 March 2012. She gave this evidence when speaking of a conversation with a police officer: “I saw there was a ring on the outside of the child’s anus like two half-moons (I took a picture)”. In her oral evidence the mother said: “since the disclosures I have photographed the child when there is something concerning”. The Family Consultant reported in August 2012 that the mother showed her photos of the child’s anus, bruises and a burn on his chin.
In her report dated 31 August 2012 the Family Consultant wrote:
46. She informs that she has videos of [the child] making comments that concern her. She will simply say to [the child] ‘tell me that again’ and the child repeats his story. She produced a video of [the child] reportedly saying in March 2012 that his father had a remote and was ‘trying to control him…making him say bad things to his mother and…that it is not me that is doing it. My dad is making me.’ [The child] appeared to be screaming at his mother towards the end of the video. She states that she filmed [the child] ‘to be able to prove what I am saying is true. He is trying to make me out to be a head case and I am not…I am scared of losing [the child]. He has done it before and he can do it again. He has no conscience. He doesn’t care who gets in his way…I can’t trust [Mr Weldee] or his motives.
On the basis that he is a victim of sexual abuse, the mother took the child to an organisation known as “G Group” for counselling. He has been seeing this counsellor since February 2011. In cross-examination by counsel for the ICL the mother agreed “they provide counselling for sexual abuse on the basis that abuse has occurred”. It is apparent that this counsellor also reinforces in the child a belief that the father sexually abused him.
It is thus apparent that an investigation by child protection authorities found the allegations of sexual abuse to be “unsubstantiated” and to warrant no intervention. It is abundantly clear that the mother and the G Group counsellor have reinforced in the child a belief that he has been sexually abused by the father. The more recent allegations involve bizarre acts on the part of the father in a supervised setting.
In all of these circumstances my independent assessment and finding is that the child has not been sexually abused by the father. I find further that there is no unacceptable risk of sexual abuse by the father, in the event that the child spends unsupervised time with him in the future.

The Evidence and Witnesses

The mother relied upon a 661 paragraph affidavit, to which she annexed a plethora of material including large slabs of her personal diary. She also annexed material which was clearly of no probitive value whatsoever, including a document which purported to be a statement from the father’s ex-partner and mother of his daughter Ms C. This affidavit and its annexures was of some three centimetres in thickness.
The father, who was unrepresented, filed no affidavits but verified on his oath the accuracy of two drafts. Both of these documents were dated November 2011.
A Family Consultant, Ms F, prepared reports dated 5 December 2011 and 31 August 2012. Ms F gave oral evidence in response to questions by the legal representatives of the mother and the ICL and by the father.
The ICL provided a report by Dr H, a psychiatrist, who assessed each of the parties. Dr H was not required for cross-examination. The ICL also provided an affidavit by Ms I, who has supervised some of the child’s time with the father since December 2011. Ms I was not required for cross-examination. I also had the assistance of two Magellan reports dated 5 March 2012 and 3 August 2012.

The Best Interests of the child: section 60CC Considerations

Section 60CC(2): The Primary Considerations

As noted, the mother abandoned her contention that the child would be at unacceptable risk of sexual abuse if he spends time with the father. I have considered all of the relevant evidence and found that the father did not sexually abuse the child. I have also found that there is no unacceptable risk that the child will be sexually abused by the father.
It seems to me that the mother has subjected the child to psychological damage by convincing him that he has been harmed by the father. There is reason for real concern about the statements to which I have referred above, which could only reinforce a belief in the child that his father has sexually abused and otherwise harmed him. She has taken photographs of the child and recorded him making complaints about the father’s alleged treatment of him. In my view it is highly concerning that the child “appeared to be screaming at his mother toward the end of the video” made in March 2012, as described by the Family Consultant.
It is noteworthy that the Family Consultant in her second report opined:
87. The report offers the view that either the child and/or one or both parents are psychologically unstable; his mother is abusing him psychologically or his father is sexually abusing him. The impact on the child – whatever is occurring appears to be serious.
Ultimately the mother’s own case was that the father does not present an unacceptable risk of sexual abuse to the child.
On behalf of the mother, it was submitted that the child “currently has a meaningful relationship with each parent” and that “curtailment of time will not affect that”. In fact, the mother’s proposal was for orders that the child spend no time whatsoever with the father. I am challenged to understand how any current “meaningful relationship” could survive if there is no contact whatsoever between them for an undefined period into the future.
A major tension in these proceedings is the need to balance a continuation of a meaningful relationship between the child and the father and the necessity to safeguard his psychological and emotional stability. The opinions and assessments of Dr H provide insight into the dynamics of the relationship between the father and the mother and the impact thereof on the child.
In relation to the father, Dr H opined:
[Mr Weldee] has an autocratic style of interpersonal communication and does cope with authority well. He has some narcissistic traits of entitlement and high self opinion as well as projection of blame onto others. His personality has not limited his friendship network, occupational capacity and thus he remains normally functioning with no personality disorder but traits to his personality style.
I assume that Dr H intended to express the opinion that the father does not cope well with authority.
In relation to the mother, Dr H opined:
There is a pervasive history of dependency, co-dependency, obsessional traits and narcissism. [Ms Sharwin] describes little capacity for warmth or love in her relationships which she reports using to her advantage. [Ms Sharwin] has been in the victim role through most of her relationships and is now single with limited support network and family network. She has limited work relationships. She has little empathy for the father of their child or their relationship. She uses immature unconscious coping strategies such as projecting blame, using unmodified emotional reactivity; idealisation and devaluation. She is controlling of herself but others as well with her diet restrictions and use of alternate medicine as an example.
A striking example of the mother’s narcissistic traits emerged during her oral evidence, when she was asked about her allegations that the father sexually abused the child. She said:
I believe he is putting on a front, that he is sexually abusing the child as a means of hurting me. I believe that he has used the child to punish me, to brainwash and bribe the child.
In my view, this extraordinary proposition clearly demonstrates the mother’s self-focus.
In her second report the Family Consultant commented:
63. The parents have no contact whatsoever with each other in spite of completing a parenting orders program. The co-parenting relationship is characterised by what is assessed as being a high level of anxiety on the part of [Ms Sharwin] and anger on the part of [Mr Weldee]. It is the writer’s view that this couple will be unable to co-parent their child.

The Family Consultant opined further:
106. If one was to set aside the allegations of sexual abuse, it would appear that this child’s context features parents with diagnosed narcissistic tendencies; an inability to co-parent; [Ms Sharwin’s] high level of anxiety and fear of [Mr Weldee] and [Mr Weldee’s] history of what appears to be less than adequate parenting of his daughter and entrenched conflict with her mother…
In my view, there are several reasons why the opinions of the Family Consultant should be treated with some caution. At the outset of her oral evidence she said:
I am not one who assesses personality. I found the father to be fairly confident and perhaps a little over-confident as to the outcome of these proceedings.
The father said in his oral evidence, however:
I am preparing to lose my son until he is 18 and a man.
This comment did not suggest to me an over-confidence in the outcome of the proceedings on the part of the father. Similarly, his abandonment of a residence application, in the interests of the child, did not indicate “over-confidence in the outcome of the proceedings”.
In her second report the Family Consultant referred to subpoenaed documents from the Department of Communities in relation to the father’s ex-wife, his daughter Ms C and her half-brother J. She wrote:
In perusing the subpoenaed documents from the Department of Communities, the Report notes that in 2003, after [Ms C] had been in [Mr. Weldee’s] care for approximately four years, an incident occurred between [Ms C’s] mother and [Mr. Weldee] at the child’s basketball practice when [Mr. Weldee] allegedly yelled at both [Ms C] and her mother. It was also mentioned by the informer that [Ms C] was a sad child who is regularly left alone in the early mornings.
The Report notes that when [Mr. Weldee] was interviewed, he acknowledged that an argument had occurred and that [Ms C] had been present, however believed the mother to have been responsible. He also acknowledged that there were times when [Ms C] was alone in the mornings before the child left for school. He also stated that he was aware that the child wanted to live with her mother however he had no intention of allowing that to occur. He also indicated that he may have spoken negatively about her mother in [Ms C’s] presence.
The written material also indicates that [Ms C] ‘felt a level of concern when father speaks to her about her mother and perceived mental health issues,’ and that this was causing emotional harm for the child. Others might conclude from these statements that [Mr. Weldee] had a propensity to denigrate [Ms C’s] mother to her. The documents may offer support to [Ms Sharwin’s] claims that [Mr. Weldee] denigrates her to their son.
In the Police records it is noted that Mr J DOB …/91 complained of being sexually abused in 1998 when he would have been approximately seven years of age when he described Mr. Weldee as having pulled the child’s penis and placed one of his fingers inside his bottom on a number of occasions when the child visited him on access. Because the alleged offence had occurred eighteen moths earlier, it was not possible to have any medical evidence in support of the child’s allegation.
The report notes a prior report in 1997 when [Mr. Weldee] allegedly molested his daughter Ms C. [The child] did not disclose that abuse had occurred when interviewed by the Police.
The report notes another alleged incident created in 1996 when it was alleged that [Mr. Weldee] had placed his fingers in [Ms C’s] vagina. Medical examination at the time confirmed that it was consistent with the described offence. There were Family Court proceedings happening at the time and [Mr. Weldee’s] time with [Ms C] was not discontinued.
On the face of her report, the Family Consultant discussed with the father only the allegations that he sexually abused Mr J and “fail[ed] to have an ongoing parenting relationship with his daughter’s mother”. She reported:
He acknowledges failing to have an ongoing co-parenting relationship with his daughter’s mother. “I told her (his daughter) that she could love her mother, but don’t expect me to have anything to do with her.” He is aware that [Ms K] is studying to be a nurse. “They knocked her back to be in the Police Force”.
The material contained in these subpoenaed records was entirely untested and the father was afforded by the Family Consultant only a limited opportunity to comment on these allegations. Nonetheless, it seems that she was prepared to rely on these untested allegations in reaching conclusions adverse to the father. The Family Consultant could have had no knowledge of the role played by Ms C’s mother in that child’s circumstances. She gave no indication that she knew of the reasons why the court made a residence order in favour of the father.
Despite these limitations, the Family Consultant opined:
It is the Report’s position that there are some risks and uncertainties in relation to [Mr. Weldee’s] history exemplified by apparent indicators that historically, others struggle to be in relationship with him. The subpoenaed material indicates that he failed to provide his daughter with a suitable level of care, leaving her at home alone and required her to self manage at an age when she was developmentally ill equipped to do so. The Report notes too, his self acknowledged statement that he fails to co-parent cooperatively and engaged in conflict with his daughter’s mother in her presence at a sporting activity. For these reasons, the Report is challenged in accepting that he would behave collaboratively and be adequately child focused in genuinely endorsing the child’s healthy attachment to his mother. [Ms Sharwin] claims that he continues to denigrate her regarding their son. Regardless as to the accuracy of these comments, it is the child’s interpretation that the parents do not like each other.
In her oral evidence the Family Consultant expressed this strongly worded opinion adverse to the father:
Comments from the Department of Child Safety material indicates an absolute failure to co-parent, decades of abdication of responsibility.
Despite my reservations about the opinions of the Family Consultant, I have no reason to doubt that she accurately reported her conversations with and observations of the parents, the child and other persons. Accordingly, I give weight to these aspects of her report and oral evidence but treat her opinions with some reservation.

Section 60CC(3): The Additional Considerations

The child is presently seven years old and was aged six when first interviewed by the Family Consultant. In December 2011 she reported:
112. He has his own bed at his mother’s home and sleeps with his father when he spends time with him ‘because that is the rule. My dad has his brother and his dad and my grandfather. My dad is cruel and my grandpa and his brother are very nice. He is just mean and cruel to me.’ Caleb does not know why. ‘Being mean and cruel means being mad and everything’.
113.     If he is naughty at his father’s house his father ‘spanks me on the butt. His mother just holds me or tries to stop me.’
114.    The meanest thing is that his father is ‘mean and cruel whenever I see him. He is mean and cruel to my mum. He is mean and rude – and terrifying.’ When asked what terrifying meant, he said ‘Everyone knows what terrifying is. It is being annoying and bugging’.”
116. He went on to say that his father ‘stole me from school and one day last year’. Further that he once ‘took me because I was on the driveway scootering around and he grabbed me and my mum was running to get me and he drove backwards and then he tried to mow my mum over’ and said him (B) ‘shut the door to bang her on the ground’. He would not do it. ‘Why would I she is my Mum’. He adds that he attempted to jump out of the car and go with his mother.”
120. If the judge said he had to see his father he would say ‘Oh God No.’ If the judge said he did not have to see his father he would go ‘weeee’ and put his arms into the air.
121.     He tells me that he is never scared, however then stated that he feels scared when he goes to his father’s home. He would not like to see his father ‘even to-day’ however he likes to see [Ms D]. ‘Tell her to close her eyes when you come into the room. I will hide under the desk and jump out and say boo. If [Mr Weldee] comes with her, call the security please.’ He had not always called his father [Mr Weldee].”
124. If he could fix things he would want his father to die and his mother to live. The thing that makes him the happiest is his mother. The thing that makes him saddest is his father. The best thing that has ever happened to him is his mother. The worst thing is his father.”
Having observed the child’s interaction with the father and Ms D, the Family Consultant concluded: “There is an incongruence between what the child says and his behaviour towards Mr Weldee.” She made these observations of their interaction:
173. He initially stated to the writer that he did not want to see his father on the day of the interviews, referred to him as [Mr Weldee] and hid under the writer’s bookshelf. He later accepted that he would see his father along with [Ms D]. He was observed to initially be guarded, however later relaxed as he played with [Ms D] and his father and reverted to call him Dad rather than [Mr Weldee]. He was heard to tell his father that he missed him when bidding him farewell at the end of the observation. When interviewed briefly following the observation, he again stated to the writer that he did not want to spend time with his father. His initial guarded behaviour towards his father could be due to the child either being abused by Mr Weldee or to his ongoing assessments and therapy in which his perceptions of his father may be shaped by discussing him in negative terms.
The Family Consultant summarised her observations of the interaction between the child and the mother in December 2011 as follows:
When interviewed with his mother, [Ms Sharwin] played with the child in a loving and age appropriately manner. She was observed to be more subdued in her play with the child than [Mr Weldee] and [Ms D]. On the basis of the observation I assess that the child is comfortable in his relationship with his mother.
Ms I annexed to her affidavit sworn on 3 March 2012 a report concerning her supervision of the child’s time with the father. She wrote, inter alia:
[Mr Weldee] and [the child] get on very well together…
He is also a little boy who lives in his own world. If he is told something he gets an idea in his head about it and nothing you say can change his mind as to what the truth really is…
[Mr Weldee’s] partner came one day and she seems to get on very well with the child…
When [the child] is at [Mr Weldee’s] home he is a very happy and contented little boy. He runs around and helps [Mr Weldee] with odd jobs and things that you do around a home. He loves going there because there are lots of different things for him to do…
In August 2012 the Family Consultant reported:
65. He approached the writer by asking what he needed to talk about. The writer responded by saying what he felt he would like to talk about. He then stated “I talked to the Police for a while about what my dad has been doing and how this all started. Are you sure you want to know? The writer responded yes.”
67.      When he is with his mother, “we do a lot of loving stuff because I love her lots and lots”.
68.      His favourite thing about his father is “nothing really. I don’t like him at all”. When the writer pointed out that he seemed to like him when they were drawing his cubby on the whiteboard he said that he liked him when he was in the room “because I was thinking about happy stuff.”
71.      He is not sure what the worst thing his father has said is but believes that “he has said really bad things about her”. He believes his father wants his mother to die.
72.      He would not want to go back to having weekends with his father “because I don’t like him.” He likes having “nearly the whole day on a Saturday.” He would not want to see his father if Ms L (the supervisor) was not there.
73.       He feels worried nearly all the time, “because I just want to be with my Mum.” He worries that she might get hurt. He never worries about his father. “I don’t give a damn about him.”
74.      He feels sad when he is not with his mother. He feels scared when he is with his father “mainly all the time.” He could not recall the scariest thing his father has ever done.
75.      If the Judge said he should spend time with his father he would “get a gun and shoot the Judge in the face.” He would do the same thing to the Judge if he said he would have to live with his father. If the Judge said he was never to see his father he would be happy. He would “miss his cubby and [Ms D].” In spite of this he states “I would never want to see my Dad”.
The Family Consultant made these observations of the interaction between the child and the father in August 2012:
38. When observed with his father, [the child] initially attempted to hide in another office, apparently in an endeavour to encourage his father to find him. He then entered the play area and immediately said “Where is [Ms D]?” [Mr Weldee] responded “She couldn’t come son”.
39.      There is a whiteboard in the room and [Mr. Weldee] initiated conversation with the child about the cubby they are building together. He drew a plan of the cubby and asked the child if he wanted a verandah. Father and son discussed their plans for the cubby together and drew these on the white board.
40.       [The child] said quite close to this father and assisted him in drawing the plans for the cubby. They continued to talk to each other about posts, balconies and other details concerning the verandah. When he told [Mr. Weldee] what height he wanted the verandah to be [Mr. Weldee] responded “Well that means I’ve got to put a post here. I will need to put one up there to hold the roof up. It is going to cost me a fortune. Have you got any money?” [The child] placed his hand in his father’s as he said “If I give you ten dollars I will let you have a key to come into the bedroom up stairs through the trap door.”
41.      [The child] engaged well with his father and appeared to be relaxed and comfortable in his father’s care.
Once again, there was a clear “incongruence” between the child’s comments about the father and their positive interaction. The warmth which the child displayed toward the father was consistent with the interactions observed by Ms I. It would thus appear that the child enjoys a positive experience with the father, when free of the influence of the mother.
The Family Consultant summarised her observations of the interaction between the child and the mother in August 2012 as follows:
When observed with his mother, [Ms Sharwin] and the child played appropriately together. [Ms Sharwin] appeared to be fun-like and appropriate and the child is assessed as being comfortable in her care. The report also assesses that the child is primarily attached to his mother.
There are indications that the mother has attempted to exclude the father from the child’s life since his birth. For example, she arranged for a social worker to ban the father from the hospital when the child was born. In cross-examination she offered the unconvincing excuse: “I had already organised other people to be there”. The mother told the Family Consultant that the father became aware of the child’s birth only when informed by her sisters.
A further example of this tendency on the part of the mother is her taking the child to Country M to visit her family without the father’s consent. She allowed him no input into the selection of the child’s Christian or surnames. As noted, she unilaterally suspended the child’s time with the father in December 2010 to July 2011.
The changes proposed by the mother would mean that the child would have no contact whatsoever with the father until he is of an age and level of maturity to seek him out irrespective of her wishes. The child would thus be deprived of a parent who has made strenuous efforts to maintain a relationship with him and with whom the mother admitted “I think the child has enjoyed plenty of his time”.
Ultimately, the father and ICL proposed a change whereby the child would commence spending alternate weekends, each other Wednesday night, half of school holidays and special occasions with him. Presently the child spends four hours per week with the father under supervision. These proposed changes would allow the child a continuing relationship with the father and the opportunity to enjoy time with him and Ms D.
In August 2012 the Family Consultant opined:
108. Given that the child’s difficulties appear to be so entrenched and pervasive, the Report is compelled to offer that it is not possible to envisage regular ongoing father/son contact in the foreseeable future. This is for the purpose of ameliorating both [Ms Sharwin’s] high level of anxiety and the impost of the ongoing litigation and the way in which these undermine her capacity to be emotionally available to parent the child and respond to his special needs under the guidance of the child’s treatment professionals.
In her oral evidence the Family Consultant rejected the ICL’s proposal for the following reasons: “There are too many risk factors. I don’t believe the mother would cope with constant negotiations and interactions with the father”. When asked specifically to comment on the ICL’s proposal the Family Consultant said: “I don’t believe there will be shared parental responses to the child. [The child] has real issues that need to be acknowledged, he needs constant parenting from a parent who is not under threat. He needs a confident, competent, systematic parent. He needs to learn to regulate his own behaviours and for that he needs a regulator.”
I have referred above to my concerns as to the reliability of some of the evidence of the Family Consultant. In summary, it seems to me that she accepted the mother’s history of the parties’ relationship and dealings with their child in preference to that of the father. She “assumed the correctness of what the father appeared to say in the historical material”, some of which could only be construed as damaging to him. She maintained that this material “does not alter my opinions” but I can think of no other reason for its inclusion in her report. One might wonder why she referred to this material at all if it played no part in the formulation of her opinions and recommendations.
It seems to me that the Family Consultant allocated disproportionate blame as between the mother and father for the unfortunate situation which the child currently finds himself. I am inclined to the view that the mother acted with intent to undermine or curtail the father/child relationship.
For these reasons, I do not accept the evidence of the Family Consultant to the effect that there is no benefit to the child from the arrangement proposed by the ICL and the father. Rather, it seems to me that the child would benefit from relief from the mother’s pressure for him to believe that the father is a danger to him. In my view he would also benefit from an unimpeded relationship with a parent who provides him with enjoyable experiences and a counterbalance to the mother’s influence on him.
Counsel for the ICL explored with the mother her reaction to a finding that the father poses no unacceptable risk to the child and an order for unsupervised time. She said: “I can’t believe there is no element of risk. I would much prefer supervision. I guess I would be given no choice but to comply with orders” In my view, a “preference” for supervision falls short of an inability to cope with unsupervised time.
It is clear that the parties have displayed a lamentable attitude to each other and thus have fallen short of fulfilling the responsibilities and duties of parenthood. For example, the father admitted that he has used the email address “bitch” for the mother. In his oral evidence he expressed a firm view that the mother suffers from a mental illness.

For her part, the mother was prepared to attribute no appropriate motivation to the father’s quest for time and a relationship with the child. I have referred above to her extraordinary evidence that he sexually abused the child “as a means of hurting” her. She went so far as to impute a sinister motive to the father’s current project of building a cubby house with the child at his home. In her oral evidence she said “[his] motive is to give them a connection, I don’t think it is just a normal dad activity”.
It seems that a family violence order made against the father for the protection of the mother expired on 10 August 2012. The evidence did not address with any particularity the circumstances which led to the making of this and the previous order.

The Presumption of Equal Shared Parental Responsibility

As these proceedings will result in the making of parenting orders, I am required to apply the presumption that it would be in the child’s best interests for the parties to have equal shared parental responsibility. I have found that there was no abuse of the child by the father but there has been psychological mistreatment of him by the mother. In my view, the evidence falls short of establishing that the father has engaged in family violence, despite the mother’s professed fears of him.
The issue is thus whether it is in the child’s best interests for the parties to have equal shared parental responsibility. It seems to me that their lack of respect for each other, mutual hostility and poor communication effectively make such an order a practical impossibility.
There thus arises a question as to which party should have sole parental responsibility and what, if any, conditions should attach to such an order. The mother is the unchallenged resident parent, following the father’s concession that a change in primary care would prove too traumatic an experience for the child. It thus follows that he will live mostly in the care of the mother and she should therefore have sole parental responsibility. In my view she should, however, inform the father of any impending major long term decisions in relation to the child and allow him an opportunity to express his views.

Conclusion

As there will be no order for equal shared parental responsibility, I am not required to consider whether it was in the child’s best interests, and reasonably practicable, for him to spend equal or substantial and significant time with each of his mother and father. I am able to proceed directly to a determination of what orders are in the best interests of the child.
As indicated above, I consider that the father poses no risk to the child’s physical or emotional well-being. I am extremely concerned at the mother’s psychological mistreatment of the child and her attempts to curtail his relationship with the father. In my view, the child must be relieved from the pressure to which the mother subjects him and allowed a proper opportunity for a meaningful relationship with his father.
It seems to me that there must be an end to the child’s involvement with the G Group counsellor. It would be of assistance if the ICL were to recommend an appropriately qualified therapist to address the damage done to the child by the instillation of a belief that he has been harmed by the father and to assist him to move comfortably into his care, despite the mother’s opposition to their relationship.
In essence, I will make orders in accordance with the proposal of the ICL. I considered delaying the introduction of unsupervised time until the first school term of 2013 as no party suggested any other changeover point. On reflection, however, I determined that unsupervised time should commence immediately with a changeover point to be nominated by the ICL in default of agreement by the parties. I reach that conclusion because the child’s relationship with the father has been damaged already and in order to limit the mother’s opportunity to reinforce a view that it is necessary for a supervisor to be present to ensure his safety.
The mother sought orders to bring about the issue of a new passport for the child. The father was prepared to consent to this part of the mother’s application, on condition that he too is able to travel overseas with the child. I can see no reason why the child should travel overseas only in the company of the mother.
I would suggest to the father that he ensures that his partner Ms D is present at all times in the initial stages of the child’s unsupervised time with him. A witness would minimise the mother’s opportunity to make fresh allegations and the child would most likely feel more comfortable if Ms D and her daughter participate in the first few weekends.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 December 2012.

Associate:

Date: 20 December 2012

[2012] FamCA 1081

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