Shrine and Murphy

FAMILY COURT OF AUSTRALIA

SHRINE & MURPHY

[2011] FamCA 65

FAMILY LAW – CHILDREN – allegation of sexual abuse – question of unacceptable risk – mother coaching child – whether to make a negative finding – change of primary parent with recommendation from Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA, 65DAA

MRR v GR [2010] HCA 4
Napier & Hepburn (2006) FLC 93-303

APPLICANT:

Mr Shrine

RESPONDENT:

Ms Murphy

INDEPENDENT CHILDREN’S LAWYER:

Mrs Cope

FILE NUMBER:

CSC

626

2009

DATE DELIVERED:

16 February 2011

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns & Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

20, 21 & 22 September, 5 November 2010 and 27 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

Gayler Cleland

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Benson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cope Family Law

Orders

All previous parenting orders in respect of the child M born … January 2003 (“the child”) are discharged.

Parental Responsibility

The father will have sole parental responsibility for the child.
In amplification of order 2 above, the following provisions apply:-
(a)The father will consult with the mother about major long term issues and advise her of decisions made.
(b)Neither parent will remove the child from V State School or any local State High School (when the child moves on to High School) without the written agreement of the other parent or court order.
(c)Neither parent will relocate the child’s home away from Southern Cairns (defined as from White-Rock to Gordonvale area) without the written agreement of the other parent or Court order.
(d)Neither parent will enrol the child in any extra curricular activity, or out of hours school based activity which will impact on the other parent’s time, without the written agreement of that other parent and otherwise each parent will keep the other informed of any activities in which they enrol the child.
(e)The father is required to keep the mother fully informed of any treatment for or consultations attended by the child in sufficient time to allow the mother to attend those appointments.

Living Arrangements

The child will live with the father.
The child will spend time with mother as follows:-
(a)From 9.00 am to 5.00 pm on each of the Saturdays 19 & 26 February, 5 & 12 March 2011.
(b)From 9.00 am Saturday to 5.00 pm Sunday on the weekends of 26 March and 9 April 2011 and from 9.00 am Thursday 21 April to 5.00 pm on Easter Saturday 23 April 2011.
(c)Thereafter and during school terms:-
i.from after school Friday until the commencement of school Monday each alternative weekend and where either the Friday or Monday is a public holiday or pupil free day the child will spend an additional twenty four (24) hours in the mother’s care;
ii.if the child is primarily living with the mother in the school holiday week immediately prior to the start of term, the alternate weekend shall start on the second Friday of the term; and
iii.if the child is primarily with the father for the school holiday week immediately prior to the start of school term, the alternate weekend shall commence the first Friday of the term.
(d)From the commencement of the second mid term holiday in 2011 and thereafter, for one half of each mid term school holiday being:-
i.with the father in the first half in even numbered years and with the mother in the first half in odd numbered years;
ii.mid-term school holidays will commence on the last day of the school term and end on the first day school resumes of the following term
(e)As for Christmas/New Year school holidays, as follows:-
i.from 2.00 pm on Christmas Day to 2.00 pm on 1 January 2012 then the second half of that remaining school holiday (with the child to be returned at 5.00 pm, two days before school commences; and in the same form each alternate year afterwards.
ii.from after school on the last day of school term 2012 until 2.00pm on Christmas Day. Then the first half of the remaining school holiday period calculated from and commencing at 2.00 pm on 1 January 2013; and in the same form each alternate year afterwards.
The child will spend the following times with the mother, if she is otherwise living with the father:-
(a)from 3.00 pm until 7.00 pm on the child’s birthday;
(b)on the mother’s birthday from 9.00 am until 7.00 pm if not a school day and from after school to 7.00 pm if a school day.
In the event that the child is otherwise living with the father on the weekend of Mother’s Day, then notwithstanding any other orders, such time shall end and the child will otherwise spend from 5.00 pm Saturday before Mother’s Day to the commencement of school Monday (or Tuesday if the Monday is a pupil free day) with the mother.
In the event that the child is living with the mother on the weekend of Father’s Day then notwithstanding any other orders such time shall end and the child will otherwise spend from 5.00 pm Saturday before Father’s Day to the commencement of school Monday (or Tuesday if the Monday is a pupil free day) with the father.
The child spend the following times with the father, if she is otherwise living with the mother:-
(a)from 3.00 pm until 7.00 pm on the child’s birthday;
(b)on the father’s birthday from 9.00 am until 7.00 pm if not a school day and after school to 7.00 pm if a school day.
Unless otherwise agreed, the parents are to utilise email and text messaging for the purpose of communicating about issues regarding the child.
On non-school days, changeovers will take pace at McDonalds at V.
Such other or alternate times as is agreed between the parties.

Restraints

The parents be restrained and an injunction issue restraining the parents from talking to the child or allowing third persons to talk to the child about the allegations of abuse.
Both parents be and are restrained from denigrating the other parent to the child or within hearing of the child.

Counselling and courses

Both parents will within fourteen (14) days from the date of this order, sign all such documents and do all such acts and things as are necessary to enroll the child in counselling at Centacare with such counselling to assist the child with the transition between households and to include a course of protective behaviours and such other issues as the child’s counsellor deems appropriate.
Leave is granted to the parties and the parties are required to provide copies of all family reports, orders and reasons for decision to the child’s counsellor, general practitioner or other health care professional recommended by the child’s general practitioner.
Leave is granted to the mother to provide copies of family reports, orders and these reasons to any qualified counsellor she sees for therapeutic purposes, in the event that the mother chooses to undertake counselling.
Each of the parents will attend and complete a Parenting Orders Program within twelve (12) months from the date of this order at the Family Relationships Centre with a particular focus on developing appropriate and positive methods of communicating about their child.

General Orders

Each parent will keep the other advised of their home address, email address, landline and mobile telephone numbers and shall advise each other of any change forthwith upon that change.
As and from term two 2011, the mother and the father are both entitled to attend at parent/teacher meetings, school concerts, shows, sports days, all ceremonies and other school events and functions.
The father will authorise the child’s school to provide to both parents copies of the child’s school reports, newsletters, and similar documents, and that this order shall constitute the parent’s authority for same.
Each parent will provide to the other parent no less than fourteen (14) days written notice of any intended interstate travel by the child and will provide the other parent with details of any proposed departure and return dates for the child.
The Independent Children’s Lawyer, with the assistance of a Family Consultant, will explain these Orders to the child within seven (7) days of the date of this order.
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 court orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 626 of 2009

MR SHRINE

Applicant

And

MS MURPHY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is a case where there are allegations that a child has been sexually abused by her father. As a consequence, the child’s mother believes that her daughter should spend no time with her father but, pragmatically, says that any time with him should be strictly supervised. The father claims that the allegations are simply false and arise out of the mother’s desire (and through his eyes - a malicious desire) to completely exclude him from the life of his daughter. He believes that the mother will do and say whatever it takes to achieve this outcome. The relationship between these parents is coloured by distrust, dislike, a lack of respect and at times contempt and hatred.
In evaluating the evidence in the light of the legal principles, I have reflected on what the law and family courts can and cannot accomplish. Family law is not a panacea for the complex problems that confront some families and damage children; judges do not have answers to everything!
For some matters, there are no magic solutions; simplistic or black and white answers are not always appropriate but they are sometimes the only available solution. Difficulties in parenting children when relationships break down need parents and families to find solutions in a thoughtful and child-focused way. In the absence of fine parenting, the parties and the children are left with the law, which with all its good intentions and great learning, is and remains a blunt instrument.
Ms Murphy (“the mother”) and Mr Shrine (“the father”) have one child, M (“the child”), who is aged eight.
The mother believes that the father sexually abused the child in July/August 2007 and at other times prior to that date. She claims that she is concerned for the child’s safety and wants the child’s time with the father significantly circumscribed, and at least properly supervised. She does not respect or trust the father; she does not believe what he says to her. The mother believes that if the child is left in the father’s care, his alleged abuse of the child will continue.
The father denies that he sexually abused the child as alleged or at all. He asserts that the mother has either made false statements or misrepresented innocent or innocuous statements or events and has excluded him from the child’s life. His view is that unless the child lives with him she will not have a relationship with him and the child will create in her mind a false memory of being sexually abused.
At the conclusion of the evidence counsel for the Independent Children’s Lawyer submitted that the child should live primarily with the father and consequently her view was that the evidence did not establish any sexual abuse by the father, nor was the child at an unacceptable risk of abuse in the unsupervised care of the father.
This type of case fits into one of the most difficult categories in the family law context as it brings into sharp focus the two pillars of the legislative framework about parenting. That is, on the one hand, the benefit to a child of a relationship with both parents and on the other hand, the need to protect a child from abuse, neglect and/or violence.
This matter was heard under the Magellan protocols adopted by the Family Court.

THE ISSUES

The issues are:-
(a)the factual background to the parenting and allegations made in these proceedings;
(b)having determined the facts, whether the child is at an unacceptable risk of abuse in the care of the father;
(c)if the child is at an unacceptable risk of abuse in the unsupervised care of the father then, what time, if any, should the child spend with the father and if so, what level of supervision should be put in place? In addition, what communication, if any, should take place between the father and the child;
(d)whether the mother should have sole parental responsibility for the child;
(e)if the court determines that there is no unacceptable risk of abuse of the child in the unsupervised care of the father then the question is where the child should live (the father seeks that the child live primarily with him and have regular time with the mother), whilst the mother says that she will consent to the father having regular time with the child but strongly believes that such time should be supervised;
(f)if that is the case and the child remains in the mother’s care what impact would the child having unsupervised with the father have on the mother in terms of her parenting? Would it work?
(g)what time and in what manner should the child spend with each of the parties and how should the child and the parents communicate?
(h)who should have parental responsibility or should there be equal shared parental responsibility?
In these proceedings the mother was unrepresented. This provided significant difficulties for her and I was conscious of that circumstance throughout the hearing and I endeavoured to make the processes and the substance of the proceedings as clear as possible. The mother’s father sat with her and assisted her during the course of the proceedings.

BACKGROUND

At commencement of the hearing the mother was aged 37 years and the father was 28 years. In early 2002 the parties commenced living in a de facto relationship and the child was born January of the following year.
In April 2003 the parties married and they separated in May/June 2006. There seems to be an issue in relation to the date of commencement of cohabitation and the date of separation, although the differences are not significant and as such are not a relevant consideration in these proceedings.
Following separation in mid 2006 the child spent time with the father each alternate weekend, although there is an issue as to the regularity of that time. That time was unsupervised. This arrangement continued until early August 2007.
In her notice of child abuse of family violence filed 9 November 2009 the mother asserts:-
1.In June 2004                The father interfered or sexually abused the child.
2.In September 2004     The father interfered or sexually abused the child.
3.In July/August 2004    The father attempted to engage in improper behaviour with an eight year old female whilst holidaying in Y.
4.In July/August 2007    The father sexually abused the child.
In terms of those specific allegations the mother relies upon all of her evidence including an affidavit of the child’s maternal grandmother. This affidavit, filed 4 November 2009, provides in paragraphs 3, 4, 5 and 6 the following:-
3.   [In about June 2004] I pulled up in the driveway of [the child’s] and [the father’s] unit. When I pulled up I could hear [the child] crying. I called out but nobody answered. It appeared that nobody was at home.
4.   I entered through the door to the unit that was not locked. As I entered [the father] emerged fiddling with the front of his pants as if he was trying to either zip his pants up and/or push an erection down. I distinctly remember his face going as red as a berry. I walked straight by to where [the child] was. She was lying on the bed with no diaper on, crying and clearly distressed.
5.   [The father] was now standing behind me. I immediately dressed [the child] and told him that I was taking [the child] home with me as I was to try to sooth her.
6.   My sister, who lived in another street but backed onto the duplex unit where [the mother] and [the father] lived, said she could often hear [the child] crying when [the mother] was not there. It distressed her so much that she informed me.
In terms of the June 2004 allegation, the September 2004 allegation, the July/August 2004 alleged incident and the August 2007 allegation the mother set out in paragraphs 23, 24 and 25 and paragraphs 34, 35, 36 and 37 of her affidavit filed 4 November 2009, the following:-
23In June 2004, my mother turned up at our unit when I was not there. She yelled out, as she was walking up the driveway, that she could hear [the child] crying. She came straight in the front door as she knew there was something wrong with [the child]. [The father] emerged from the main bedroom pulling his pants up. My mother asked “What is going on? Where is Sweetie”. [The father] answered “in the room”. My mum went into the bedroom and found that [the child] was crying and upset and had no clothing on. My mother dressed her and took her with her over to her house. My mother rang me to let me know that [the child] was with her. [The father], however, had rang me in the interim saying that my mother had taken [the child] without his knowledge. My mother expressed to me that she was very worried about [the child] as she was unsure as to what she had walked in on.
24In September 2004, I remember coming home on a Saturday. [The child] was in [the father’s] care. The house was extremely dirty. I came home and noticed that [the child] needed changing as she had a very wet nappy. When I changed her nappy, I noticed that her vagina had a very distinct round rub mark. I asked [the father] what was this. He replied he did not know. At the time I was concerned and I informed him that I was taking her to [the] Medical Centre. [The father] just looked at me blankly and walked away. The red mark went away over approximately three (3) days.
25In July/August 2004, [the father], [the child] and I went for a holiday down to [Y] to my girlfriend [Ms J]. I have known [Ms J] for 19 years. While we were there, [Ms J] asked her daughter approximately eight (8) years of age to go for a shower. [Ms J] then walked down the hall way and found [the father] in the bathroom with [Ms J’s daughter] who was naked. [Ms J] then removed [the father] and closed the bathroom door. From that time on, [Ms J] would not let [the father] be left alone in the house with the girls.
34   On 5 August 2007, I arrived home from the Cairns Base Hospital from feeding my two (2) month premature baby boy [N]. I arrived home at approximately 9.30pm. [The child] had arrived home from her father’s approximately 15 minutes earlier. [The father] had left [the child] with [Mr H]. [The child] had arrived home dirty and hungry. [The child] at this stage was four (4) years of age and [Mr H] told [the child] to hop in the shower and get cleaned up. [The child] then said to [Mr H] “I have a surprise. I touched daddy’s doodle. I arrived home very soon after this. [The child], when she heard that I had gotten home, came to me and stated “Guess what mummy, I have a surprise for you”. I asked “What is that darling” as I was reaching to give her a hug and cuddle. She said “I touched Daddy’s doodle”. [Mr H] then said to me “Isn’t that funny mummy” as he had had the same conversation with [the child] earlier. I then asked [the child] “Well did daddy touch you”. [The child] then answered very happily “Yes it tickled but it hurt mummy”. I asked [the child] to show me where daddy touched her. She then proceeded to take down her knickers and show me where daddy had touched her. She showed me two (2) places on her clitoris and her vagina. I said that I did not want to hear anything more and I then became an emotional mess. [Mr H] walked to the [local] Police Station and made a report.
35   Senior Constable [W] from the Child Prevention Investigation Unit then contacted me and [the child] and I went to give statements at the Cairns Police Station. [The child] was interviewed at the Police Station, I went back to the Police Station three (3) times and tried to do a phone recorded conversation between [the father] and myself. I am aware that Constable [W] then brought [the father] in for questioning three (3) weeks later. Constable [W] phoned me and informed me that there was not enough evidence and because [the child] was only four (4) years of age they would not press charges. He did state to me, however, that he felt that [the father] was on his way to being a serious offender and he did not suspect that this was the first time that it had happened.
36   I then had a visit from [Ms L] and another lady, from the Department of Child Safety in [the local office], and [the child] also had a recorded interview. They said that as [the child] was in my care and I had acted in a responsible manner to protect [the child’s] safety and wellbeing that they would not be doing anything further but they did say to me that if I let [the child] go back into [the father’s] care that I would be putting her in harms way and she could potentially be taken off me. I am aware that the Department of Child Safety also had a few meetings with [the father] and advised him that there was to be no contact and that if they came around harassing us that it could go back to court. [The father] stopped seeing [the child] around this time.
37   [The child] also had an internal investigation done at the Cairns Base Hospital approximately three (3) weeks later which showed that there was no penetration. [The child] then also had sessions with [a] Social Worker from Safe Kids Child Protection Liaison Unit so that she became aware of correct behaviours.

The mother relies upon evidence of Mr H in his affidavit filed 11 November 2009. The mother asserts that Mr H was a “flat mate” and that they are not living together in a de facto relationship. Whilst living in a home with Mr H the mother fell pregnant and a child, N, was born July 2007. The mother and Mr H both say that Mr H is not the father of N. I have serious concerns about the accuracy of that evidence. It was agreed that the mother, Mr H and his son A have all lived in the same premises with the child from before August 2007 until at least September 2010. There is an issue as to whether Mr H is still a part of the mother’s household.
Mr H reports that:-[1]
4.In August 2007, [the child] was spending time with her father. [The mother] had waited for [the child] to be dropped off but had to go to the hospital to feed her baby, [N], who was born prematurely. [The child] was dropped off by [the father] very late into my care. [The child] was dirty and hungry. I asked [the child] to go for a shower. [The child] then went on to tell me what she was doing with the father, went on to inform me that she had a surprise. I asked her what the surprise was and she told me she had got to touch “daddy’s doodle”.
5.I asked her if daddy had touched her and she said yes. At this time I was in dismay. [The child] went on to say that “it was nice but it hurt over time”. She told me this three times.
6.When [the mother] arrived home from hospital [the child] was happy to see [the mother]. As [the child] and [the mother] were walking, I could hear [the child] saying “mummy I have a surprise to tell you”. [The mother] replied “yes darling wait until you get inside”. I was watching television.
7.[The child] then started to tell her mother the same thing she told me. [The child] and [the mother] went into their room sometime later [the mother] came out mumbling and sobbing.
8.I informed [the mother] that she had to report this to the police. I then offered to support [the mother] to the police station. I then made my way to the [police station] and made such a report.
[1] Affidavit of Mr H filed 11 November 2009
After the alleged disclosure by the child the father did not see the child for about two years. The father said that he was interviewed by the police and officers of the Queensland office of Child Safety. He was told that he ought not seek to see the child until he was contacted by Child Safety Officers.
The father’s evidence was that he reacted very badly to the allegation and his separation from the child. He seriously abused alcohol and he was involved in least two violent incidents with his brother, the details of which are dealt with later in these reasons.
In late 2007 or May 2008 (there is an issue in respect of these dates) the father moved to New South Wales after obtaining advice from a doctor that he should move away from the Cairns area to a different place, as part of the father’s approach in overcoming the emotional difficulties with which he was then struggling. After the father moved to New South Wales he met his present partner, Ms C, and they commenced living together in May 2009. I am satisfied that since entering into that relationship the father has blocked out his problems with alcohol. Since the father commenced living with Ms C his approach to seeing the child has been patient and child-focused.
The father engaged in discussions with the mother through legal aid conferencing and sought to spend time with the child. The parties were unable to find common ground and these proceedings were commenced by the father in the Federal Magistrates Court in September 2009.
In November 2009 the mother filed her notice of abuse and in November 2009 consent orders were made in the Federal Magistrates Court for the father to spend stipulated supervised time with the child. The supervisor was initially the child’s maternal grandmother and then at the Children’s Contact Service.
The maternal grandmother alleges that the father spoke inappropriately to the child during the time that she was supervising. The father denied doing so. Having regard to my concerns about the quality of the evidence of the maternal grandmother and her enmeshment in the conflict, on this issue I prefer the evidence of the father.
In January 2010 the father commenced spending time with the child at the Contact Centre.
An Independent Children’s Lawyer had been appointed.
Mr P was appointed as the single expert to prepare a family report. He issued a report on 9 May 2010. In March 2010 the father returned to live in the Cairns area with his partner and her two children. In May 2010 Mr P provided a risk assessment report, in that he assessed the father as a low risk of sexually abusing the child. Mr P gave later evidence which I deal with elsewhere in these reasons.
A consultant psychiatrist, Dr K, was appointed as a single expert to prepare a report on the psychiatric state of each of the parties and in June 2010 he issued his report saying:-[2]
·       Neither of the two parties has a psychiatric disturbance.
·       Nothing in the material suggests the father would be inclined to sexual abuse.
·       He accepts the mother believes the child has been sexually abused.
[2] At page 8 of Annexure “D” of Dr K’s report filed 3 June 2010.
Mr P is unsure as to whether the mother believes that the child was abused and says that it could either be a strategic view on the mother’s part or her belief. Dr K expresses the view that the mother genuinely believes that the father abused the child, Mr P is unsure. I have seen the mother give evidence and I am not confident that the mother has a genuine belief that the child was abused. It is possible her approach is strategic.
The father continued to spend time with the child at the Children’s Contact Service and the child spent time with him on Father’s Day under the supervision of an independent person. The level of supervision changed after the initial hearing days in September 2010.
On the 9 September 2010 Dr K provided a report as to the paternal grandmother. He noted there was nothing to suggest that she had any continuing psychiatric disturbance.
The mother asserts that there are three incidents of abuse prior to August 2007, the detail of these allegations are set out earlier in these reasons. The mother did not report these matters (in terms of the observations of the maternal grandmother and that may be because she was not informed until after the events in early August 2007). However, I am concerned that these allegations prior to August 2007 are in the nature of reconstruction. No serious complaint was made by the maternal grandmother to the mother prior to August 2007 and the mother made no serious complaint about the alleged episode with her sister-in-law’s daughter until after August 2007. The mother was content, she says for the child to have unsupervised time with the father from separation in 2006 to August 2007. These earlier events seemed to have a sense of exaggeration, invention or amplification by both the mother and the maternal grandmother. Why didn’t the maternal grandmother speak to her daughter about these concerns in that period after separation to August 2007?
In respect of the alleged incident with her friend’s 8 year old child in 2004, as I have said elsewhere in these reasons, the mother’s sister-in-law has not attended court, nor has she provided an affidavit in these proceedings in respect of the alleged sexual assault, nor has either she or the Independent Children’s Lawyer sought to have this witness attend court and give evidence pursuant to a subpoena. The mother says that she is no longer talking to her sister-in-law, however, no evidence was provided as to any endeavours to obtain evidence from her or to the effect that she was unavailable.
The mother was cross-examined by the Independent Children’s Lawyer in relation to what happened in August 2007. The mother’s evidence was unsatisfactory. I have not recited the whole of her unsatisfactory answers to questions in cross-examination, but suffice to say, she added parts to the story which had not been raised by her with the police, or before, and I am satisfied that there is an element of reconstruction.
These proceedings were commenced before me on Monday 20 September 2010. Mr H was unable to finish his evidence and after three days of hearing the proceedings were adjourned, part-heard, to 5 November 2010. On that occasion it was proposed the trial would finish with the evidence of Mr H (who had been unwell and unable to complete his evidence in September), hear further evidence by Mr P and also some evidence in relation to the time the child spent with the father in the time between September and November.
The cross-examination of Mr H was completed on 5 November 2010. However, the Independent Children’s Lawyer relied upon two affidavits of Ms C, one filed 29 October 2010 and the other 4 November 2010. These affidavits contained about 150 pages of typed material (some in the affidavit part but much annexed).
The mother asserted there were significant errors in that material and wished to file material in reply. Much of the material contained in the affidavits was of no relevance, however, the mother was entitled to have procedural fairness and to reply. Accordingly, the proceedings were again adjourned part-heard, this time from 5 November 2010 to 27 January 2011. Evidence was given on 27 January 2011. Part of the evidence in January 2011 included an email[3] in relation to an event which had occurred the preceding week. Having regard to the evidence of Mr P, I am not concerned about those events as it appears that it is merely inquisitiveness by the child which has been dealt with well by the father and Ms C.
[3] Exhibit ICL5.
The father tendered school reports for the child. The mother objected to that tender. However, I admitted the reports into evidence having regard to the issue about which school the child would attend.
At the conclusion of the trial, I made interim orders that the child live with the mother and have regular unsupervised time with the father and other orders.
Having regard to the evidence at that stage, I made further interim orders in respect of the time the child spent with the father.
In these proceedings, any statement of fact is to be regarded as a finding of fact.

RELEVANT LEGAL PRICINPALS TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child, subject to section 61DA.
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interests a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider;
Each of sub-ss (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. Sub-section (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 subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[5].
[5] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.

In this case the initial consideration must be whether, after analysis and consideration of all of the evidence, I conclude that the child is at unacceptable risk in the future of abuse neglect or violence. I have not set out the jurisprudence in this area as it is well known. The court must assess the future risk of exposure of the child to physical or psychological harm and formulate orders which protect her from that harm. There are numerous authorities in relation to the principles relevant to the determination of cases involving allegations of sexual abuse of a child.[6] Brown J extensively discussed the principles applicable to sexual abuse cases in the matter of Hemiro and Sinla.[7] Her Honour’s analysis and discussion is detailed and comprehensive. I agree with and adopt Brown J’s analysis.
[6] See, for example, Partington & Cade (No. 2) [2009] FamCAFC 230 (Bryant CJ, Warnick & Boland JJ) at [57] – [61].
[7] Hemiro and Sinla [2008] FamCA 181 at [20] – [51].

WITNESSES
Mr R

Tendered by consent was a Contact Supervisor’s report for Father’s Day, September 2010 between 12.00 noon and 3.00 pm. This was not in sworn form, however, the mother did not dispute the material contained in that report.
The report noted that the child was at first shy but became more confident, relaxed and happy with the father. The reporter observed no difficult circumstances and formed positive views as to the overall experience with both the child and her father.
I am satisfied that the child’s relationship with the father rebounded quickly and that their relationship was well re-developed and re-established.

Mr P

Mr P was appointed as a joint single expert to provide a Family Report and later a risk assessment. He is a highly qualified and experienced Clinical and Forensic Physiologist. He has extensive experience in writing professional reports and is well published; his qualifications and experience were not in issue. He provided two reports which were read into evidence namely 9 February 2010 (“the first report”) and 13 May 2010 (“the second report”). Mr P was cross-examined by the Independent Children’s Lawyer, the mother and counsel for the father. Mr P gave further evidence in January 2011 after being provided with more material.
In relation to the mother, Mr P noted that she maintains an adamant belief that the father has sexually abused the child and does not support unsupervised time and only reluctantly supports supervised arrangements. Mr P’s report and indeed his oral evidence was that the child had likely been coached by the mother. At paragraph 150 of his first report he observes:-
150.In the writer’s experience, the mother’s presentation, and together with [the child’s] reports of the alleged abuse itself; raise serious concerns regarding the mother’s pro-active coaching (and the possibility of bribing) of the child prior to interview.
151.Further, the writer considers that the nature and content of the declarations regarding her feelings and wishes concerning the relationship with her father, reflected adult [terms] on the child’s part.
Having assessed all of the evidence, I find that the child was coached by the mother in terms of her ‘memories’ of the allegation made in August 2007 and that but for that coaching the child would have no memory of the alleged abuse. I am satisfied that the mother has done this to improve her position in terms of these proceedings in spite of the inevitable detrimental harm to the child.
Initially in early 2010, just prior to the father and his partner moving back to the Cairns area, Mr P recommended a continuation of supervised time between the child and the father. This was not made because the expert considered that the child was at an unacceptable risk but rather in the context of the mother’s expressed adamant belief that the father has abused the child combined with Mr P’s view that:-
‘in the [the child’s] best interest; supervised contact appears critical to maintain any semblance of a father-to-child relationship’.[8]
[8] At paragraph 156 of the first report.
Mr P recommended that there be a specific risk assessment of the father.
That risk assessment occurred with interviews of both the father and his partner, separately, in early May 2010, by which time the father was living in the Cairns area. In his second report dated May 2010 Mr P set out details of that risk assessment of the father. He reported on a series of psychometric testing and personality assessment. He cautioned in his report and I note that:-
Any risk assessment judgment, no matter how carefully evaluated; can never be an absolute predictor of whether a given individual will or will not offend (or re-offend).
I accept that caution. Mr P then said:-
On balance, the father presented as a low risk in terms of sexual abuse.
In particular:-
The particular allegations that have been documented in this matter, appear substantially unlikely to be related to any history of, or any current paedophilic tendencies on [the father’s] part.[9]
[9] At paragraph 123 of the second report.
Mr P went on to say:-
123.Consequently; and on balance; the writer considers that the particular allegations that have been documented in this matter, appear substantially unlikely to be related to any history of, or any current paedophilic tendencies on [the father’s] part.
124.In the writer’s experience, whilst no objective justification can be offered for limiting reasonable contact between [the child] and her father, by her own admission it is likely that transition to such arrangements would involve significant adjustment difficulties on the part of the mother.
125.The writer particularly notes and accepts [emphasis added] [the father’s] position regarding outcome of “shared care arrangements”; specifically operationalised as “eventually, but with a slow lead-up”; and strong support by his current partner.
126.… should the court decide to support unsupervised orders a stage process over a number of months would appear appropriate, together with current experience and professional support for the mother during such transition.
In terms of these comments it is for the Court to determine the level of risk, if any, and not the expert. However, this should not be seen as a criticism of Mr P for coming to and expressing views, as it was a factor in my conclusion (based on an assessment of all of the evidence) that the allegations are likely not to have occurred or are a misinterpretation or a mal-interpretation of otherwise innocent events.
Even in the early times, Mr P considered that much greater, even equal time, was a viable option for the child.
In relation to a staged spend time with process at that early time, Mr P said there should be an order that there be some support for the mother and that assistance from court counselling may be of some value. This occurred over the period of the hearing from September 2010 to January 2011.
In cross-examination, Mr P said that when the child is given opportunities to spend time with the father, she thrives. I accept that evidence.
As I said earlier, in relation to the mother’s views, Mr P was not sure that the mother genuinely believes that the abuse took place and he said that it is possible that the mother’s complaint was “strategic”.
In relation to the father’s new partner, Mr P formed a view that although aligned to the father she impressed as a mature, independent and forthright individual, and certainly as a mother who took her responsibilities seriously.[10]
[10] At paragraph 70 of the first report.
He went on to say:-
The writer [Mr P] particularly notes and accepts [the partner’s] position regarding the desired outcome of “shared care arrangements”: specific operationalised as “eventually, but with a slow lead up”: in strong support for such by his current partner.[11]
[11] At paragraph 125 of the second report.
Clearly Mr P thought positively of the father’s partner. His view of her matched mine. I was impressed by her and her approach to parenting.
Mr P observed, as it turned out very accurately, that the mother minimised her relationship with Mr H. He was concerned why the “flat mate” was involved in the bathing of the child in August 2007 (when the child was about four).
I share that concern and his impressions of prevarication, reconstruction and perhaps fabrication of the evidence of both Mr H and the mother about this incident. I am concerned at a number of levels. It is indicative of a more significant relationship than as a “flat mate” or, as Mr P said the mother would need significant trust to allow a “flat mate” to undertake such bathing and was concerned that the mother would leave such task to a flat mate. Another concern is that the evidence of the mother and Mr H was that each asked the child almost the same question as to whether the father had touched her immediately after the child is allegedly said she touched her father. There is no evidence or suggestion that the child was abused by Mr H, the troubling nature of the evidence is the mother’s immediate and narrow conclusion that the child was abused and the elevation of Mr H, before, and following that time as the ‘child’s father’.
The hearing of this proceeding took place over a number of days in September 2010, November 2010 and January 2011. Over those months the child spent considerable time with the father, his partner and her children. Mr P gave oral evidence in January 2011 after being provided with all of the updated material of the parties. He reiterated his concerns about the mother in down playing her relationship with Mr H, which was contrary to the statements of the child about Mr H. Mr P said he was concerned about Mr H’s involvement in the child’s life, as am I.
Mr P said he that the child had transitioned well into the father’s household and that it had happened so quickly was a positive.
The evidence of Mr P in January 2011, in terms of the child’s relationship with the father was positive and optimistic
As I indicated earlier, in January 2011 there was an incident involving the child and her step brothers which, on the face of it, appeared to be a display by an inquisitive child and the response provided by the father and his partner was appropriate. Mr P said, and I agree, that it was not a significant issue nor was the behaviour unusual.
Mr P had not seen Mr H but was concerned about the types of behaviour for which Mr H had been convicted, sentenced and imprisoned. Mr P’s view was that, having regard to the nature of the offences, any treatment of Mr H would need to be significant and intensive. Mr P was concerned about the non-disclosures by the mother and her minimising of its potential impact on the child.
In terms of the mother, Mr P was concerned that she had not relented in her views as to the risk of the child in the father’s care (notwithstanding a light being shone on those events).
Mr P said that the current arrangements are problematic and it is likely that the mother will not accept any or any significant contact between the child and the father. The mother is unlikely to promote the relationship between the child and the father. The mother will continue to believe that the father is a sexual predator. Having heard all of the evidence, I share those concerns.
Mr P said, and I agree, that in this case shared time could not work as a consequence of the poor communication and distrust between the parties, particularly on the part of the mother.
Having regard to all of the evidence, I accept that view. I find that equal shared parental responsibility would create a decision-making sclerosis and as such would not be in this child’s best interests; as these parties can barely speak to each other, let alone communicate in an effective way in respect of the care of the child.
The mother says she believes that the father is a paedophile and further that she sees no problems with the involvement of Mr H in the child’s life, except that she believes that he has been demonised by these proceedings and she asked him to leave, she says. She moved the child from a school where the child was thriving, solely motivated by a desire to avoid contact between the child and the children of the father’s partner.
Chillingly, Mr P was concerned that if the child was placed in the full time care of the father (which was a viable option according to Mr P and which view I have ultimately adopted having regard to all of the evidence) the mother may have difficulty coming to terms with this and there could be risks to the child in her care.
Mr P said the father had been assessed and he had found nothing of concern in terms of the father’s care of the child. The father’s partner is mature and supportive.
His evidence about the risk to the child if left in the mother’s care, particularly if there was significant time or a change of residence to the father, was that the mother may become resentful and attempt to take the child hostage. He was concerned the mother may deal with her own needs rather than those of the child. He recommended that the mother spend supervised time with the child for a while and then provide for the child to spend significant time with the mother.
I accept the evidence of Mr P, with the exception of the need for the mother’s time to be supervised. The mother has not physically harmed the child and as has been her primary carer since birth. The consequence of a supervision order in practical terms may mean that the child does not or cannot see the mother, N or A. I will adopt part of the recommendation and have a structured re-connection between the mother and the child over a period of a few months.

Dr K

Dr K is a Consultant Psychiatrist who provided three reports:-
· The first report dated 3 May 2010 in relation to the father
· The second report dated 5 May 2010 in relation to the mother
·The third report dated 4 August 2010 in relation to the child’s paternal grandmother.
In relation to the report undertaken in respect of the father, Dr K said:-[12]
The father showed no evidence of any psychiatric, psychological or emotional problems.
[12] At page 8 of the first report.
He went on to say that:-[13]
The way he (meaning the father) presented in interview and the history there was nothing which would suggest he was inclined to sexually abuse a child, his or anybody else’s.
[13] Ibid.
That opinion of course is carefully couched in terms that Dr K could not say whether the father did or did not abuse that particular child.
In terms of the second report with regard to the mother, Dr K did not see her having any significant psychiatric or emotional problems. Dr K ruminated whether the child’s “disclosure” may have been a reasonable reaction to the birth of the mother’s second child, N.
Dr K is of the view that the mother believes the father abused the child.
The third report related to criticisms made of the child’s paternal grandmother by the mother. To her credit, the paternal grandmother consented to a psychiatric assessment. Dr K said there was nothing that he observed to suggest that she had any significant psychiatric, psychological or emotional disturbance. He also said there was no sign of any Bi Polar Disorder and there was nothing to suggest that she had significant alcohol abuse problems.
Of the paternal grandmother, he observed:-[14]
I have to say though that I see this lady as a perfectly competent and capable person; hard working, reliable and responsible appropriate attitudes towards children and would see her as having the potential to be a very useful person to the welfare of the child.
[14] At page 5 of the third report.
This evidence was admitted unchallenged and I accept that evidence.

The father

The father gave evidence in accordance with his affidavit filed 16 July 2010. It was read into evidence without objection.
Rather than invite the mother to cross-examine first (as is the normal course), I invited the Independent Children’s Lawyer to cross-examine the father and then allowed the mother to undertake her cross-examination. This seemed to me to be a fairer approach in terms of the mother, as she was self represented.
The father gave evidence of a happy occasion when the child met his partner and her younger children on Father’s Day. His descriptions of the event were appropriate and otherwise unremarkable.
The father said that after the allegation of abuse in August 2007 he began to drink heavily and had a regular daily consumption of beer, over that period he would go many months drinking between a carton and one and a half cartons of full strength beer per session. He says that his abuse of alcohol was significant and he had memory loss of some description.
Problematically for the father is a report from Queensland Hospital or doctor dated 3 February 2008.[15] In those notes the father describes two events. The first when he allegedly held a knife to his own throat when a “touchy” subject arose and there is also report of an incident two months previously (about December 2007) where he held an unloaded gun to his brother’s head.
[15] Exhibit ICL2 – bundle of documents at page 15 - progress notes.
These are troubling and dangerous events where the father was clearly out of control in terms of his behaviour. These alone created the necessity of the assessments by Dr K and Mr P.
Having heard the evidence of the father and considering this in the context of the expert evidence, I am satisfied that the father did these things (and the father does not dispute them) in the context of his abuse of alcohol following the allegations made in August 2007 and the subsequent investigations. Further that this behaviour was generally out of character for the father.
There was some issue as to whether the father left to go to New South Wales in December 2007 or May 2008. The father’s memory of those events, whilst not lost, is clearly not perfect. I accept he went to New South Wales in about April or May 2008. He did not see the child for about two years after August 2007.
The father gave evidence that he was the primary carer of the child for the first eighteen months of her life. My impression is that the father overstated his involvement with the child over that period of time. I find that he had a significant relationship with the child but not to the extent that he asserts.
The father’s evidence is that he met his present partner about two years ago and they commenced cohabitation in mid 2009. They moved up to Cairns in April 2010 so that the father could continue his desire to re-form a relationship with the child. The involvement of the partner in the father’s life has been very positive.
The father and his mother were cross-examined about a gun he possessed at the time of separation and the allegation of abuse. He said the gun had been given to the police. The paternal grandmother confirmed that she and her husband removed the gun from the father’s possession after the events in December 2007 and they gave it to the police. I am satisfied that the father no longer has control or ownership of that gun. The father was cross-examined in respect of a “cross bow”. He was somewhat disingenuous in respect of his evidence, for he later described it as some kind of archery unit.
There was some evidence of an argument between the mother and the paternal grandmother at Christmas 2005 (in the months shortly before the parties separated). That argument has little to do with the present issues at hand.
The father was at some levels frank in his evidence that he needed to get away from the environment in Cairns so he could sort himself out. He did just that. He went to New South Wales, met his partner and has dealt with his alcohol abuse and other issues arising from it. He has spent supervised time with the child. I accept that evidence.
There is some issue about the name the child used for a penis. The father said it was a “do do”, not “doodle”. It is clear that both terms were used.

The father was critical of the mother for not talking to him. It is somewhat naive on his behalf to believe and assert the mother, when presented with a serious allegation of sexual abuse, should go to the alleged abuser first.
The father was concerned that the child had been moved out of V Primary School shortly after his partner’s children began attending that school. That concern was well founded.
The father says that prior to the allegations of abuse the communication between he and the mother was quite poor. The mother said it was good. On balance I prefer the evidence of the father in that respect. Overall I am satisfied that the mother was looking for a reason to minimise or stop the time the child spent with the father.
Interestingly and perhaps frankly the father, when asked to consider the impact of the change of the child’s residence, notwithstanding that he sought it, was on the basis that “it was too much of a big decision for me”, “it should be decided by the Court”. This evidence was given in September 2010, but by January 2011, the father’s case was that the child should live with him. Having regard to the evidence and events following September 2010, I regard the father’s earlier evidence as reasonable apprehension and his ultimate position as having been arrived at after careful deliberation that change is understandable.
This must be seen in context that the father pays very small amounts of child support despite his assertion that by “using trusts” he can support the child fully. I am not satisfied that the father has provided the material support for the child which he has the capacity to do and which he ought to have done. This does not reflect well on his sense of his responsibility to support the child financially.
I have observed the father’s record of interview with the police. There is nothing there which is inconsistent with his broader evidence and his denial.
I treat his evidence cautiously because of the father’s tendency to exaggerate and minimise his own role in the events that occurred between the parties.
The father filed a further affidavit filed 18 January 2011. The affidavit dealt with an issue raised by the mother in respect of some unhappiness in the father’s home in December 2010.
In December 2010 the husband’s partner received news that her mother was terminally ill and understandably she and the members of the family were upset. The father’s partner provided supervision for the child and with impressive clarity of mind and purpose, tried to meet her needs in terms of her mother and the needs of her family in terms of supervision of the child. The mother was unhelpful, unsympathetic and obstructionist. She exaggerated her observations or recollections of statements and/or events at the father’s home. I prefer the evidence of the father and his partner. I am satisfied that the father’s partner has, in all of her evidence, endeavoured to be accurate.

Mrs Shrine

Mrs Shrine, (“the paternal grandmother”) gave evidence in accordance with her affidavits filed 15 July 2010 and 20 September 2010.
She identified with her son in terms of these proceedings. I accept her evidence that she was worried about him when he was abusing alcohol and removed a gun from his possession. At the time she gave evidence, she had not seen the child since Christmas 2007. It was troubling that the mother had not tried to keep a relationship between the child and her paternal family over those years.
The paternal grandmother is a trained nurse and has good qualifications. I am satisfied that she was significantly involved in the child’s life from her return from the Northern Territory in about 2004 until the events around August 2007.
Watching the mother cross-examine the paternal grandmother was educative. There was a real antagonism between them which could be seen in their body language, their expressions to each other and the tone of voice and facial expressions that each distributed. They clearly do not like each other and the conflict was clear.
The paternal grandmother gave evidence as to events at the time of the disclosure. She said that the child had been interested in penises at that time and described them as a “do do” or “doodle”. The child had been interested in a boy child’s penis. The paternal grandmother said that the child raised with her, shortly before the alleged disclosure, that she had “touched the father’s do do”. The explanation was in an innocent way and was appropriately dealt with by the paternal grandmother in terms of her discussions with the child and subsequent discussions with the child.
I am satisfied that her explanation of those events is accurate and that there is a plausible explanation in terms of the child’s allegations.
The evidence of the paternal grandmother is subjective and coloured by her love of and belief in the father. However, I am satisfied that her evidence of the child’s interest in “do dos” and her observations in about August 2007 are truthful. The child had an interest which was well managed and well dealt with by the paternal grandmother.

Ms C

The father’s partner gave evidence in accordance with her affidavit filed 15 July 2010, she filed later affidavits, one of which provided an almost minute by minute account of the child’s time with the father and her family. She provided evidence in terms of the events surrounding her mother’s illness in December 2010 and January 2011. I accept her evidence. She was a particularly impressive witness. She is child-focused and sensible. The way she had approached moving to Cairns in terms of her own children and their family was admirable.
The father’s partner has four children, two of whom have lived with their father for some time since their mid to late teens and two of whom live with her. She negotiated with her children’s father to come to Cairns and she was happy to provide accommodation, cars and regular communication between her younger children’s father and his mother. In many ways she was a model of co-operative parenting in terms of her own children.
She enrolled her children in the same school as that of the child but directed that her younger child not be in the same class as it may put pressure on all of the children, hers and the child. It was a sensible and child-focussed position to take. The children eventually found each other. Shortly after their discovery, the child was moved by the mother from that primary school.
I am satisfied that the father’s partner is a competent child focused parent who would not allow any harm to come to the child, irrespective of whether it was from the father or anyone else.
She was subjected to poor behaviour by the mother as set out in paragraphs 68 and 69 of her affidavit. I accept her evidence about those events.
She gave evidence about the father’s drinking. I accept her evidence that the father is now a modest drinker and that she rarely drinks.
The father, quite properly, disclosed to his partner the history of the allegations and she has considered that in terms of her children and in terms of the child. I accept her evidence as being reliable.
In a further affidavit on 18 January 2011, the father’s partner described the events surrounding her mother’s illness. As I have said earlier I accept that evidence. She also provided further evidence in relation to the Hotel, where the mother expressed concern about that venue. For the reasons articulated earlier, I prefer that evidence of the father’s partner to that of the mother.
I also accept her evidence of the driving incident following the hearing days in September 2010.

Mr Shrine

The father’s brother, Mr Shrine, provided evidence in an affidavit filed 27 July 2010. That affidavit was read into evidence without contest. It sets out some aggressive behaviour on the part of Mr H. I accept that Mr H was aggressive and threatening when some documents were delivered to his home in July 2010. I accept that this caused the father’s partner and her children to be frightened.
Some documents were handed to Mr H, who for some reason took offence at this innocuous behaviour; this was the address of the mother who was acting for herself. After the delivery of the documents, Mr H attended at the father’s home. He stormed into the property and yelled loudly and aggressively “don’t you ever come to my fucking house again, serving papers ‘n’ shit!”. He then threw the papers and hit the father’s partner with them.
Mr H then said “don’t come again or you will be fucking sorry!” and walked away. The father’s partner and her children aged seven and eight were upset and scared. This evidence belies the evidence of Mr H, that he is no longer violent and has changed since his imprisonment. It also caused me to have some concern as to the quality of his evidence about the extent of his health problems. It is likewise consistent with the events described by the father and his partner on the road to V following the hearing days in September 2010, and making the mother’s description of that event less likely.
The evidence of the father’s brother was admitted without controversy and I accept it.

The mother

The mother gave evidence in accordance with her affidavits filed 4 November 2009, 8 July 2010 she filed a later affidavit and gave direct evidence in January 2011. She read a statement into evidence. This was a statement she had prepared before the hearing.
The mother was not an impressive witness. She prevaricated and at some levels seemed to give answers that had a sense of recent invention and/or fabrication. One of many such instances was the evidence that Mr H was no longer living at the home in which she lived.
It is deeply troubling that when she was taking the child to see Mr P she reminded the child of the events that had occurred almost three years previously. The mother claims to have had no sense as to the impact of this on the child. The mother clearly coached the child in relation to what was to be said to Mr P and what the child had ‘remembered’. The mother feigns innocent explanations but my impression is that her approach contains elements of cunning behaviour.
Even with the August 2007 allegation it was the mother who suggested to the child that the child had been touched, and in almost precisely the same terms as those allegedly independently used by Mr H earlier that evening, whilst claiming that they did not discuss it at that time in. That particular evidence has a colour of collaboration. It undermines the nature and extent of the allegation of August 2007.
The mother asserted that the father had said that he did not wish to bath the child after the child was about twelve months old. The father’s evidence was that he, soon after the child was born, expressed some reluctance to bath her because of her size. The mother said the father did not bath the child between 2004 and separation in 2006 and was surprised that the father bathed the child between separation in mid 2006 and the disclosure in July/August 2007. When pressed in cross-examination, the mother acknowledged that the father bathed the child when she was in his care.
The mother said that at that stage the child, then aged between three and a half and four and a half, had managed to bath herself. When pressed in cross-examination it became clear that this evidence of the mother was unreliable. I do not accept it. I am satisfied that the mother knew that the father bathed the child.
The mother was pressed at length over possible alternate explanations as to what happened in August 2007. She was steadfast in resisting any alternative other than the father abusing the child. This should be seen in her approach to the background and behaviour of Mr H, the mother adopts very different standards depending on what she wishes to achieve.
The mother was questioned as to why she did not commence proceedings as recommended by the Department of Child Safety. Her explanation, that she was confused when she went to the Court, was fanciful.
The mother says N is not Mr H’s child. The father is not on the birth certificate. The mother was required to produce the birth certificate. I am troubled by this evidence. That said, the paternity of N is not a matter in respect of which I need to make any finding. I note, however, that if Mr H is not N’s father, there is no evidence of the mother promoting any meaningful relationship between N and his natural father, nor any evidence led as to the circumstances in which N’s paternity is not known to the mother.
It is clear that Mr H was described in school records and the police records as the child’s step-father. In the Welfare Department files he was described as the de facto or step-father.
The mother denies that she has had any physical relationship with Mr H at all and says that there was a period of two weeks, about the time of the disclosure in August 2007, which she contemplated a relationship with him. I find her evidence in this regard unreliable.
The mother moved in to Mr H’s home soon after separation in mid 2006. The mother said Mr H was her brother’s best friend. She was aware of Mr H’s criminal history, but minimised its extent.
In August 2004 Mr H was convicted of a serious crime of violence and served twelve months in jail. The violence involved him endeavouring to strangle his then de facto partner until she lost consciousness and also lost bladder control. Mr H held a knife to his de facto partner’s ribs saying he could easily stab her then moved the knife to the de facto’s throat.
In any sense this was a seriously violent episode. The mother minimised his violence and said that much of that arose because of Mr H’s then de facto partner. It is deeply troubling that the mother regards the father as a risk to the child but is content to minimise acts of violence undertaken by Mr H. Mr H has a long history of convictions for violence.
The mother is content to leave the child in the care of Mr H, including in 2007 to allow him to manage the child whilst bathing or showering, and yet demands of the father that any supervisor be the subject of a police history check. The mother does not seem troubled by her double standards. It was quite rightly suggested that this was at the very least hypocrisy on the mother’s part.
The mother has encouraged a relationship between the child and Mr H to the extent that Mr H was referred to as a “step-father” on one school record and his name was an alternate surname on other documents. The child calls Mr H “dad”. The mother said that this was a decision of the child which she made back in 2007 when she was aged 3 or 4.
Having regard to the mother’s evidence, I am satisfied she encouraged the child to refer to Mr H as “dad”. Having heard the evidence of the father and the evidence of the mother in relation to the father’s name, I am satisfied the mother has encouraged or at least allowed the child to refer to the father by his given name rather than “father”.
The mother did not encourage a relationship between the child and the father prior to August 2007 and after the disclosure the mother took steps to exclude the father and eventually his family from the child’s life. She encouraged or did not disabuse the child from identifying Mr H as her father. She gave instructions to the child’s school not to allow the father to have any contact with the child. If her concerns were real some of this would be understandable and desirable but the denial of the child’s broader identity and the easy identification of Mr H as the father figure say much about the mother and her parenting of the child, little of which is positive.
In respect of preventing the child from having any contact with her paternal uncles or paternal grandparents, the mother offered no cogent explanation.
When the father and his partner moved to V and enrolled the partner’s children at the V School the child was removed from that school. The child was then and now is enrolled in S Primary School. The mother said that the reason she moved the child was that there were relatives of the child at that school, that the child had expressed concern about a car with the father’s name on it, being out the front of the school and that the education at V State School was less than optimal for the child. I do not believe her, I am satisfied that the mother was endeavouring to exclude any influence of the father on the child, including influence through his partner and her children.
The mother has changed the child’s surname to “Murphy”. The mother said this was the child’s choice. I do not accept that evidence. I am satisfied that the mother has consciously endeavoured to change the child’s surname as part of her endeavour to exclude the father from the child’s and her life.
It is significant that this had started before the disclosure, the child having referred to Mr H as “dad” or similar prior to the disclosure. In the sequel to the disclosure, the child identified Mr H as her father.
The mother says she will accept the Court’s decision. The mother has not accepted the opinions of Mr P or Dr K. The mother was particularly scathing of Dr K’s approach. Mr P is concerned about how the mother will accept any determination by me which requires the child to live in the primary care of the father. I agree that there is cause for concern and, as discussed below, my determination. I will put in place a gradual re-introduction of time between the child and the mother.
Having heard the mother’s evidence and considering the expert reports and events since September 2010, I find that the child deeply missed the father since August 2010 and has thrived as a consequence of the restoration of time with him and his broader family.
The mother was cross-examined by the Independent Children’s Lawyer and provided a history of moving in to the home in which Mr H lived as he was a friend of her late brother. She had known Mr H for about a year before the parties separated.
She said Mr H shares a room with A (Mr H’s son) and that she and her two children live in the front room. They had moved from another area in Cairns to V about two or three years ago.
The mother knew that Mr H had a violent background but said she had not seen any sign of it and relied upon information provided by her sister-in-law (who the mother now has nothing to do with because she says the sister-in-law is on drugs and is currently facing prosecution for murder) and Mr H.
It was troubling the mother was not concerned when the full details of Mr H’s violence were disclosed in court and, in many ways, sought to minimise it. Similarly the mother was aware that Mr H had assaulted his son A at school in November 2009 over an issue of smoking and saw no problems with that event. The mother was aware that Mr H had attended at the home of the father in 2010 when some documents had been delivered by the father’s brother but did not believe the violence and the threats made to the father’s brother, notwithstanding that she did not require him for cross-examination.
When pressed on issues the mother’s evidence would, from time to time, change or subtly alter.
The mother’s discussion with the child on the way to see Mr P when she reminded her of the alleged abuse by the father was troubling. The mother said that on her way to see Mr P, when questioned by the child, the mother said:-
You are going to see the man about what daddy did to you.
The child replied to the effect that:-
She had forgotten and what did daddy do?
The mother then said:-
Daddy touched your private parts and you touched daddy’s private parts.
The child then said she did not want to see the man. That is not surprising. At a minimum the mother was insensitive to the needs of the child and at worst the coaching and/or reminding the child of events which did not occur is abuse in itself.
The mother blames the father’s alleged sexual abuse of the child for her acting out in 2007. It is clear from the evidence of the then counsellors that the child was missing her father. The mother was not facilitating the child spending time with the father’s family, and after late 2007 the mother cut all contact between the child and the father’s family. Her excuse that it was their behaviour that resulted in this was not believable. I repeat my finding that following separation in 2006, the mother was endeavouring to isolate the child from her father and his family.

The father’s evidence is that he and the mother had a very difficult relationship after separation. The mother denied that this was the case. I prefer the evidence of the father.
I am satisfied that there are plausible explanations as to the child’s expression about “touching the father’s penis” in August 2007, including that provided by the child’s paternal grandmother and the father which was that the child had displayed a perfectly normal inquisitiveness about male body parts not just in respect of the father but also with a child near the paternal grandmother’s home.
It is likely that the child said something to Mr H and the mother which has been taken out of context and/or amplified to end the father’s time with the child. The mother has a tendency to exaggerate and the evidence of Mr H is unreliable.
On the evidence, I am satisfied that the child may have said something about touching her father and may have seen or even touched her father’s penis when showering. At that time she was inquisitive about male reproductive organs.
I do not accept the evidence of either the mother or Mr H that the child said the father touched her. I find that such evidence was likely to have been fabricated to increase the impact of an otherwise innocent statement by the child. I am concerned that the mother catastrophised the incident in furtherance of her desire to keep the father out of the child’s life. She has taken significant steps since that time to remove the father from the child’s life and remove the father’s family from the child’s life. The mother has created or at least reinforced in the child’s mind, over many years, a belief that the father is a danger to her.
In her affidavits the mother asserts that the police had told her that they believed that the father “did it”. She repeats conversations she allegedly had with the police officers involved in the investigations. These officers were not called by either the mother or the Independent Children’s Lawyer.
Part of the evidence before me was the videotape interview of the father on 20 August 2007. Nothing in that interview was of assistance in determining whether the father had been abusive of the child as was alleged. The father denied any inappropriate action and his story then is consistent with his story now.
On the basis that the police were not called to give evidence personally, I infer that their evidence would not have assisted in a determination as to whether the father had sexually abused the child as alleged.
The mother had antipathy towards the father and in the light of that antipathy (whether conscious or unconscious), the mother pursued and exaggerated that disclosure.
The mother continues to absolutely believe, she says, that the father sexually abused the child. Even in her final submissions she made it clear that she wanted the child to be in the supervised care of the father. I am concerned that the evidence of Mr P is correct that there may be some strategic nature to that expressed view.
Shortly before the hearing resumed in late January 2011 the child engaged in some other activities which are described in Exhibit ICL5, namely an email of 21 January 2011. It serves no purpose to recount the event, however, the response by the father and his partner was appropriate and I accept the evidence of Mr P that the child’s behaviour was not unusual.
An ongoing risk in this case is that identified by counsel for the father, that is that the mother will continue to imbue the child with a view that she has been sexually abused.
As to the first allegation contained in the affidavit of the child’s maternal grandmother, about something she allegedly saw in April 2004 and having regard to the views I have expressed about the evidence of the maternal grandmother and the father’s denial, I am not satisfied that this is evidence of anything other than a reconstruction of an otherwise innocuous event.
In respect of the second incident, set out at paragraph 24 of the mother’s affidavit filed 4 November 2009, the mother says:-
24.In September 2004, I remember coming home on a Saturday. [the child] was in [the father’s] care. The house was extremely dirty. I came home and noticed that [the child] needed changing and she had a really wet nappy. When I changed her nappy, I noticed her vagina had very distinct round rub marks. I asked [the father] what this was. He replied he did not know. At the time I was concerned and I informed him I was taking [the child] to the [local] Medical Centre. [The father] just looked at my blankly and walked away. The red mark went away over approximately three days.
There was no objective evidence that the mother had reported this to a medical centre or otherwise. The father has denied any such behaviour. This evidence was assessed by me as either an exaggeration or fabrication.
The mother also submitted that the father had engaged in some form of inappropriate sexual relationship or assault on her niece. The father denies that allegation. No objective evidence was called to support the mother’s story. Surely, and despite the conflict between the mother and the child’s mother, such evidence could have been called.
The mother says that in July/August 2004 the father attempted to engage in improper behaviour with an eight year old female while holiday in Y. She says this:-
25.In July/August 2004, [the father], [the child] and I went on a holiday to [Y] to my girlfriend. I have know [Ms J] for nineteen years. While we were there [Ms J] asked her daughter approximately eight years of age to go to the shower. [Ms J] then walked around the hallway and found [the father] in the bathroom with [Ms J’s daughter] who was naked. [Ms J] then removed [the father] and closed the bathroom door. From that time on, [Ms J] would not let [the father] be left alone in the house with her daughter.
The father denies this and said it is a fabrication. The events that the mother describes are hearsay, and in the absence of evidence from the niece’s mother have no weight.
I accept the submissions made on behalf of the Independent Children’s Lawyer which are consistent with my observations of all of the witnesses during the course of the hearing which took place over about five months. This of course includes the evidence of Mr P. Having considered and reflected on all of the evidence, I am satisfied that the child is not at an unacceptable risk of sexual abuse in the care of the father.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

The child has been in the primary care of the mother since birth. She lives with the mother. There is a significant benefit in the child having an ongoing and meaningful relationship with the mother and an ongoing and meaningful relationship with N. No-one argued the contrary to that point and it was the crux of the submission made by the mother. The risk is that the mother will continue to make allegations and is likely to remind the child of the mother’s version of the allegations.
Having heard the evidence of the father, his partner, the experts and other witnesses, and having made findings as to the positive relationship the father had with the child prior to August 2007 and the relatively quick re-development of that relationship in recent times, I am satisfied that there is a benefit for the child having a meaningful relationship with her father, and indeed in the different but positive family atmosphere in which the father proposes to bring the child up in. By that I mean the father’s partner and her children.
As I said earlier the child has thrived in the re-establishment of her relationship with the father.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

Any views expressed by the child to Mr P must be treated with great care. The language the child used was observed by Mr P as being adult language and there is evidence of coaching and perhaps bribing. What is clear is that the child has fitted well into the father’s household including lengthy periods over the recent Christmas/New year school holidays.
The child has clearly re-developed a good relationship with the father. I am conscious that her primary attachment is inevitably with the mother. I have had regard to the views of the child.

Section 60CC(3)(b) the nature of the relationship with the child with:
(i)each of the parents; and
(ii)other persons (including grandparents or other relative of the child)

The mother has provided for the needs of the child since birth and the child has flourished at school, both V Public School and the catholic school the mother removed the child to in 2010. I am satisfied that the child has a close relationship with A and with N. I have been cautious in determining whether to change the present parenting arrangements. I was invited by counsel for the Independent Children’s Lawyer to change the parenting at the end of the last day of evidence; that submission was supported by the father’s counsel. However, with their proposals involving such a major change, I declined that course and took time to carefully evaluate the evidence and reflect on the material before me.
Since the child has re-formed her relationship with the father and met the father’s partner and her children that relationship has developed in a positive and constructive way. It is certainly not of the nature of the relationship between the child and the mother. However, it has moved remarkably over recent months.
The evidence of the father’s partner, which I accept, shows an active and interesting lifestyle for the child in the father’s household.
The child has a close relationship with her brother N and has been in the mother’s primary care since birth. The child is now aged eight.
As I have indicated earlier, the child has a close relationship with the mother, N, Mr H and A. Mr H was and I believe remains a part of the child’s household. The mother says that Mr H moved out in September 2010. As I have said earlier, I do not believe her. It was a convenient piece of evidence and was not supported by the evidence of Mr H, nor was it raised by the mother earlier.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

This is one of the fundamental issues in these proceedings. I am satisfied that if the child remains primarily in the care of the mother, she will do her best to alienate the child from the father and his family. I am satisfied that the mother will continue to reinforce in the child a belief that the father is a risk to her and has sexually abused her. That belief will be promoted by the mother and supported by Mr H. It will be supported by the child’s maternal grandmother, who likewise believes the child is at risk in the care of the father.
To leave the child primarily in the care of the mother will inevitably mean one of a number of outcomes. It will probably mean another hearing in the not too far distant future. In addition, the child may lose contact with the father or believe him to be an abuser.
In her recent affidavits, the mother raised concerns about a number of what would otherwise be regarded as ‘innocuous issues’. These are set out in her most recent affidavits. This was to justify the child having less time with the father. What it turned out to be was evidence that the mother will take whatever steps she can to reduce the time the child has with the father.
The underlying issue remains whether the mother will facilitate a relationship between the father and the child, which is important, or whether she will endeavour to circumvent that time and communication. I believe she will not.
On the other hand the father, with the support of his partner, has demonstrated (in terms of the father more recently perhaps) a child-centred approach and I am confident that they will facilitate a relationship between the child and her mother.
The mother’s evidence is that she will accept the decision of the Court. I have some doubts as to her ability to do so having regard to her evidence and that of Dr K and Mr P.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Mr P made it clear in his evidence that the change in residence will impact upon the child, which is clear. Equally he said that he was of the view that the child would manage the change.
If the child is moved from the primary care of the mother to the primary care of the father, she will still spend significant time with the mother, N and possibly A. The evidence of Mr P, which I accept, is that there would need to be a period of adjustment for the child but that adjustment period could be managed. He said this in the light of the father and the father’s partner being capable carers of the child (and I accept that evidence).
Having regard to the approach adopted by the father’s partner to date, I am confident that she will facilitate the change and manage the emotional impact upon the child.
I also accept Mr P’s evidence that the greater need of adjustment would be that of the mother. He said the mother would go through resentment, and may attempt to take the child hostage and may deal with her own needs rather than those of the child. In the light of all of the evidence, I accept that this is a realistic possibility.
Leaving the position as it is, that the child remains in the primary care of the mother and spends time with the father, is fraught with the problems I have already raised earlier in these reasons.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

There are no issues about practical difficulty and expense in the child spending time with either parent or living with either parent, at least in a geographical sense.
If the mother moves closer to her parents’ home, this could bring about a geographic problem. However, such problems could be overcome as all parties have access to motor vehicles.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

I have dealt with the capacity earlier in these reasons and it is clear that both parents are capable of meeting the physical and intellectual needs of the child. However, there is an issue as to whether the mother can meet the emotional needs of the child to have a relationship with the father. I am satisfied that the father, with his partner, have the capacity to meet the emotional needs of the child in a far better way than that displayed by the mother at the present time.
The father raised issues about the child’s diet. This is not a major issue. I am concerned about the father’s failure to endeavour to re-contact the child over a period of almost two years. However, the impact of his partner has been both effective and positive. The father has not provided a good level of financial support for the child despite his ability to do so. This has at some level weighted against the proposed change in the primary care arrangements.
As for the mother, I reiterate that I do not accept that she will in any meaningful way facilitate a relationship between the child and the father. I am concerned that she will endeavour to circumvent that time and communication.
I am concerned that she will continue to endeavour to impose her negative and possibly destructive views of the father on the child.
The mother’s evidence is that she will accept the decision of the Court. I have some doubts as to the veracity of her evidence in that respect having regard to her approach to the evidence of Dr K and Mr P.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

I have considered all aspects of the relationship between the child and her respective parents, Mr H and the father’s partner.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right

This is not a relevant consideration in these proceedings.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The mother has sought to exclude the father from the child’s life and has reinforced memories of an alleged abuse. I repeat all the matters which I have addressed elsewhere in these reasons.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

The mother raised an issue of the father’s violence and use of a gun with his brother after the events of August 2007. The father’s behaviour at that time was poor and his abuse of alcohol as part of his coping mechanisms reflects badly upon him. I am satisfied that the gun was displayed and has been handed into the police by either the father, his mother or his brother. I am not satisfied, on the evidence before me, that the child is at risk of violence in the care of the father, whether as primary carer or having regular unsupervised time with the child.
The mother appears to be in a relationship with Mr H. Mr H has a violent history and was violent to A in the twelve months prior to the commencement of the hearing and has been threatening to the father’s partner and her children.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Unfortunately, this is a case where if I adopted the view that the child live primarily with the mother, it would almost inevitably lead to further litigation in one form or another. Equal time is not a viable option and I accept the evidence of Mr P in that regard. The alternatives are that the child live primarily with the mother and spend regular time with the father or live primarily with the father and spend regular time with the mother.

Section 60CC(4) of the Act

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The father failed to spend time with the child after the allegation was made. Much of that time could have been used if the father had coped better. I have had regard to that circumstance.
The father has not paid child support at a level which he may otherwise have paid. I have had regard to that circumstance.
The mother has taken every opportunity to reduce the time the child has with the father and to reduce the child’s contact with the father. This has been particularly the case since August 2007.
I have had regard to the written submissions and oral submissions of all of the parties and the Independent Children’s Lawyer. Counsel for the Independent Children’s Lawyer submitted that the child should live primarily with the father. Her concern was such that she suggested that I ought to take that step at the conclusion of submissions.
There remained an issue about whether the child should attend V Public School or S Catholic School. The child thrived at V Public School and that is evidenced in her school reports which were tendered to me. The father’s partner’s children now attend V Primary School.
As I have said earlier, I am satisfied that removing the child from that school was to distance her from the father, his partner and her family. I see no reason why the child should not continue at V Public School, and having regard to the child’s success at that school, that she is known and has school friends at V, there are positives in her returning to that school.

Conclusion about time

I have considered and evaluated the facts, findings and circumstances and I have considered those matters in light of the factors under s 60CC of the Act. I am satisfied that this is one of those cases where a child should be moved from the status quo into the full time care of the father.
I intend to make orders to that end. Having regard to the evidence of Mr P about the impact of this on the mother and her reaction, I have structured a re-introduction of the child to the mother over the remainder of term one.
I had contemplated requiring a supervisor, however, the impact of that may well have been to prevent a re-introduction. Accordingly, I will not adopt that course.

Equal shared parental responsibility

The parties have an appalling relationship. The parties have been unable to communicate and the mother is bitter and angry towards the father.
I have had regard to the evidence of Mr P and the events that have occurred since separation particularly August 2007.
Having regard to all of the factors and the circumstances of this case, it would not be appropriate to put in place equal shared parental responsibility. It would mean that no decisions would be made.
I propose to provide that the father have sole parental responsibility but that he consult and inform the mother of any exercise of that responsibility.
In terms of time, I will adopt the submissions made by Mr P in terms of a build up of time between the mother and the child. I intend to make orders that the father retain the child and the mother see the child, with N, for half a day on a weekend for the first few weekends and then build up to each alternate weekend from the end of school on Friday to commencement of school on Monday or Tuesday if the Monday is a pupil-free day, for half of the school holidays, half of Christmas Day, Mother’s Day and other special occasions.
I had considered making an order that the mother have professional support in managing the change of residence. However, I have determined that that is a matter for the mother and I will not impose it as a condition precedent to her spending time with the child.
In these reasons, I have determined that the child is not at an unacceptable risk of abuse in the care of the father. I am conscious that the Queensland Department of Child Safety has accepted the mother’s version of events and treats the child as safe in the care of the mother. Accordingly, I have directed that the Independent Children’s Lawyer forward to the Department a copy of these reasons, the orders, the reports of Dr K and the reports of Mr P.

I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 February 2011.

Associate:

Date: 16 February 2011.

[2011] FamCA 65

16 February 2011

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