Silk and Hopgood and Ors

[2008] FamCA 1262

FAMILY COURT OF AUSTRALIA

SILK & HOPGOOD AND ORS [2008] FamCA 1262

FAMILY LAW – CHILDREN – Best interests – With whom a child lives

APPLICANT: Mr Silk

FIRST RESPONDENT: Ms Hopgood

SECOND RESPONDENT: Ms Silk

INTERVENOR: Director-General Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: PAF 1482 of 2005

DATE DELIVERED: 29 April 2008

PLACE DELIVERED: Parramatta

JUDGMENT OF: FLOHM J

HEARING DATE:

23-27 & 31 July 2007 and

4, 5, 6 & 11 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE FIRST RESPONDENT: MS BLACK

SOLICITOR FOR THE FIRST

RESPONDENT:

MR NAIDOVSKI

COUNSEL FOR THE SECOND

RESPONDENT:

MS DRUITT

SOLICITOR FOR THE SECOND

RESPONDENT:

MR MORLEY

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MR KENNY

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: MS MAGEE

COUNSEL FOR THE INTERVENOR: MR LEVY

SOLICITOR FOR THE INTERVENOR: CROWN SOLICITOR’S OFFICE

Orders

1. That the order made in accordance with paragraph 2 of the document entitled “Terms of Settlement” annexed to the Orders made by this Court on 27 July 2007 is hereby discharged.

2. That Ms Silk is to have sole parental responsibility for decisions relating to the major long-term issues for B born … May 2000 (“the child”).

3. That the orders made in accordance with paragraphs 4 and 5 of the document entitled “Terms of Settlement” annexed to the Orders made by this Court on 27 July 2007 and Orders 1 to 10 inclusive made on 31 July 2007 are hereby discharged.

4. That Ms Hopgood (“the mother”) is to spend time with the child as follows:

   (a)For a period to be determined by the Director General of the Department of Community Services (“DOCS”) but to be not less than 3 months and not more than 6 months from the date of these orders:

   (i)Each alternate Sunday between 10.00am and 5.00pm to occur on the Sunday when the child is not spending time with the father pursuant to Order 5 hereof.

   (ii)One weekday afternoon for 2 hours at the DOCS office at D.

   (iii)On such further or other occasions as DOCS may approve including special occasions such as Mother’s Day, birthdays and Christmas celebrations.

   (iv)By telephone between 5.00pm and 6.00pm on any 2 days per week other than Tuesday.

   (b)If required by DOCS the mother’s time pursuant to Order 4(a)(i) is to be supervised by a supervisor approved by DOCS.

   (c)After the period set out in Order 4(a):

   (i)Each alternate weekend from 10.00am Saturday until 4.00pm Sunday, to occur on the weekend when the child is not spending time with the father pursuant to Order 5 hereof;

   (ii)By telephone between 5.00pm and 6.00pm on any 2 days each week other than Tuesday;

   (iii)On such further or other occasions as may be agreed between the mother, Ms Silk and DOCS and those three parties are urged by the Court to reach agreement which enables the child to spend some period with the mother on Mother’s Day, Christmas Day or other day during the Christmas festive season and the child’s birthday, and for a period in each school holiday period which is additional to the weekend periods referred to in 4(c)(i) hereof.

5. That Mr Silk (“the father”) is to spend time with the child during the following periods and he is to have sole responsibility for decisions as to the child’s daily care during those periods:

   (a)Each alternate weekend  from after school on Friday or after bowling on Friday, if relevant, until 4.30pm on Sunday commencing on the first Friday following the making of these Orders.

   (b)From 10.00am until 4.00pm on Father’s Day in each year.

   (c)For a period of time on each of the children’s birthdays and on the father’s birthday as agreed between the parents and failing agreement as follows:

   (i)If a school day, from 4.00pm until 6.00pm;

   (ii)If a non-school day, from 1.00pm until 4.00pm.

   (d)From 4.00pm Christmas day until 4.00pm Boxing Day each year.

   (e)On such further occasions as may be agreed between the father, Ms Silk and DOCS.

   (f)By telephone each Monday and Wednesday between 6.00pm and 7.00pm.

   (g)That for 12 months from the date of these Orders in the event that the father wishes to vary his time with the child as provided for him in these Orders then the father is to first contact DOCS to request that variation and the father is hereby restrained from contacting Ms Silk in relation thereto unless DOCS and Ms Silk agree to his doing so.

6. THE COURT NOTES that it is the intention of the father and Ms Silk that their children P and T spend time with the father at the same time as B.

7. That the mother, the father and Ms Silk are each hereby restrained from:

   (a)Denigrating each other or any members of the other’s household or allowing the child to remain in the hearing or presence of any other person who is doing so;

   (b)Discussing these proceedings and any allegations made against any other person in these proceedings with the child;

   (c)Discussing the contents of any document, affidavit or expert’s report in these proceedings with the child;

   (d)Permitting the child to come into contact with Mr R, including contact by telephone.

8. That the following provisions apply to the implementation of the father’s time with the child pursuant to Order 5 hereof:

   (a)The father is to collect the child from and return the child to Ms Silk at the commencement and conclusion of his time with the child at the D Railway Station;

   (b)The father and Ms Silk are to ensure that no other adult is present at collection or return of the child.

9. That Ms Silk, the mother and the father are to keep DOCS and each other informed at all times of the following:

   (a)Of any intended change to their residential address no later than twenty-one (21) days prior to any change of address;

   (b)The names of any occupants of their respective homes;

   (c)Any medical issues or conditions affecting the child and requiring treatment by a doctor or at a hospital;

   (d)Any further or other information which DOCS may reasonably request;

   (e)Their landline and mobile telephone numbers.

10. That Ms Silk is to sign all documents and do all acts necessary to authorise the school at which the child may from time to time attend:

    (a)to furnish the father and the mother with copies of all school reports, notices and advices concerning the child and any activity involving the child;

    (b)to make available to the father and the mother order forms for school photographs of the child.

11. That the mother and the father are at liberty to attend all school events and activities for the child to which parents are ordinarily invited.

12. THE COURT REQUESTS DOCS to monitor placement of the child with Ms Silk and her time spent with all parties for 12 months from the date of these Orders.

13. THE COURT REQUESTS DOCS to assist in referrals to support professional services for Ms Silk and the child.

14. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.

16. That all outstanding applications are dismissed and removed from the Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1482  of 2005

MR SILK

Applicant

And

MS HOPGOOD

First Respondent

And

MS SILK

Second Respondent

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Intervenor

And

LEGAL AID COMMISSION OF NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

THE APPLICATIONS

1. The applications before the Court are by Mr Silk (“the father”), Ms Hopgood (“the mother”) and Ms Silk (“the stepmother”) of B born in May 2000 (“the child”). The Department of Community Services (“DOCS”) intervened and an Independent Children’s Lawyer (“ICL”) appeared for B.  Each of the five parties places before the Court proposals which each says is in B’s best interest.

THE RELEVANT BACKGROUND

1. There are a number of matters in dispute between the parties which will be addressed in the course of the judgment.  The essential background of the case is as follows.

2. The mother was born in 1982 and is 26 years of age.  The father was born in 1976 and is 32 years of age.  The stepmother was born in 1981 and is 27 years of age.

3. In June 1998 the mother and the father commenced their relationship.  That relationship lasted until July 1999 so that by the time of the child’s birth the parents were no longer living together.  When the child was a couple of weeks old she was removed from the mother by DOCS and placed in foster care for approximately seven months.  In January 2001 the child was returned to the mother subject to the mother attending courses and accepting community support to assist with her parenting skills. 

4. By 8 November 2001 the father and the stepmother, with whom he had commenced a relationship shortly after separating from the mother, had their first child P born in November 2001.  By April 2003 the mother was in a new relationship with a Mr E and at that time D was born from that relationship.  In February 2004 another child, T, was born of the relationship between the stepmother and the father.  In August 2004 the stepmother and the father married. 

5. In January 2005 B commenced kindergarten. On 27 August that same year the first indicators emerged that B may have been sexually inappropriately interfered with.  Certain statements were made by the child and certain aspects of her behaviour noticed.  The police and DOCS were involved and B underwent a physical examination.  Quite coincidentally, at the same time B was diagnosed by Dr A at Westmead Hospital as having Attention Deficit Hyperactive Disorder (“ADHD”) and a mild intellectual disability.

6. By 9 September 2005, B’s disclosure of sexually inappropriate conduct towards her had identified a man by his nickname, being the mother's new boyfriend Mr R.  In October 2005 the father made a unilateral decision not to return B to the mother's care.  He filed a Notice of Abuse in family law proceedings that were then already on foot. 

7. The child remained in the care of the father and his wife, the stepmother, for a period of almost 18 months.  On 4 March 2007 the father and the stepmother separated, the father moved out of that home, leaving B in the care of the stepmother.  At that time the stepmother’s household consisted of B, T and P.  That has remained B’s residence at the time that these proceedings commenced.

8. The mother's contact with B has, since the allegations were made by the child in relation to the mother's boyfriend, been arranged and supervised by DOCS.  The mother remained in a relationship with the man whom the child identifies as having interfered with her sexually.  That situation continued at least until the commencement of this hearing.

9. The father has commenced a new relationship with Ms O, who has two children from a previous relationship and who, at the time these proceedings commenced, is expecting the father's fourth child. 

10. During an adjournment which followed the first seven days of hearing, there was a change of circumstances.  The relationship between the mother and Mr R ceased and the relationship between the stepmother and a new boyfriend, Mr H, was consolidated (although prior to the adjournment he was, as they say, “on the scene”).  When the hearing resumed he was as yet not living as a permanent member of the stepmother’s household but was spending a great deal of time, including overnights there.  Mr H has two children aged 11 and 10 who visit him most weekends.

11. Another significant event occurred during the course of the adjournment. The father raised further allegations of sexual abuse of B, this time naming Mr H as the perpetrator. 

THE PARTIES' PROPOSALS AND THE ORDERS SOUGHT

1. The father filed an Amended Application for Final Orders on 27 September 2005.  The orders sought in that document are incorporated into this judgment.

2. At the conclusion of the hearing the father sought orders as set out in a document marked exhibit F1 and I incorporate the orders sought in that document into this judgment.

3. The mother filed a Further Response on 5 February 2008, and the orders sought in that document are incorporated into the judgment.

4. At the conclusion of the hearing the orders sought by the mother were the same as those sought by the ICL and DOCS, as set out below, save that the mother sought the immediate suspension of supervision of her time with B.

5. The stepmother filed a Response on 22 June 2007 and the orders sought in that document are incorporated into the judgment.  However, at the beginning of the last tranche of the hearing, following the father’s allegations against Mr H, the stepmother sought orders as set out in an Amended Response filed 4 February 2008 but by the conclusion of the hearing the stepmother once again supported the orders sought by DOCS and the ICL. 

6. At the conclusion of the hearing DOCS sought orders contained in a document marked exhibit I1 and that document is incorporated into this judgment. 

7. At the conclusion of the hearing the ICL supported, in general terms, the orders sought by DOCS.

THE PROCEEDINGS

1. The hearing ran for 11 days in total, in two parts.  It started on 23 July 2007 and concluded on 11 February 2008. The parties and relevant supporters in this somewhat complex matter gave evidence and were cross-examined.  At the conclusion of the first part of the hearing, with time constraints dictating an adjournment to hear the expert evidence, it was agreed between all parties that final residence orders for B should be made in favour of Ms Silk, B’s stepmother, with whom B and her siblings P and T had remained living since the stepmother and the father separated.

2. Final orders to that effect were made, together with interim orders for B to spend time with her father and her mother during the adjournment period.  In the case of the father, the interim orders provided for B to spend two out of every three weekends from Thursday to Sunday with him, and in the case of the mother for more restricted supervised periods, the supervision being arranged by DOCS.

3. During the adjournment period and following the final orders being made, the father raised allegations of sexual abuse of B by the stepmother’s new partner Mr H.  The allegations were based on disclosures attributed to B by the father, by his partner Ms O and by Ms L, a family friend.  DOCS and JIRT were once again involved with this complex family group and a very significant outcome of the new allegations was that the stepmother, the person in whose favour final residence orders had been made with the consent of all parties, withdrew her proposal to provide a home for B.  I understand her position; at the time she felt that the raising of the allegation against her new partner demonstrated the father's intention to harass and to continue to destabilise the stepmother’s household.

4. That was the situation when the hearing resumed this year:  the father was again seeking final residence orders in his favour and the stepmother was withdrawing her application for residence.  I cannot recall precisely the period that elapsed but within a short period of the hearing resuming the parties were provided with an updated report by Dr Q, the Family and Child Psychiatrist, who had been involved with assessing this family in the preparation of what I believe was either three or four reports.  Upon receipt of the most recent updating report from Dr Q, the stepmother changed her mind and once again was proposing herself as a resident parent of B.  Accordingly, as the hearing resumed, the stepmother was seeking that all parties abide by the final consent order for residence of B made in her favour but months earlier, and the father was again seeking a final residence order in his favour.

5. Not surprisingly, DOCS and the ICL and the stepmother’s legal team sought to argue that the principles that arise in Rice v Asplund (1979) FLC 90-725 that the onus was on the father to demonstrate a sufficient change of circumstances that would persuade a Court that different final orders for residence should be made just months after that issue had been finally disposed of by consent.

6. As if there had not already been enough twists and turns in this case, during the course of the resumed hearing, albeit some substantial time into the resumed hearing, the father once again advised the Court that he was no longer seeking residence of B; rather he wished the Court to confirm the final orders to which he had consented in July 2007, ie. that B should remain in the care of the stepmother in the household she shared with her two siblings T and P.  In other words, the father was no longer pressing the allegations of sexual abuse against the stepmother’s partner.  No doubt he was assisted in reaching this conclusion not only by the supplementary report of Dr Q but also a fairly rigorous cross-examination of himself, of Ms O and Ms L on the issue of B’s alleged disclosures against Mr H.

7. A further development in the proceedings was that the mother's partner, Mr R, complaints about whose conduct towards B had hitherto been a significant issue in the proceedings, left that relationship and, prima facie, has removed that threat to B in the mother's household.  That has caused DOCS and the ICL to place before the Court a proposal whereby B could spend increased periods with the mother.  The ongoing monitoring of those periods sought reflect the ongoing concerns of DOCS and the ICL that each still do not have complete confidence in the mother's ability to protect the child.

THE MATTERS IN ISSUE BETWEEN THE PARTIES

1. The mother contends that the orders she now seeks are in B’s best interests because:

   1)She is now in a position to provide for B’s needs over extended periods, including weekends, without the imposition of any supervision.

   2)B’s wishes and attachments support the orders sought by the mother.

   3)There is no longer any risk to B of abuse in the mother's household.

   4)The mother has, with the assistance of DOCS, continued to acquire parenting skills and notwithstanding the mother's intellectual disability is now well equipped to provide B with a safe and secure “home away from home” over extended periods.

2. The father contends that the orders he now seeks are in B’s best interests because:

1)B is now accustomed to the frequency and duration of the extended weekend periods she spends with the father pursuant to the interim consent orders on 27 July 2007 made 7 months ago.

2)The child's wishes and attachments support the orders sought by the father.

3)The father continues to have the capacity to provide for all of B’s needs including a willingness to put into place orders which include P and T accompanying B during the periods she spends with the father.

1. It is contended that the orders sought by DOCS, the ICL and the stepmother are in B’s best interests because:

   1)The mother's improved parenting skills, and the reduction of risks in her household now make her a real contender for extended weekend contact in the near future and accordingly B needs to be provided with an opportunity to spend weekends with the mother, the adult to whom she is most closely emotionally attached.

   2)Unless there is some reduction in the frequency of the periods the child currently spends with the father, there will be little opportunity for B to spend any leisure periods with the mother, given that she attends school during the week.

   3)The father has demonstrated over the adjournment period that B has been subjected to pressure to complain about activities in the stepmother’s household and has been inappropriately questioned about the possibility of sexual abuse by Mr H.  Such conduct has resulted in a false allegation of sexual abuse made, but later withdrawn, against Mr H, which in turn has resulted in further intervention by the Child Protection agencies.  The continuation of such destabilising behaviour is clearly not in B’s best interests because it has already almost compromised the stepmother’s preparedness to provide B with a home with her sisters because of the harassment the stepmother feels has been directed towards her and her partner and the clear destabilisation of her household.

   4)P and T should be accompanying B when she spends time with the father, both to provide P and T with an opportunity to further develop their relationship with their father but also to remove from B the opportunity to be “centre stage” in her father's household, a role which may well be conducive to “attention seeking” statements.

   5)Although the father has, to date, demonstrated a capacity to provide for B’s physical needs the inclusion of P and T in B’s weekend and school holiday time with the father, together with the baby due to arrive in the father's household and the fact that Ms O has two other children from another relationship.  Albeit that their presence in the household at weekends will not always coincide with T, P and B’s visits, the future arrangements, including as they do an increase in the number of children in the father’s household at the same time provide challenges to the care and supervision of B which the father and Ms O have not yet demonstrated can be met.

THE RELEVANT LEGAL PRINCIPLES

1. I incorporate into this judgment the legal principles relevant to the determination which I must make.  That material includes reference to and a summary of the following Sections of the legislation:

   s 60B which is the section which deals with the objects of the part of the Act which deals with parenting orders;

   s 60CA which is the section which states that the child’s best interests are the paramount consideration in the making of a parenting order.

   s 60CC which provides guidance as to how a court determines what is in a child’s best interests, including primary considerations for the court and additional considerations for the court.

   s 61DA which provides for the presumption of equal shared parenting responsibility when making parenting orders and the circumstances in which that presumption may be rebutted.

   s 61B which explains the meaning of parental responsibility.

   s 65DAC and s 65DAE which deals with the effect of a parenting order that provides for shared parental responsibility.

   s 65DAA which deals with the obligation of the court in certain circumstances to consider a child spending equal time or substantial and significant time with each parent.

2. I turn now to the application of those legal principles to the facts in this case. 

THE PRIMARY CONSIDERATIONS

1. Firstly, I will deal with the Primary Considerations set out in s.60CC(2)(a) and (b).

(a)The benefits to the child of having a meaningful relationship with each parent.

1. B, like all children, will benefit from maintaining and further developing a meaningful relationship with each of her parents.  That is not an issue in this case.  It is not argued by any party that B does not have a close and loving and highly meaningful relationship with the mother and the father. 

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

1. The allegation of sexual abuse or the risk of harm from sexual abuse was a “live” issue in the proceedings whilst the mother was in a relationship with Mr R.  There is ample evidence before the Court that DOCS had valid concerns that the mother's impaired intellectual functioning resulted in a lack of insight into the risks to B and a lack of insight into the need for constant vigilance in relation to the conduct of other persons towards the child. 

2. That remains a residual concern for the Department: Although that concern is considerably lessened by the departure of Mr R from the mother's life DOCS will clearly continue to monitor the mother and her relationships and continue to support her in acquiring further strategies for good parenting of both B and her younger child D, who is now five.  The mother's neglect of B and her lack of insight into good parenting is clearly less of a concern to DOCS than it was at the beginning of these proceedings.

3. The allegations of sexual abuse against Mr H were raised by the father but withdrawn during the course of the proceedings.  There is now no allegation that there is any abuse or neglect to which the child is exposed in the stepmother’s household.

4. The real issue in these proceedings has now emerged following the adjournment.  It was a non-existent issue prior to the adjournment. That is, the father's capacity to provide for B’s emotional needs given the new allegation of sexual abuse he raised, and the manner in which that allegation was managed by the father.  It has been described, and in my view accurately described, as emotionally abusive behaviour.  The definition of abuse in the Family Law Act does not include emotional abuse and it is therefore irrelevant to any discussion pursuant to this subsection.  It will be discussed later in the judgment. 

5. In accordance with the requirements of s.60CC, I treat those two considerations as the primary or most important considerations.

6. Next, I will deal with the Additional Considerations set out in s.60CC(3).

s 60CC(a):    The Child’s Views:

1. Dr Q has prepared a number of reports on B’s family and there is no doubt that B has maintained a wish to live with her mother.  Looking at the overall evidence in relation to B’s wishes there is nothing in the expert or lay evidence to suggest that B, given that she is not able to live with her mother with whom she would prefer to live, has any aversion to either the current arrangement whereby she lives with the stepmother and her sisters or the frequency and duration of the time she spends with her father. Indeed it would appear that this child is accepting of the current arrangements albeit that she cannot have her wish to live with her mother.  I am of the view that that acceptance is very much bound up in the fact that she sees her mother regularly, albeit not for extended periods.

s 60CC(b):    Nature of the relationship of the child with each parent and other persons.

1. This is not a real issue in these proceedings, everyone acknowledging that B’s closest emotional attachment is to her mother.  Nor is it argued that she does not have a close and loving relationship with her father and nor is it argued that her relationship with the stepmother, albeit that there are no biological tie between them, is other than an affectionate relationship.  There seems to be a further general acknowledgement that B has a good relationship with her sisters P and T and with Ms O and her two children as well as with her maternal grandmother.  There is also nothing to suggest that she has a good relationship with D.

s 60CC(3)(c) – Each parent’s willingness and ability to encourage the child’s continuing relationship with the other parent.

1. There is no doubt that there is an uneasy and mistrustful relationship between B’s mother and the father based on their past history of the allegations and counter allegations made, including the father’s allegation of sexual abuse of B by the mother's then partner Mr R.  However this is a case where neither biological parent will be the primary resident parent of B and accordingly the opportunities for B to spend time with each of them will not be governed by the willingness and ability of either the father or the mother to provide B with that opportunity.  That will fall to the stepmother with whom B will continue to primarily reside and who will be making B available to each of her parents in accordance with orders made by this Court.

2. The mother's domestic situation will continue to be monitored by DOCS and DOCS too will have some input into whether or not any risk factors emerge in the mother's domestic arrangement. It goes without saying that DOCS’s role in monitoring the mother's domestic situation will be carried out in an appropriate and child focused manner.

3. I am satisfied that the stepmother has a willingness and ability to provide B with the opportunities to spend time with each of her parents in accordance with Court orders.  As referred to earlier, the stepmother has been the “moving party” in obtaining Court orders which include T and P accompanying B to the father's home on weekends.

s 60CC(3)(d) – The effect of a change to the child’s circumstances.

1. B has lived with the stepmother and her sisters P and T for a number of years now.  In that time she has had regular contact with her father and regular, albeit more restricted and supervised, contact with her mother.  Whatever orders are made at the conclusion of this hearing that situation is not going to change significantly.  By that I mean that although there may be some reconfiguration of B’s weekends with a more equal sharing between mother and father and accordingly there may be some reduction in frequency and even the duration of the time she spends with her father, whatever the outcome B will continue to live with the stepmother and see her parents regularly.

s 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with both parents.

1. This section is not relevant to these proceedings. 

s 60CC(3)(f) – The capacity of each parent and other relevant persons to provide for the children’s needs. 

1. As for the father's capacity, there is no suggestion that he does not have the capacity to provide for B’s physical needs.  His accommodation is appropriate and the supervision he provides is appropriate. There is no complaint about his physical care of the child.  I note however that T and P are going to join B when she spends time at the father's home and that there is soon to be a new baby in that household as well as Ms O’s two children from a former relationship who live there.  The father’s household is going to be much more crowded in the future and whilst it may be that this will place added pressures on Ms O and the father in relation to the organisation of their household but I am satisfied that it is unlikely to impact negatively upon the father's ability to provide for B’s physical needs on weekends and during school holidays.

2. The issue of B’s intellectual needs is not an issue in these proceedings as she will be living with the stepmother during the school week.  There is no doubt that all the adults in these proceedings have to varying degrees some intellectual difficulties and there is no doubt that any school that B attends will probably need to offer her extra assistance.

3. As to the father's capacity to provide for B’s emotional needs, he had, until the most recent adjournment, demonstrated himself to be quite an insightful and sensitive parent in relation to B.  However he far too quickly jumped to the wrong conclusion in relation to any abuse of B by Mr H which in turn resulted in a somewhat tumultuous period for B.  Once again B was exposed to the intervention of Child Protection authorities and once again placed at the centre of a conflicted situation between two of her carers.  The father says it was entirely his own decision to take the action he did in relation to the alleged abuse by Mr H and urges upon the Court not to blame either Ms O or Ms L for any role they may have played of a mischievous nature.

4. I am not entirely convinced that Ms L has not been something of a “stirrer” in the events of January 2008, and indeed I note that she was also involved in disclosures made by B about sexual abuse by the mother's then partner Mr R.  The preponderance of evidence and the focus of the resumed hearing has been the conduct of the adults in the father's home in their inappropriate handling of the statements attributed to B about abuse by Mr H.  I have no doubt that the father will be very well aware of the damage this has done to B resulting as it has, albeit temporarily, in a withdrawal by the stepmother of any proposal for B to remain in her household.  That was potentially an extremely serious outcome for B and one which was not at all in her best interests. 

5. Fortunately that situation has been salvaged and I hope that the father is now well aware that any future efforts to destabilise the stepmother’s household, and particularly the care she provides for B, is likely to result in the father's time with B being either suspended or very severely circumscribed by supervision etc. Quite frankly, I do not think the father thought through the consequences for both B and himself of his approach to the child's statements in January this year and because of his compromised level of intellectual functioning, which has been identified clearly in Dr Q’s reports, he may not have the insight to avoid a repeat of the situation.  He is, however, clearly on notice by the submissions made by DOCS and the ICL and the findings made by the Court that any time he is to spend with B in the future will depend on him demonstrating a capacity to meet her emotional needs and to put into perspective any statements made by a child who has been for some time the centre of attention in his household and a child who is well aware of the impact upon, and the reaction of, adults to whom she makes complaints.

6. The mother's capacity to provide for B’s needs did not really feature greatly throughout the proceedings.  It has been acknowledged from the beginning that the mother is intellectually developmentally delayed and the level of her mental functioning means that she has been unable to identify risks to B whilst the child has been in her care.  The mother has failed to understand the need to protect B and has never really been able to acknowledge that Mr R, now said to be a former partner, may have posed a risk to B.  Although Mr R is now said to be gone from the mother's life, that has occurred relatively recently and there are still concerns raised by DOCS about future romantic associations the mother may form. 

7. Is it for these reasons that despite the mother's proposal that the Court make no orders for future supervision of her time with B, including the somewhat unstructured supervision proposed by DOCS and the ICL that DOCS, supported by the ICL, intend to maintain a role in monitoring the mother's parenting, not only of her youngest child D but also of B.  It is acknowledged that the mother will be assisted by B’s maternal grandmother who has demonstrated herself to be very supportive of her intellectually disabled daughter.  I am of the view that DOCS’s role remains important and that the decision about supervision of the mother’s time with B remains in the hands of DOCS. There is also evidence before the Court, reflected in the orders sought by DOCS and the ICL, that the mother is gradually acquiring better organisation and parenting skills and there is no reason to think that with time these will not continue to improve. 

8. The stepmother has demonstrated herself to have the capacity to meet all of B’s needs, although it is clear that her commitment to B wavered when an allegation of abuse was made against her new partner.  Obviously, she saw this as the beginning of a series of destabilising events and no doubt assumed that whilstever B lived with her there was going to be ongoing complaints from the father about her care and protection of B. 

9. Whilst one could understand the stepmother reconsidering whether or not her willingness to provide the full-time care of a child with whom she has no biological connection, may not be worth the impact that has upon other members of her household, and no criticism is made by the Court of the stepmother’s reaction to the father's complaints, I must nonetheless take into account that the stepmother did withdraw her proposal that B remain permanently in her care. Whilst to say that her commitment to B is tenuous or fragile is putting it too high, it seems that in the orders I make I must take into account that the stepmother may not always be willing to provide for B’s primary care.

s 60C(3)(g) – Issues relevant to cultural and lifestyle background of the child and the parents.

1. B’s special needs have been discussed elsewhere in this judgment.

s 60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.

1. This section is not relevant to these proceedings. 

s 60CC(3)(i) – The attitude of each parent to the responsibilities of parenthood.

1. This is a case where, in my view, the usual standard applied when assessing whether or not a parent, or other person, has demonstrated a responsible attitude to parenting must be approached somewhat differently.  Dr Q has done a number of reports in these proceedings and is clear on her very thorough assessment of each of the adults involved that there is, as I have mentioned earlier in the judgment, a level of reduced intellectual function to varying degrees in the father, the mother and the stepmother. Each adult has, no doubt, had their own hurdles to overcome throughout their own schooling, adolescence and now adulthood and it is to the credit of each that they have been able to take the responsibility they have taken for the care and protection of B and their other children.  They are perhaps not quite as able as others to understand B’s needs and to provide for them at all times.  This is a very significant matter in my assessment of the adults pursuant to this subsection.

s 60CC(3)(j) – Family violence involving the child or child’s family member.

1. Given the issues remaining for determination, this is not a relevant issue, nor is s 60CC(3)(k).

s 60CC(3)(l) – Order to avoid further litigation.

1. As to (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, I am not sure what lies ahead for B.  I hope the father has gained some insight from these proceedings in relation to the ramifications for B, and indeed for himself, if he does not carefully think through the consequences before raising allegations which criticise the care and protection provided for B by the stepmother.  Much of the success of any future parenting arrangement depends on the father's understanding of the consequences of inappropriate handling of statements made by B which are, in one form or another, bound to continue given that she is a child well aware of the adult conflict and no doubt has divided loyalties.

2. Further, whilst I am satisfied that the stepmother is currently committed to caring for B I have no doubt that she will not remain so if and when she comes to the view that her providing care of a child who is not her own is simply not worth it if it impacts negatively upon her household and other family members including her own children. Accordingly, I am of the view that the orders I make are no more or less likely to avoid further litigation than other orders sought.  There are too many questionmarks over future events.

s 60CC(3)(m) – Any further relevant factors or circumstances.

1. I have already referred to the special needs of each of the parents which are well identified by Dr Q as indeed are B’s own special needs. Dr Q’s evidence on these issues are incorporated into this judgment.

s 60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.

1. This has been covered earlier in the judgment and I do not intend to say any more about this matter.

s 60CC(4A) – The circumstances since separation.

1. There are no circumstances either since the father's separation from the mother or the stepmother that have not been covered in the chronology of significant events referred to earlier in the judgment. 

s 61DA          The presumption of equal shared parental responsibility when making parenting orders.

1. When the final consent orders were made in July 2007 it was agreed by all parties that the father and the stepmother would be the two adults who would, in the future, have equal shared parental responsibility for B.  However since then the relationship and the level of communication between the stepmother and the father has deteriorated markedly because of the recent allegations of sexual abuse against Mr H.  It is no longer a viable proposition that these two carers equally share the decision making role in relation to the major issues for B and any attempt to do so will, I am satisfied, not only fail but will lead to conflict in which B will inevitably be embroiled.  It is not in B’s interests that that occur.

2. Accordingly, I intend to make a sole parental responsibility order in favour of the stepmother.  That course is proposed by DOCS, by the ICL, by the stepmother and by the mother. 

65DAA          Requires the Court to consider whether a child spends equal time or substantial and significant time with each parent in certain circumstances.

1. In the absence of any order for equal shared parental responsibility I am not required to consider equal or substantial and significant time with each parent.  In any event there is an overriding issue in this case:  B’s time has to be divided between three households.

SUMMARY AND CONCLUSION

1. I intend to make the orders generally sought by DOCS, the ICL and the stepmother, and supported to some degree, but not entirely, by the mother.  Whilst in accordance with that general proposal I intend to reduce the frequency of the father's time with B to accommodate the mother commencing alternate weekend periods with B, I do not intend to reduce the duration of the time B spends with her father to the extent proposed by DOCS and others.  Whilst I understand the reasoning behind the reduction, which has already been referred to earlier in this judgment, I must also take into account that if both the frequency and the duration of the time B spends with the father is reduced drastically, her time in the father's household may not be consistent with the smooth transition of B to that household in the future, an outcome made possible by the stepmother’s tenuous commitment to providing B’s ongoing primary care.

1. Pursuant to the orders I make, and assuming that the mother's time with B does move to a full alternate weekend, it is true that B will not have any weekend time in the stepmother’s household.  However, despite the father's request I do not intend to make any orders for defined school holiday periods with each parent; that will provide B with the opportunity to spend extended non-school time with the stepmother, T and P.

2. It has been proposed by DOCS that appropriate supervisors of the mother's time with B should be determined by DOCS. It has also been proposed that DOCS acknowledge that B’s maternal grandmother and the paternal grandmother of the mother's youngest child D are suitable supervisors.  B’s maternal grandmother is opposed by DOCS and the ICL as a supervisor on the basis that when she gave evidence in these proceedings she was still having some contact with Mr R and did not believe that he had posed a risk to B in any way.  There is clearly some force in that argument.  I am of the view that the most appropriate thing to do is allow any order for the identity of any supervisor to remain non-specific taking into account, as I do, that DOCS is well aware of the existence of these two grandmothers and their potential as supervisors.  Any strengths and weaknesses of the grandmothers in fulfilling that role will be well known to DOCS.  I am satisfied on this issue that DOCS has demonstrated a genuine commitment to supporting the mother in spending time with B and I am satisfied on the evidence before me that DOCS will take an appropriately flexible approach to this matter, always bearing in mind that B’s protection is paramount.

3. Taking into account all the evidence before me I am satisfied that the following orders are orders which are in B’s best interests.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm

Associate: 

Date:  14 October 2009