Simon and Peters & Ors (No 2)

FAMILY COURT OF AUSTRALIA

SIMON & PETERS AND ORS (NO. 2)

[2013] FamCA 1104

FAMILY LAW – CHILDREN – With whom a child lives and with whom a child spends time – Best interests of child.

FAMILY LAW – CHILDREN – Family violence – Risk.

Family Law Act 1975 (Cth)

Aldridge & Keaton (2009) FLC 93-421

Malcolm & Munroe (2011) FLC 93-460

Valentine & Lacerra & Anor (2013) FLC 93-539

M v M (1988) 166 CLR 69

APPLICANT:

Mr P Simon

1st RESPONDENT:	Ms Peters
2^ND RESPONDENT	Mr Peters
3rd RESPONDENT:	Ms West
4^th RESPONDENT	Mr R Simon

INDEPENDENT CHILDREN’S LAWYER:

Simone Wunderlich Agricola Wunderlich

FILE NUMBER:

MLC

9755

2012

DATE DELIVERED:	12 September 2013
PLACE DELIVERED:	Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

1, 2 and 5 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In Person
COUNSEL FOR THE 1ST RESPONDENT:	In Person
COUNSEL FOR THE 2^ND RESPONDENT:	In Person
COUNSEL FOR THE 3^RD RESPONDENT:	In person for the first day and thereafter no appearance
SOLICITOR FOR THE 4^TH RESPONDENT:	No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

That all previous parenting orders be discharged.
That the first respondent Ms Peters (“the first respondent”) and the second respondent Mr Peters (“the second respondent”) have equal shared parental responsibility for the child.
That the child M Simon born … 2009 (“the child”) live with the first respondent and the second respondent.
That the child spend time with the applicant, Mr P Simon (“the applicant”), as follows:
(a)Until the commencement of Term 4, 2014:
(i)     Each alternate weekend for a period of two hours, such time to be supervised by C Contact Service and upon that Service no longer being available, such time to be supervised by either:
(A)G Indigenous Centre; or
(B)The W Aboriginal Cooperative, City X;
(b)Upon the commencement of Term 4, 2014 as follows:
(ii)    On the first Saturday of each month from 10.00 am to 3.00 pm, the applicant to collect the child at the commencement of his time, and the first and/or second respondent to collect the child from the applicant at the conclusion of his time; and
(iii)     As may otherwise be agreed between the parties from time to time.
That the third respondent, Ms West (“the third respondent”), spend time with the child for a period of two hours each week at times to be agreed between the third respondent and the first and second-named respondents, such time to be supervised by C Contact Service and in the event that service is not available:
(a)G Indigenous Centre; or
(b)The first respondent or the second respondent.
That the fourth respondent be restrained from spending time with the child.
That each party be and is hereby restrained by themselves, their servants or agents from denigrating or criticising any other party in these proceedings in the presence of or hearing of the child, or allowing any other person to do so within the child’s presence or hearing.
That each party be and is hereby restrained from criticising the care arrangements for the child or discussing these proceeding or any disputes as between the parties or any of them in the presence of or hearing of the child, or allowing any other person to do so within the child’s presence or hearing.
That the first and second respondents do all such acts and things as may be required to facilitate the child’s attendance at the Royal Children’s Hospital Gatehouse Centre for Assessment of Child Abuse, for assessment and if recommended by that Centre, counselling.
That the orders for the appointment of the Independent Children's Lawyer be discharged.
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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9755 of 2012

Mr Simon

Applicant

And

Ms Peters

First Respondent

And

Mr Peters

Second Respondent

And

Ms West

Third Respondent

REASONS FOR JUDGMENT

The child M (“the child”) is aged four years and five months having been born in 2009. She has lived with the first and second-named respondents, Ms Peters and Mr Peters, since she was approximately five months old. Since that time, the child has been the subject of court proceedings, first in the Children’s Court of Victoria and since August 2012, in the Family Court of Australia.
This matter is both complicated and complex by virtue of the fact that there are four respondents plus the applicant and an Independent Children's Lawyer (ICL). There is a complex inter-relationship between the parties in these proceedings.

THE PARTIES

The applicant is Mr P Simon aged 53 years (“the applicant”). He is the paternal grandfather of the child. He is engaged in part-time employment. The applicant is Aboriginal and is involved in the W Aboriginal Community in regional City X. He lives in X with his wife, Ms Simon. It was the evidence of both the applicant and Ms Simon that they live separately under the one roof and have done so for a period of approximately five years. Their grandson J, aged 12 years, lives with them.
The applicant seeks orders that he have sole parental responsibility for the child M and that she live with him and spend time with the first, second and third respondents, her time with the third respondent to be supervised.
The first-named respondent is Ms Peters (“the first respondent”). She is aged 32 years and is a full-time homemaker. She and her husband, the second respondent live in Suburb N with the child M.
The second respondent is Mr Peters (“the second respondent”). He is aged 36 years and is engaged in full-time employment. The child has lived with the first and second respondents since she was aged five months. The second respondent has a child with M’s mother, the third respondent, namely B Peters, aged 14 years, who also lives in the household with the child and the first and second respondents.
The first and second respondents seek orders that they have equal shared parental responsibility for the child and that she live with them. They propose that the applicant spend time with the child for two hours once per month, such time to be supervised by C Contact Centre. Further they propose that the third respondent spend time and communicate with the child at times to be agreed, such time to be supervised by the G Indigenous Centre. They also seek orders that the fourth respondent spend no time with the child.
The third respondent is Ms West. She is aged 33 years and is M and B’s mother (“the mother”). She lives in Suburb Y and her occupation is noted in her trial affidavit as home duties. Her primary application is that she have sole parental responsibility for the child and that the child live with her and spend time with the first and second respondent and the applicant at times to be agreed. In the alternative, she proposes that she and the applicant have shared parental responsibility, that the child live with the applicant and spend time with her and the first and second respondent at times to be agreed. The mother sought no orders with respect to the child B, who also lives with the first and second respondents.
The fourth respondent is Mr R Simon. He is aged 27 years and is the child’s father (“the father”). Although named as the fourth respondent in these proceedings, the father took no active part in the proceedings. He has filed no documents and did not appear at the hearing. The father is currently incarcerated, having been convicted in or about September 2012 of a serious assault upon the child.
The child has two half-brothers, namely S, aged 10 years and T, aged eight years who are the children of the mother and Mr Z. Both T and S live with their father, Mr Z. Since the child M has been placed in their care, the first and second respondents have facilitated M spending time with her half-brothers by agreement with their father.

BACKGROUND

From the time of her birth until 12 September, 2009, when aged five months, the child M lived with the mother, the father, her half-sister, B, and her half- brothers, T and S.
On 12 September, 2009 the child came to the notice of the Department of Human Services (“the Department”) following her hospitalisation as a result of injuries sustained by her consistent with that of strangulation. Upon the Department’s involvement, M and B were placed in the care of the first and second respondents and T and S commenced living with their father. The child M has lived with the first and second respondents since that time.
Further examination of M upon her hospitalisation disclosed that she had sustained a broken clavicle two to three weeks prior, that is when she was aged approximately four months. Neither the mother nor the father were able to provide the Department with an explanation as to the cause of that injury.
The father was charged with offences relating to the assault on the child and in September 2012 was convicted in the County Court of Victoria with intentionally causing serious injury to the child. The father was sentenced to four years imprisonment.
On 14 September 2009 the child was made the subject of an interim accommodation order in the Children’s Court of Victoria. Between 3 December 2010 and 2 June 2011 the child was placed on a Custody to Secretary Order (“CSO”). On 5 May 2011 an application was made to extend the CSO. That application was contested by the applicant who sought orders that the child be placed in the care of her paternal grandparents. In July 2012 the CSO was extended for a period of one month to enable the paternal grandparents and the first and second respondents to make application to the Family Court of Australia seeking parenting orders.
On 3 August 2012 the applicant filed an application in the Magistrates’ Court of Victoria at City X seeking parenting orders. In particular he sought an order that the child live with him. That application was opposed by the first and second respondents who also sought orders that the child live with them.
On 8 August 2012 orders were made by consent on an interim basis in the Magistrates’ Court at City X which provided inter alia:
·That the first and second respondents have sole parental responsibility for the child.
·That the child live with the first and second respondent.
·That the child spend time with the applicant paternal grandfather as follows:
(a) From 9.00 am Monday to 11.45 am Tuesday in one week; and
(b) From 9.00 am Friday to 4.00 pm Monday in the alternate week.
On 30 November 2012 the first and second respondents filed an application in a case seeking a suspension of the applicant’s time with the child. The basis for that application were allegations that they had observed sexualised behaviour by the child and that she had made disclosures of sexual abuse by the applicant.
As a result of the alleged observations of sexualised behaviour and disclosures by the child, who was then aged three years five months, in or about late August 2012 the first and second respondent ceased facilitating time between the applicant and the child.
The Application in a Case of the first and second respondents was listed before Senior Registrar FitzGibbon on 4 December 2012. That day orders were made for the appointment of an Independent Children's Lawyer and various procedural orders, including an order assigning the matter as a Magellan matter. The matter was otherwise adjourned to 11 December 2012.
The interim application was then heard by the Senior Registrar on 11 December 2012 and 20 December 2012 and orders were made at the conclusion of that interim hearing which provide, inter alia:-
·That the previous orders regarding the applicant’s time with the child be suspended.
·That upon the undertakings of proposed supervisors to supervise time in accord with the orders, the applicant paternal grandfather spend time with and communicate with the child for up to two hours each week.
·That the child spend time and communicate with the third respondent mother each week for no less than two hours, facilitated and supervised by either of the first or second-named respondents at such times, days and places agreed between the mother and first and second-named respondents.
·That the issue of the fourth respondent father spending time or communicating with the child be reserved and he not do so without order of the Court first obtained.
Those orders have remained in force and the applicant has spent supervised time with the child since those orders were made. The mother objected to her time being supervised by the first and second respondents, and save for a few occasions when she attended during the applicant’s time, has had limited time with the child since August 2012.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The applicant relied upon:-
·Exhibit A1, being a hand-written Minute of Orders sought by the Applicant;
·His Amended Initiating Application filed 16 May 2013;
·His affidavit sworn and filed 13 May 2013; and
·Affidavit of Ms Simon sworn and filed 13 May 2013.
The first and second respondents relied upon:-
·Minute of proposed orders and a list of affidavits upon which they sought to rely, being Exhibit R1;
·Affidavit of Ms Peters sworn 4 February 2013;
·Affidavit of Ms Peters sworn 28 November 2012;
·Affidavit of Mr Peters sworn 26 November 2012 and filed 4 December 2012; and
·Affidavit of Ms O filed 4 December 2012.
The mother did not file a Case Outline nor provide to the Court a list of documents upon which she sought to rely. Although requested to provide a list of documents relied upon by her at the commencement of the hearing, as detailed below, the mother absented herself from the hearing during the morning of the first day of the hearing and thereafter took no further part in the hearing. Notwithstanding her absence, I note that she filed the following material in compliance with the directions of the Honourable Justice Cronin dated 26 March 2013 (which were extended by orders dated 14 May, 2013):-
·Response to Initiating Application filed 5 June 2013;
·Affidavit of the mother filed 5 June 2013.
The father filed no material in these proceedings and was not present in Court during the hearing.
The Independent Children's Lawyer relied upon the following documents:-
·Outline of case document dated 29 July 2013;
·Affidavit of Dr W, consultant psychiatrist filed 11 April 2013; and
·The Magellan Report of Dr P dated 19 June 2013 (“the Family Report”).
None of the parties was legally represented. As a consequence, at the commencement of the hearing I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Mr Combes for the ICL was very helpful. He agreed to go first in the cross-examination of each party so that he could cover some of the material, and that they could collect their thoughts as to any remaining questions. In addition, each of the parties as a result had the opportunity to experience how questions were to be properly framed.
On the first day of the hearing being 1 August 2013, the mother informed the Court that she had booked a flight to Perth scheduled to depart later that day. The mother was informed by the Court that the matter was likely to proceed beyond the day, that the matter may proceed in her absence, and that as a consequence, she may wish to alter her travel arrangements. Upon the resumption of the hearing after the luncheon adjournment Mr Combes informed the Court that the mother had indicated to him that she was leaving the Court to undertake her proposed travel to Perth. The mother was called but did not answer the call. The mother did not appear for the duration of the hearing and took no further part in the proceedings.

THE RELEVANT LEGAL PRINCIPLES.

Section 60B(1) of the Family Law Act 1975 (as amended) (‘the Act’) sets out the objects of Part VII of the Act, to ensure the best interests of children are met 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.
Section 60B(2) sets out the principles underlying the objects. They are that (except when it is or 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).
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is they seek orders with respect to:
(a)With whom the child is to live;
(b)With whom the child is to spend time; and
(c)The allocation of parental responsibility for the child.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, the applicant as a grandparent and the first and second respondents as persons concerned with the care, welfare and development of the child. The child has lived with the first and second respondents and has been cared for by them since September 2009. The applicant has spent time with the child both on an unsupervised and supervised basis since late-November 2009.
In determining the appropriate parenting order in this matter the best interests of the child is the paramount consideration (s 60CA). That this is so was confirmed by the Full Court in the decision Aldridge & Keaton (2009) FLC 93-421 wherein the Full Court in considering whether the 2006 amendments to the Act alter the principle that applied previously said this:
75.While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

Section 60CC sets out the primary and additional considerations for the Court in determining what is in the child’s best interests. The Full Court decision of Malcolm & Munroe (2011) FLC 93-460 confirms that those factors are relevant in proceedings involving parents and non-parents. More recently that position has been confirmed by the Full Court in Valentine & Lacerra & Anor (2013) FLC 93-539.
There is a presumption that it is in a child’s best interests for her parents to have equal shared parental responsibility for her (s 61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. I am satisfied for the reasons set out below that the child has been subjected to family violence when in the care of the mother and the father, and accordingly that the presumption is rebutted in this case.
A significant issue in this case is the allegation of the first and second respondent that the child has displayed sexualised behaviours and made disclosures of sexual abuse by the applicant. The correct approach in considering such allegations was considered in M v M (1988) 166 CLR 69. There the High Court made it clear that when the proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the court, of the child’s best interests. The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of a child.
At page 77 the High Court noted:
…there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring …and assessing the magnitude of that risk.
The High Court then considered how to define the magnitude of the risk with great precision and concluded that the test was best expressed by saying that a court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk of sexual abuse”.
The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Without limiting the matters that the court may take into account, s. 140(2) of the Evidence Ac 1995 (Cth) provides that in applying that standard of proof, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.

THE ISSUES

The issues in this case, as identified in the parties’ affidavits, the Family Report, and during the course of the hearing may be summarised as follows:-
·Allocation of parental responsibility;
·Whether the child has been sexually abused;
·Whether the child is at risk of harm in the care of parties;
·With whom the child lives;
·With whom the child spends time and whether such time should be supervised;
·The child’s right to know and enjoy her Aboriginal culture; and
·The importance of the child’s relationship with her half siblings and how such relationships will be supported or facilitated by each of the parties.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
As a general proposition, it is in a child’s best interests to have a meaningful relationship with her parents and other members of her extended family. However, for the reasons set out hereunder, I am satisfied that that proposition does not apply in this case.
It does not follow that because a parent has not as at the date of the final hearing had a meaningful relationship that it is not in that child’s best interests to have that relationship.
However, although both parents are named as parties to the proceedings, each by virtue of their conduct either prior to or during these proceedings has undermined their claim for the child to either live with them (as is sought by the mother) or spend time with them.
Although named as a party to the proceedings the father has filed no documents in the case nor has he engaged lawyers to represent him in these proceedings. The father did participate in the preparation of the Family Report and was interviewed by the family consultant, Dr P by telephone on 13 June 2013, for the purposes of the preparation of that report. At paragraph 78 of the Family Report, Dr P records that the father’s position is that he wants the child to live with his parents, and that he does not think the mother is “ready” to care for the child. Further, it is noted that he rejected the proposals put by the first and second respondents with respect to the child’s care on the basis that they did not want he or his family or the mother to spend time with the child.
Dr P indicates at paragraph 111 of the Family Report that she has significant concerns about the impact on the child of spending any time with the father. The evidence fully supports those concerns and I shall return to those concerns in detail hereunder. I am satisfied that in the circumstances there is no benefit to the child of a relationship with her father.
The mother absented herself from the hearing during the luncheon adjournment on the first day. She took no further part in the proceedings, presumably electing to travel to Perth as foreshadowed by her prior to the luncheon adjournment. Such action was taken notwithstanding the application of the mother that she have sole parental responsibility for the child and that the child live with her.
At paragraph 54 of the Family Report, Dr P notes that the mother is not currently seeing any of her four children, including M, due to her objection to being supervised. Further, the mother is not seeking any orders in relation to the child B, notwithstanding the fact that B lives with M in the home of the first and second respondent.
Even more significantly, during the course of the Children’s Court proceedings which commenced in September 2009 and concluded in July 2012, both the mother and the father were found to have failed to address the protective concerns of the Department and, as a consequence, reunification with either parent was not considered viable (Exhibit ICL -1, p 2).
In light of the manner in which the mother has conducted herself during these proceedings, her refusal to spend time with the child (and her other children) and the noted protective concerns of the Department, I have grave concerns as to her capacity to care for the child. Further, it is evident that the mother has little insight as to the impact of her behaviour upon the child. Accordingly, whilst I am satisfied the child would benefit from having a meaningful relationship with the mother, the issue for the Court is how such a relationship may be facilitated in circumstances where there are significant concerns as to the child’s safety when in the mother’s care.
Although the applicant sought orders that he have sole parental responsibility for the child and that she live with him, it was conceded by him during his evidence that in fact were the child to be placed into his care, it would be his wife, Ms Simon, who would be the primary care-giver for the child. That evidence was consistent with the observations of Dr P who at paragraph 29 of the Family Report noted “from the outset [Ms Simon] presented as the spokesperson for the pair”. She went on to note that Ms Simon was the person who responded to all interview questions until Dr P asked her to allow the applicant to respond. Further, Dr P confirmed that the applicant conceded at interview that Ms Simon would be the primary care-giver of the child if his proposal was successful.
At the heart of the applicant’s case was his concern that the first and second respondents did not support his concept of “family”, nor did they support the child’s knowledge and understanding of her Aboriginal heritage.
I have no doubt that the child would benefit from having a meaningful relationship with her paternal grandparents. At issue, is whether the paternal grandparents pose a risk to the child, whether by reason of the allegations made against the applicant or other factors which I will address later in this judgment and whether if there is a risk to the child that risk is “unacceptable”.
The first and second respondents have cared for the child since she was aged five months. The applicant does not criticise the manner in which the first and second respondents have cared for the child. His criticisms and indeed the basis for his application largely centre upon his view that the child should live with “family”, and his concern that the first and second respondent do not foster the child’s knowledge of and/or interest in her Aboriginal heritage.
At paragraph 80 of the Family Report, Dr P describes the child as a “confident, happy and social child”. It was noted both in Dr P’s report and confirmed in evidence by the first and second respondent and by the applicant that the child regards the first and second respondent as her “mummy” and “daddy”.
Dr P continues at paragraph 107 of the Family Report to note that the child’s primary attachment relationship is with the first and second respondent. It is her recommendation that the first and second respondent should maintain equal shared parental responsibility for the child and that she should continue to live with them and with her half-sister.
Having regard to the nature of the child’s relationship with the first and second respondent, as observed by Dr P and described by them, there can be no doubt as to the benefits to the child of her continuing to have a meaningful relationship with them.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In cases where there is inconsistency between the primary considerations under s60CC(2), the court is required pursuant to s 60CC(2A) to give greater weight to the considerations set out in sub-paragraph (2)(b) than to those in sub-paragraph (2)(a).
Having regard to the circumstances in which the child was placed into the care of the first and second respondents, and the provisions of s 60CC(2A), in my view priority should be given to protecting the child from harm.
Thus the extent to which the Court will seek to promote a meaningful relationship between the child and the mother, the first and second respondents and the applicant, is framed by the need to ensure the child’s safety.
The need to protect the child from physical and psychological harm is the central issue in this case.
The report from the Department dated 1 February 2013 (Exhibit ICL-1) documents the physical harm the child was subjected to whilst in the care of the mother and the father.
That report details the history of the Department’s involvement in the care of the child. At page two, the report states that the Department’s initial concerns related to the child being exposed to “excessive alcohol use, unstable mental health and aggressive behaviours by both her mother…and her father”. The report details a further notification the Department received on 12 September 2009 (when the child was aged five months) outlining concerns that the child had been assaulted and that her injuries were consistent with that of strangulation. During further medical assessment of the child it was determined that she had sustained a broken clavicle which was reported as being two to three weeks old, suggesting that the injury in fact occurred when she was four months old. The report notes that neither the mother nor the father were able to provide an explanation for that injury and it remains unexplained.
It is evident from that report that neither the mother nor the father sought medical treatment for what must have been a painful injury to the child who was then only aged four months.
The father was charged with intentionally causing serious injury and ultimately pleaded guilty to that charge. He is currently incarcerated and his earliest parole date is 14 November 2014.
The father, when questioned by Dr P in relation to the injuries caused to the child, maintained his innocence in relation to those injuries[1]. The father reported to Dr P that he knew what happened the night the child was strangled and further with respect to her partially healed clavicle that he did not know if it was accidental or intentional, but he knew who did it. When questioned further by Dr P, she reports that the father refused to elaborate, stating that he does not “lag” on people.
[1] Family Report, paragraph 71
In light of the father’s guilty plea and conviction, I am satisfied that the child was abused by the father.
The evidence of the applicant and Ms Simon, the father’s parents, in respect of these issues is almost as troubling as that of the father. When questioned by Dr P as to whether or not the father had in fact caused the child’s injuries, Dr P reports that she was left with the impression that neither the applicant nor Ms Simon fully accepts that the father was responsible for the non-accidental injuries to the child.
The applicant was cross-examined in relation to these matters by Mr Combes for the ICL. The applicant confirmed that he had spoken with the father in relation to the injuries to the child and that the father had told him what had happened. With respect to the child’s broken clavicle the applicant confirmed that the father had told him that third parties were in fact responsible for that injury. Whilst stating that if the child were to live with him he “wouldn’t let (the father) near” the child, it was the applicant’s evidence that in the aftermath of the child’s hospitalisation as a result of being strangled, the applicant facilitated the father spending overnight time with the child in his home in or about late-November 2009. Further, the applicant continued to take the child to visit the father in prison until orders were made by Senior Registrar FitzGibbon prohibiting such visits from occurring.
The evidence of the paternal grandmother, Ms Simon, was also concerning in relation to this aspect. During cross-examination by Mr Combes, the grandmother initially conceded that in the aftermath of the child’s hospitalisation and indeed on the child’s first overnight visit in her home in or about late-November 2009 the father had spent that night with the child in her home. When further questioned in relation to this matter the grandmother resiled from that position, denying that the father had in fact stayed overnight.
It was my impression that both the applicant and the paternal grandmother sought to downplay or minimise the events giving rise to the child’s placement with the first and second respondent. Such a response is incompatible with the applicant’s application that he have sole parental responsibility and that the child live with him.
In light of the evidence as to:-
(a)The father’s conduct towards the child; and
(b)The attitudes of the applicant and his wife towards that conduct
I have grave concerns as to the risk of the child being exposed to further violence if placed in the applicant’s care. Further, I am concerned that the applicant and his former partner may not act protectively towards the child and may cause her to be brought into contact with the father. It is my view that the applicant has little insight as to the seriousness of the events that caused the child to be placed into the care of the first and second respondents.
In addition to the family violence to which the child was exposed in the period prior to her removal from the care of her parents, is the allegation that she has been sexually abused.
In her affidavit sworn 28 November 2012 the first respondent deposes to the disclosures allegedly made by the child in April 2012, June 2012 and late-August 2012. Those allegations are contained in paragraphs six to 16 of that affidavit inclusive. In summary it is alleged that:-
(a)In or about mid-April 2012 the child when having a nappy change placed her index finger at the top of her vaginal area and when questioned as to what she was doing replied that “Poppa put his finger there”;
(b)In or about June 2012 the child was observed straddling the leg of a large teddy bear in her grandmother’s room and moving her body back and forth and rubbing her vaginal area on the bear; and
(c)In or about late-August 2012 the child was observed on her grandmother’s bed with her legs spread apart pushing a stuffed toy between her legs and when asked who does that replying “Poppa does that to me, …”.
The evidence of the first and second respondent is that following the disclosure alleged to have been made by the child in April 2012 they sought advice from the child’s case worker at the Department and were informed that when children are toilet-training it can be difficult to ascertain whether they are disclosing inappropriate behaviour. At that stage neither the first nor second respondent took any further action.
As to the second alleged disclosure in June 2012 the first respondent deposed that she did not take any action at that stage on the basis that such behaviour as was observed may simply have been innocent sexualised behaviour. Following the third alleged disclosure which occurred in late-August 2012 the first and second respondent reported their concerns to a psychologist who then reported the matter to the Department of Human Services. Subsequently, the first and second respondent informed the applicant that they were suspending the applicant’s time with the child.
The applicant denies any inappropriate behaviour by him towards the child. He denies the allegation that he has touched the child inappropriately. Further, he is critical of the first and second respondent for the delay in reporting their concerns, having first observed concerning behaviours in the child in or about April 2012.
There is no doubt that the allegations of sexual abuse have heightened the tensions between the applicant and the first and second respondent. When giving his evidence the applicant displayed anger and hostility towards the first and second respondents as a result of their conduct in making those allegations.
Dr P noted at paragraph 31 of her report that the applicant asserts that the first and second respondent have “put things in [the child’s] head”, teaching her to do those things (referring to the sexualised behaviours) and alleges that they have told the child to call him “Poppa” instead of “Poppie”. Further, Dr P notes that it is a view of the applicant that the allegations as to sexual abuse have been fabricated so as to exclude him from the child’s life.
Having heard evidence from the first and second respondents and observed them being cross-examined by Mr Combes and the applicant, I do not accept that view. Throughout their evidence, the first and second respondents presented as considered and measured; they appeared committed to the child having on-going relationships with both the applicant and the mother. Notwithstanding the original disclosures in April 2012, the first and second respondent continued to facilitate the applicant spending time with the child and indeed have facilitated supervised time since the orders of Senior Registrar FitzGibbon on 20 December 2012.

At paragraph 97 of the Family Report, Dr P notes that the applicant presented two hypotheses as to the child’s sexualised behaviour being:-
(a)That the respondents have taught the child to engage in sexualised behaviours and to refer to him as “Poppa” so as to “frame him” and exclude him from the child’s life; or
(b)That the second respondent may have acted inappropriately with the child and the child is referring to the second respondent by his childhood nickname, coincidentally “…”.
Mr Combes for the ICL cross-examined the applicant in relation to those two hypotheses. The applicant maintained when questioned that either the child had been put up to making the allegations because the first respondent had told her to do so or there would be “no Play School”. Alternatively, the applicant confirmed that the second respondent may be the perpetrator of abuse as the child calls the second respondent “…”.
I note the evidence of the second respondent in relation to that allegation. It was his evidence that the child refers to him as “Daddy”, that the name “…” was one used by his peers when he was in high school and that the person who had referred to him by that name on his Facebook page was a person with whom he had had no social contact for many years. That evidence is consistent with the observations of Dr P and the Department, both of whom observed the child referring to the second respondent as “Daddy”. I accept that evidence.
At paragraph 82 of the Family Report, Dr P observes that the child refers to the first respondent’s parents as “Nanny” and “Poppy”. During her observations of the child with the applicant and his wife the child was observed to refer to them as “Poppa and Nanna”[2]. Those observations of Dr P are entirely consistent with the evidence of the first and second respondent.
[2] Paragraph 91 of the Family Report
In addition to the two hypotheses proffered by the applicant to Dr P, the Department report (Exhibit ICL-1) discloses that the applicant made counter allegations against the second respondent, suggesting that he may have sexually abused the child when patting her to sleep during a period when she had trouble sleeping. Mr Combes cross-examined the applicant in relation to those matters and he confirmed that he held that view. The Department report discloses that the applicant and Ms Simon reported those allegations to the police, that no offence was detected and that no further investigation occurred.
In my view, the evidence of the applicant’s counter allegation against the second respondent is indicative of the antagonistic attitude he displayed towards him during the hearing. The counter allegations were baseless and improbable and reflect poorly on the applicant and Ms Simon.
Throughout his evidence, the applicant has steadfastly denied any inappropriate conduct by him towards the child. He denies the allegations of sexual abuse. Ms Simon also denied that there had been any inappropriate behaviour by the applicant towards the child. Further, each denied that they had observed any sexualised behaviour by the child.
At paragraph 98 of the Family Report, Dr P noted that “sexualised behaviours are not an uncommon response to trauma in childhood”, that such behaviour can be a means of self-soothing in response to significant stress, including exposure to family violence.
Both the applicant and Ms Simon admitted when cross-examined by Mr Combes that they had corrected the child when she referred to the first respondent as “Mummy”, directing the child to instead call her by her first name, and similarly directing the child to refer to the second respondent as “Uncle …” rather than “Daddy”. Further, the applicant admitted that he did not talk about the first and second respondent with the child in his home. The applicant also admitted that he had filmed the child and the first and second respondent at contact changeovers. The applicant appeared defensive and hostile when questioned in relation to these matters.
When questioned by Mr Combes as to the potential impact of such behaviour on the child , Dr P noted that such conduct can be traumatic and confusing for a child of M’s age and indeed may be a trigger for the type of self-soothing sexualised behaviour observed by the first respondent and her mother.
I accept the evidence of the first respondent and her mother as to the observed sexualised behaviour of the child. I also accept their evidence as to the disclosures made by the child. However, in the face of the denial of any impropriety by the applicant, coupled with the evidence of Dr P as to the possible causes for the observed sexualised behaviour and disclosures (such as the applicant and Ms Simon correcting the child when she refers to the first and second respondent as her “Mummy” and “Daddy” and the hostility between the parties at changeovers which included the applicant videotaping the changeovers), I am satisfied that on the balance of probabilities the applicant is not an unacceptable risk of sexual abuse.
However, the evidence of the applicant and Ms Simon as detailed above supports the view that the child has been exposed to behaviour in their care which may have traumatised her and triggered the observed sexualised behaviours. It is that behaviour which in my view supports the contention of the first and second respondents and the ICL that supervision of the child’s time with the applicant is warranted.
A further protective issue raised is the question of whether or not the mother’s time with the child should be supervised.
The ICL relied upon the affidavit of Dr W, Consultant Psychiatrist, filed 11 April 2013. Annexed to that affidavit are psychiatric assessments of the mother and the applicant. Dr W was not cross-examined by any party and accordingly, his evidence is admitted unchallenged. The mother was assessed by Dr W on 8 March 2013. At page nine of his assessment of the mother, Dr W concluded:-
In the absence of other comprehensive medical reports and on the history provided by [the mother], this examiner is strongly inclined to believe that she has essentially been suffering from a Bipolar Affective Disorder, characterised by repeated episodes of depression and two episodes of hypomania.
At page 10 he continues:-
Taking into account that this examiner does not have a complete history, as described above, as well as the fact that [the mother] is not under the care of a psychiatrist who is the appropriate medical specialist to assess and manage an individual with a disabling and distressing psychiatric medical illness of significant duration and severity and with complex measures of biological, psychological and social factors; there must therefore be some concerns regarding risk issues and her suitability as an appropriate care-giver at this point in time and until she has engaged in treatment with a psychiatrist, even if on an infrequent basis in conjunction with a treating general practitioner and mental health worker.
In her affidavit filed 5 June 2013 the mother asserts that she is under the care of a general practitioner, having had a recent admission to the D Inpatient Unit. She deposes that she intends to engage a psychiatrist on a regular and consistent basis for treatment[3]. Other than those assertions, there is no evidence of such treatment occurring and further, during interview with Dr P on 12 June 2013 (being one week after filing her affidavit), the mother reported that she was then “becoming unwell”[4].
[3]Affidavit of the mother filed 5 June, 2013, paragraphs 52 to 57.
[4] Family Report, paragraph 63
The conduct of the mother during the hearing and her decision to absent herself from the proceedings on the first day is consistent with her statement to Dr P that she was becoming unwell. Having regard to the evidence of Dr W as to the potential risk the mother poses to the child if left untreated, it is my view that any time between the mother and the child should be supervised.
The evidence of the applicant was that he would permit the mother to spend time with the child without supervision. Dr P noted at paragraph 32 of the Family Report that the applicant “expressed the view that [the mother] did not pose a risk to her children; this view appeared to be based on his experience of having never seen [the mother] appearing substance affected”.
Given the expressed attitude of the applicant as to the mother’s capacity to appropriately care for the child, the need for the applicant’s time with the child to be supervised is brought into sharp focus.
I now turn to the additional considerations in s 60CC(3) of the Act.
(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;
The child is too young for her views to be determinative. It is her attachment to the various parties in this case, as observed by Dr P, which is more important.
(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);
The child has not lived with either of her parents since she was aged five months. Since that time she has spent time with the mother on a supervised basis, usually at the home of the first and second respondent. Dr P observed the child with the mother and noted at paragraph 92 of the Family Report as follows:
[The child] appeared pleased to see her mother, though she did not return the hug and kiss that [the mother] bestowed on her.
The child has not spent time with the father since the orders of Senior Registrar FitzGibbon made 20 December 2012. Until that time, the applicant had taken the child to visit the father in prison.
Prior to the commencement of these proceedings the applicant spent time with the child largely by agreement with the first and second respondent. The applicant deposes in his affidavit sworn 13 May 2013 that from January 2012 he spent time with the child on a fortnightly basis as follows:-
(a)In week one from Friday until Monday afternoon; and
(b)In week two from Monday to Tuesday morning.
Pursuant to the orders made in the Magistrates’ Court at X on 8 August 2012 the applicant was to spend time with the child as follows:-
(a)From 9.00 am Monday to 11.45 am Tuesday in week one; and
(b)From 9.00 am Friday to 4.00 pm Monday in week two.
That arrangement continued until late-August 2012 when the first and second respondent suspended that time due to the disclosures of the child referred to above.
Dr P observed the child with the applicant and Ms Simon. At paragraph 90 of the Family Report, Dr P observed that the child appeared to enjoy their company, “talking excitedly and inviting them to play at the footsall table”.
Dr P observed the child to be “a confident, happy and social child”. At paragraph 81 of the Family Report, Dr P noted that when the child was asked as to who was in her family she replied, “Nanny, Poppy, Daddy, [B], Mummy”. The reference to Nanny and Poppy was a reference to the parents of the first respondent. Dr P asked the child if she knew someone called “Poppa” to which the child responded, “Yes” and stated that this was someone she saw at her playgroup, describing her play with the applicant.
The observations of the child with the applicant and Ms Simon by Dr P confirm that the child enjoys their company and is excited to see them[5].
[5]Family Report, paragraph 90.
The first and second respondents have been the child’s primary care-givers since her infancy. They are noted by Dr P as being the child’s primary attachment figures. At paragraph 89 of the Family Report, Dr P observed all interactions between the child and the first and second respondent to be “warm and familiar”.
Both the first and second respondent impressed as being committed and child-focussed. That the child is doing so well is a credit to the care they have provided to her since she was placed in their care in her infancy. It is evident from all of the material before the Court and I am satisfied that they have supported the child’s relationship with the mother and the applicant and further that they will continue to do so.
When pressed during cross-examination by Mr Combes, the applicant reluctantly conceded that the child “probably loves” the first and second respondents and would be devastated if she no longer lived with them. The applicant did not challenge the proposition that the first and second respondents were the child’s primary attachment figures.
Whilst the applicant was not critical of the physical and emotional care provided by the first and second respondents to the child, he demonstrated little insight as to the potential impact upon the child if she were to be removed from their care, they having been her primary carers since she was aged five months.
Dr P considered the impact upon the child if she were to be removed from the care of the first and second respondents at paragraph 107 of the Family Report. She there stated as follows:-
The primary developmental consideration for [the child] at age four is ensuring stability in her primary attachment relationships, in this case, with [the first and second respondents], and allowing adequate time for the maintenance of other secondary relationships, such as that of her biological mother and paternal grandparents. It is also generally accepted that the quality and viability of secondary attachment relationships are largely dependent upon ensuring the primary attachment relationships are not compromised in the process of maintaining those connections.
The child has lived with her half-sibling, B, since she was born, initially in the home of the mother and the father and since September 2009 with the first and second respondent.
During observation with Dr P, the child identified B as being a member of her family[6]. At interview with Dr P, the child B also spoke positively of her experience of living with the child M[7].
[6] Family Report, paragraph 81
[7] Family Report, paragraph 84.
Since the child has lived with the first and second respondents, she has spent time with her half-brothers, T and S, on average on a fortnightly basis[8].
[8]Family Report, paragraph 13.
As to his relationship with Mr Z, T and S’s father, the applicant admitted that he had not seen or spoken to him for “a long time”. When pressed by Mr Combes, he conceded that he had not spoken to Mr Z since 2010. Ms Simon confirmed that she had had no contact with Mr Z for more than one year.
Significantly, when the issue of the child spending time with her half siblings was raised by Dr P, the applicant did not present any proposal other than the children spending time together with the mother[9].
[9] Family Report, paragraph 33.
During interview with Dr P, the mother noted that her relationship with the Z family was “non-existant”[10].
[10] Family Report, paragraph 59.
As a result of the applicant’s evidence as to his relationship with the first and second respondent and with Mr Z, I have no confidence that if the child were to live with him he would support or encourage the child’s relationships with her half-siblings.
(c)the extent to which each of the child’s parents 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;
(c)(a)the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child;
(f)the capacity of each 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)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The applicant and his partner were cross-examined by Mr Combes as to why they had not sought to have the child placed in their care upon her removal from the care of the mother and the father following the assault upon her by the father. Both the applicant and Ms Simon gave evidence that they had had little involvement in the child’s life prior to the assault. The applicant gave evidence that he had seen the child either three or four times prior to the assault and further that when seen on those occasions he had no concerns for the child’s welfare. That evidence is given against the backdrop of the report of the Department (Exhibit ICL-1) which states that the initial concerns reported for the child related to her exposure to “excessive alcohol use, unstable mental health and aggressive behaviours by both her mother and her father”.
When Mr Combes put to the applicant that the child had been treated badly by her parents prior to her removal from their care and that the applicant had not noticed, the applicant gave evidence that “she seemed alright” and further noted that “babies cry”.
When it was put to the applicant that the Department had concerns as to the excessive alcohol, unstable mental health and aggressive behaviours of the mother and the father, the applicant stated that he knew that there was violence in the home but thought that this was between the father and a third party. He also stated that he knew there was violence in the home but did not think it was “that bad”.
That evidence highlights the concern that were the child placed in the applicant’s care on an unsupervised basis he would not have the insight or ability to act protectively to ensure that the child is not exposed to further violence.
The applicant’s evidence was that he was notified of the involvement of the Department approximately one week after the child was placed into the care of the first and second respondents. Neither the applicant nor Ms Simon took any steps at that time to have the child placed into their care.
Ms Simon, when questioned as to why she did not seek that the child be placed in her care after the assault, stated that she did not apply as this was not needed as the mother was seeing the child overnight. She also stated that she had already raised one grandchild. It was evident from her responses to those questions that the witness was placing her needs above those of the child.
When questioned by Mr Combes, Ms Simon agreed that the first and second respondents were able to look after the child and acknowledged that the first respondent “loves ([the child]) like her own”. Ms Simon stated that the issue, from her perspective, is that the first and second respondents “think we don’t care for her” and “don’t let her see our family”. When asked if the child could remain with the first and second respondent if still part of her life, Ms Simon conceded that such an arrangement would be appropriate, but stated that she did not want to see the child at a contact centre and further that she wanted the child to be a part of her family. This was further evidence of Ms Simon placing her needs ahead of the child’s.
During cross-examination by Mr Combes, Ms Simon also conceded that when the child was with the applicant, she was in fact the child’s primary carer. Mr Combes enquired as to why she was not the applicant in these proceedings for the child to live with her, rather than her husband. Her response to that question was that she did not wish to lose her grandson, who lives with her or her job as a child-care worker, as a result of the allegations made against the applicant. I note that these proceedings were commenced by the applicant before the allegations of sexual abuse came to light.
The impression I gained from the evidence of Ms Simon was that ultimately she placed her needs and those of the applicant ahead of the child’s needs. Neither provided any support or assistance to the child prior to the assault, nor did they seek to have her placed in their care following the assault. Further, when application was made to this Court, it was not the proposed primary carer (Ms Simon), but rather the applicant, who commenced these proceedings.

When cross-examined by Mr Combes, the applicant at times displayed anger and hostility towards the first and second respondent. When asked about his relationship with them, he stated that whilst initially the relationship was good, they now have “no relationship…they want nothing to do with me and I want nothing to do with them”.
The applicant appeared reluctant to acknowledge the importance of the child’s relationship with the child B, only conceding that their relationship was “probably good”.
Throughout the hearing, the first and second respondents presented as child-focussed. Further they impressed as being committed to facilitating an ongoing relationship between the child and the applicant and third respondent. They also impressed that they were committed to supporting the child’s knowledge and identification with her Aboriginality.
They have supported the child’s relationship with the applicant, ensuring she spent frequent and regular time with him up until August 2012 and thereafter facilitating supervised time between the applicant and the child.
Similarly, they have also supported the child’s time with the mother and have indeed facilitated the mother having overnight supervised time with the child in their home.
Upon observing sexualised behaviour in the child and upon her making disclosures implicating the applicant, the first and second respondents have acted protectively, initially seeking advice from Department workers and ultimately suspending the applicant’s time with the child.
Accordingly, I am satisfied that the first and second respondent have the capacity to provide for the child’s needs.
For all of the reasons identified above, I have grave concerns as to the capacity of the mother and the applicant to care for the child without supervision.
(d)the likely effect of any change 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;
The child’s primary attachment figures are the first and second respondent. She has lived with them and her half sister since she was aged five months. It is likely that she would be greatly distressed were she to be removed from their care. Further, as identified in paragraph 107 of the Family Report, any shift in her living arrangements may compromise her secondary attachments with her paternal grandparents and the mother[11].
[11] Family Report, paragraph 107.
(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;
The applicant is Aboriginal. An important aspect of his application is his desire to ensure that the child knows and enjoys her Aboriginal culture. In opening his case the applicant impressed upon the Court the importance of the child knowing her family and highlighted the fact that the first and the second respondents were not family.
The applicant deposes that he is involved in the W Aboriginal Community in City X. During his time with the child, the applicant was taking her to the “L” playgroup, being a playgroup for children of Aboriginal heritage.
The first and second respondents acknowledged the importance of the child’s Aboriginal heritage. It was their evidence that her Aboriginal culture was an important part of her life, and further that her relationship with the applicant was an important link to that culture. Notwithstanding their position that the child’s time with the applicant should be supervised so as to ensure her physical and psychological safety, both the first and second respondent indicated that the applicant would continue to provide an ongoing connection for the child with her Aboriginal heritage. It was evident that they hoped the applicant would continue to support and foster the child’s connection with her Aboriginality.
The evidence of the first and second respondent was consistent with the observations of Dr P. At paragraph 106 of the Family Report she noted that the first and second respondent “impress as supportive of [the child’s] Aboriginal identity and are well connected to relevant cultural agencies, though they were clear that this was not a substitute for [the child’s] biological family and they expected [the applicant] to be a significant influence in shaping [the child’s] cultural identity”.
When cross-examined by Mr Combes, the applicant conceded that the child identifies as Aboriginal. Given that the child has lived with the first and second respondents since she was aged five months, it is my view that the child would not identify as such without the support and encouragement of the first and second respondents.
Having heard the evidence of both the first and second respondents and having heard the concession of the applicant that the child identifies as Aboriginal, I am confident that they will continue to support the child in knowing and enjoying her Aboriginal heritage.
(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;
The applicant, first and second respondents and the mother live in reasonably close proximity of one another. The C Contact Centre is able to offer each of the mother and the applicant eight two-hour supervised sessions on a fortnightly basis. Thereafter, the parties are able to access the G Indigenous Centre to provide supervision.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)     any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)    and other relevant matter;
As detailed above, I am satisfied that the child has been a victim of family violence whilst in the care of the mother and the father.
(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;
It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child. As the mother has not participated in the hearing of this matter and there is evidence that she suffers from mental illness, there is a possibility that at some time in the future if she has regained her health she may make application to the Court to vary parenting orders. Notwithstanding that circumstance, I am satisfied that the orders that I propose to make are in the child’s best interests and are likely to lead to the conclusion of Court proceedings for the foreseeable future.
(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;
(m)any other fact or circumstance that the court thinks is relevant.
These factors are either not relevant in this case or have already been dealt with.

CONCLUSION

The child M has lived with the first and second respondent since she was aged five months and she has thrived in their care. The ICL proposes that they should have equal shared parental responsibility for the child and that she should continue to live with them. I am satisfied, having regard to the history of family violence to which the child has been subjected, that the presumption of equal shared parental responsibility in s 61DA of the Act is rebutted. On any view it is in the child’s best interest that the first and second respondent be responsible for decision-making.
As detailed above, there is significant tension and hostility directed by the applicant and Ms Simon towards the first and second respondent. Accordingly, it is inappropriate that they have a role in the decision-making process for the child.
The child’s primary attachment figures are the first and second respondent. They have provided for all of her physical and emotional needs since her infancy. They facilitate and support her on-going relationship with her half-siblings. Accordingly I am satisfied, for the reasons detailed herein, that the child should live with the first and second respondent.
Whilst allegations of sexual abuse have been made, I have found that the applicant does not pose an unacceptable risk to the child based on those allegations.
However, the evidence of the applicant and Ms Simon supports a finding that they have denigrated the first and second respondent and undermined their importance and position in the child’s life. They have filmed the first and second respondent at contact changeovers, and corrected the child when she has referred to them as her “mummy” and “daddy”. Such conduct is confusing to a child of M’s age and may destabilise her relationship with the first and second respondent. That relationship must be protected. Accordingly, I am satisfied that it is appropriate that the child’s time with the applicant be supervised.
As to the frequency of time, Dr P notes at paragraph 109 of the Family Report as follows:-
It is impractical to expect primary carers to facilitate high frequency time with multiple parties for school aged children, whose availability is significantly reduced by educational and social commitments. It is the writer’s view that [the child’s] relationship with her mother should be prioritised over that of the paternal grandparents in scheduling time.
I accept that unchallenged evidence.
At paragraph 110 of the Family Report, Dr P notes that the need for supervision will reduce as the child matures. The first and second respondents have recognised this in their proposals.
The mother has significant mental health issues which remain unaddressed. This was observed by Dr W and Dr P and was evident by her conduct in effectively abandoning her application on the first day of the hearing when she left the Court and did not return. Accordingly, I am satisfied that her time with the child must also be supervised.
The ICL has proposed that the parties be restrained from denigrating or criticising any other party in the presence and hearing of the child. I am satisfied that it is appropriate to make such order.
The ICL also proposed that the first and second respondents arrange for the child to attend counselling at the Royal Children’s Hospital Gatehouse Centre for assessment in relation to her sexualised behaviours. In light of the observed sexualised behaviours of the child I am satisfied that it is appropriate to make such order.
Accordingly the orders I propose to make are as follows:-
1.That all previous parenting orders be discharged.
2.That the first respondent Ms Peters (“the first respondent”) and the second respondent Mr Peters (“the second respondent”) have equal shared parental responsibility for the child.
3.That the child M Simon born … 2009 (“the child”) live with the first respondent and the second respondent.
4.That the child spend time with the applicant, Mr Simon (“the applicant”), as follows:
(a)    Until the commencement of Term 4, 2014:
(i)Each alternate weekend for a period of two hours, such time to be supervised by C Contact Service and upon that Service no longer being available, such time to be supervised by either:
(A)The G Indigenous Centre; or
(B)The W Aboriginal Cooperative, City X;
(b)    Upon the commencement of Term 4, 2014 as follows:
(i)On the first Saturday of each month from 10.00 am to 3.00 pm, the applicant to collect the child at the commencement of his time, and the first and/or second respondent to collect the child from the applicant at the conclusion of his time; and
(ii)As may otherwise be agreed between the parties from time to time.
5.That the third respondent, Ms West (“the third respondent”), spend time with the child for a period of two hours each week at times to be agreed between the third respondent and the first and second named respondents, such time to be supervised by C Contact Service and in the event that service is not available:
(a)    The G Indigenous Centre; or
(b)    The first respondent or the second respondent.
6.That the fourth respondent be restrained from spending time with the child.
7.That each party be and is hereby restrained by themselves, their servants or agents from denigrating or criticising any other party in these proceedings in the presence of or hearing of the child, or allowing any other person to do so within the child’s presence or hearing.
8.That each party be and is hereby restrained from criticising the care arrangements for the child or discussing these proceeding or any disputes as between the parties or any of them in the presence of or hearing of the child or allowing any other person to do so within the child’s presence or hearing.
9.That the first and second respondents do all such acts and things as may be required to facilitate the child’s attendance at the Royal Children’s Hospital Gatehouse Centre for Assessment of Child Abuse for assessment and if recommended by that Centre, counselling.
10.That the orders for the appointment of the Independent Children's Lawyer be discharged.
11.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.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 September 2013

Associate:

Date: 12 September 2013

[2013] FamCA 1104

Key Legal Topics

Areas of Law

Family Law

Native Title

Legal Concepts

Fiduciary Duty