Smithers & West

FAMILY COURT OF AUSTRALIA

SMITHERS & WEST

[2008] FamCA 772

FAMILY LAW – CHILDREN – With whom a child spends time – Mother lives in Newcastle and the father at F on the New South Wales north coast – Parties agree that the child should remain living with the mother –Whether there is an unacceptable risk of harm to the child if the child spends time with the father unsupervised – Ordered that the father spend unsupervised time with the child - Parental responsibility – Presumption of equal shared parental responsibility – Presumption of equal shared parental responsibility is rebutted but it is ordered that the mother and father have equal shared parental responsibility as the Court is satisfied that this is in the child’s best interests

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
Goode and Goode (2006) FLC 93-286
H v W (1995) FLC 92-598
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R v R (Children’s wishes) (2000) FLC 93-000
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Smithers

RESPONDENT:

Mr West

FILE NUMBER:

(P)NCF

667

2006

DATE DELIVERED:

10 September 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

12, 13, 14, 15 & 16 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Kim Monnox & Associates

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

Toronto Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Duane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Coast Law

Orders

That all prior parenting orders are discharged.
That the Applicant Mother and Respondent Father have equal shared parental responsibility for “the child” C born … January 2002.
That C live with the mother.
That C spend time with the father as follows:
4.1Commencing forthwith and until 30 November 2008 in the Newcastle region each third Saturday and Sunday between 10.00 am and 4.00 pm. During these periods the father shall be accompanied by his mother, father, brother L or sister D, each of whom prior to participating in the visits shall file and serve a written undertaking to the Court that they will be substantially present throughout the visit and terminate it if the father is affected by alcohol.
4.2Provided the father has:
(a)consulted his general practitioner for treatment for his alcoholism within 14 days of the date of these orders;
(b)attended within four weeks of the date of these orders upon a drug and alcohol counsellor for assessment and ongoing treatment;
(c)within ten weeks of these orders filed and served an affidavit attaching a report from his general practitioner and drug and alcohol counsellor confirming his attendance upon them and, to the extent that they can be confident of it, his compliance with his recommendations; then
4.3Commencing on the Saturday four weeks after the last day pursuant to Order 4.1 the father spent time with the child, each fourth weekend during school term from 9.00 am Saturday to 5.00 pm Sunday.
4.4For the first 10 days of the Christmas 2008/2009 gazetted New South Wales holidays.
4.5For a second period of 10 days during the Christmas 2008/2009 Christmas school holidays commencing 10 days prior to the last Saturday of the school holidays.
4.6Thereafter from the Saturday immediately after classes end until the Thursday immediately prior to classes resuming for the end of Terms 1 and 3 school holidays.
4.7For half of the end of Term 2 school holidays, being the second half in 2009, the first half in 2010 and alternating annually thereafter.
4.8For half of the Christmas school holidays, being the second half in 2009/10, the first half in 2010/11 and alternating annually thereafter.
4.9In the event of a long weekend during school term from 9.00 am on the first day until 5.00 pm of the last day of the long weekend.
4.10By telephone each Wednesday at 6.30 pm to be implemented by the mother causing the child to telephone the father.
In the event the father fails to comply with Order 4.2 prior to December 2008, he shall continue to spend time with the child in accordance with Order 4.1 until he does comply.
For the purpose of changeovers for Newcastle weekend visits the mother shall cause the child to be delivered to the father at McDonald’s at B and he shall return the child to the same place.
School holiday changeovers shall take place at 12 noon.
For the purpose of changeovers for Order 4.3 and 4.9 weekend and school holiday visits the mother shall cause the child to be delivered to the father in a park or McDonalds or similar agreed venue at an agreed half way point and he shall return her to the same place.
In the event the parties are unable to agree on the half way point, it will be the town nearest to equidistant between the Newcastle GPO and F on the north coast’s GPO.
In the event the father moves closer to Newcastle than F the mother shall cause the child to be delivered to the father in a park or McDonalds or similar agreed venue at an agreed half way point and he shall return the child to the same place. In the event the parties are unable to agree on the half way point, it will be the town nearest to equidistant between the GPO in the place where the father is living and Newcastle GPO.
The father is restrained from:
11.1consuming alcohol for 24 hours prior to and during any time he spends with child;
11.2bathing, showering or sleeping in the same bed as child.
Until Order 4.7 becomes operative whilst spending time with the father the child shall stay overnight at her paternal grandparents home.
The mother and father are restrained from denigrating each other to or in the child’s hearing or permitting any other person to do so.
Unless the parties agree in writing, the mother is restrained from taking the child, or allowing any other person to take her, for counselling, therapy or investigation of child sexual abuse allegations involving the father. This order does not prevent mandatory notifiers, child welfare agencies such as the Department of Community Services or the New South Wales Police Service from investigating child sexual abuse allegations arising after the date of these orders.
Both parties shall forthwith ensure that any school the child attends has all necessary written authorities to provide information normally provided to parents to be made available to each of them.
Both parties shall ensure that the child’s medical practitioners have all necessary written authorities to provide information normally provided to parents to be made available to each of them.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.
Pursuant to s 121 of the Family Law Act 1975 the father and Registry Manager may give a copy of these reasons to the State government department employing the father.
That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCF667 of 2006

MS SMITHERS

Applicant

And

MR WEST

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application which relates to the parties’ only child, C. The mother, Ms Smithers, says the child should continue living with her and have supervised visits with her father. The mother believes supervision is necessary to protect the child from sexual abuse, exposure to domestic violence, neglectful and emotionally abusive behaviour and risks arising from the father’s alcohol abuse.
Mr West, the father, agrees their daughter should live with the mother. He refutes the mother’s abuse allegations and says supervision is both unwarranted and intrusive. As a general proposition, the father says the mother’s abuse allegations are gross distortions of innocuous events or otherwise fabrications. He says, and it is clearly the case, that until the child was four years old he was substantially involved in her care, indeed at different periods he was her primary carer. In his view, the catalyst for these proceedings was the mother’s anxiety concerning the ramifications for the child’s future living arrangements once he commenced working in country New South Wales. Simply put, given the father’s significant role in their daughter’s care, the mother was afraid he would insist that their daughter move with him.
Because of the complex issues involved an Independent Children’s Lawyer was appointed. On the application of the Independent Children’s Lawyer Dr R was appointed as the court’s expert. In her report released 8 November 2007[1] Dr R concludes: “With his impaired parenting history, abuse in the parental relationship, interpersonal difficulties, poor boundaries, history of alcohol abuse and allegations of molestation of his nephew, I cannot support [the father] having unsupervised time with [the child].” Consequently, Dr R recommends that the child continues to live with her mother and has monthly visits with her father in a contact centre. In her oral testimony, Dr R explained that her recommendations are predicated upon matters which are both fact and assumptions. In her assessment, the child does not appear to have been exposed to abuse and she is not anxious with her father. If, through its testing of the evidence, the Court concludes that the risk of harm to the child from unsupervised visits with her father is low, Dr R says she should have as much time with her father as is possible and developmentally appropriate. This is so that the child has the opportunity to form her own views of her father and minimise the consequences of the child’s views being filtered by the mother’s negativity.
[1] Exhibit “H”
At the end of the hearing the Independent Children’s Lawyer submitted that the Court should make a positive finding the child has not been abused by the father. The Independent Children’s Lawyer submits that as the hearing progressed, the mother’s credibility was brought more and more into question and it ultimately became apparent many of her allegations are distortions or deliberate untruths. So as to provide an easy transition from supervised to unsupervised visits between the child and her father, whilst simultaneously providing a reasonable time frame during which the father takes steps to address his alcohol abuse, the Independent Children’s Lawyer submitted for a period of specified[2] visits facilitated, but not strictly supervised, by various members of the father’s family.
[2] Exhibit “U”

Background facts

Throughout these reasons statements of fact are findings of fact.
The father was born in May 1968 in T.
The mother was born in September 1977 in Newcastle.
In May 1994 the father married NM. They divorced in April 1997. There are no children of their marriage.
In December 1998 the father’s sister and brother in law accused him of pulling their four year old son’s penis while showering. Early in their relationship the father informed the mother of the allegation.
During 2000 the parties met at work. At that time the father lived in rented premises in Sydney and the mother lived at her parent’s home in Newcastle. She often stayed in Sydney at her brother’s home.
The parties relationship began on the first day of the Sydney 2000 Olympics. They did no cohabit. According to the mother, the parties’ personal relationship ended in May 2002. The father denied this and says the parties’ sexual relationship continued until May 2005 and a non-sexual relationship existed until October 2005. For reasons later discussed I prefer the father’s evidence concerning the parties’ relationship. Rarely are matters relating to the parties sexual relationship relevant. However, the mother makes numerous allegations concerning the father’s mistreatment of her including that he raped her about 68 times. The nature and circumstances of their relationship were thus a significant issue.
In January 2002 the child C was born. She is the parties’ only child. When C was born the mother was living with her parents at their Newcastle home and the father lived in Sydney. The mother took paid maternity leave until July 2002. During the six months between the child’s birth and the mother’s return to work the mother was primarily responsible for the child’s care. During this period, including after when the mother says the parties ended their relationship, the father frequently visited the child and the mother. When visiting the father shared the mother’s bedroom at her parents home. He usually visited on a weekend but not every weekend.
The mother says that within weeks of their personal relationship ending, which on her evidence is May 2002, the father began raping her four times a month.
In June 2002 the father was accepted into an open foundation course at the University of Newcastle. Shortly thereafter he stopped work and in July 2002 he moved into a rental property in M Street, which the mother owns and where she and the child were living. The father executed a six months lease which is curiously dated 1 May 2002[3]. His rent is identified as $150 per week without a bond. Having regards to the mother’s rape allegations this is a breathtaking turn of events. The mother says the parties agreed that once she returned to work they would share their daughter’s care. That is, the father would care for the child whilst the mother was at work and her the rest of the time. While the father agrees he was primarily responsible for their daughters care, he says the parties personal relationship continued and they lived in a defacto relationship until about mid 2006. On his evidence while the parties lived at MStreet, they were cohabiting and in an intimate and exclusive familial relationship.
[3] Exhibit “C”
When the mother returned to work fulltime, including travel time between Newcastle and Sydney, the father was caring for the baby from very early in the morning until evening, four and frequently, five days a week. At that time the mother worked two shifts. Her basic roster was seven days on, three days off, seven days on and then four days off. When working morning shifts the mother caught a train at 2.30 am and was usually home by 3.40 pm. She worked either six or nine hour shifts and travel time took three hours each way. When working afternoon shifts she stayed with her brother in Sydney. As this meant not seeing the child for days on end, after a couple of months the mother’s employer agreed she need only work morning shifts, which by then started at either 4.30 am or 6.30 am.
The mother says she was living at both M Street and her parent’s home. Whilst the child was with the father, that is at least 14 nights in 21, the mother lived at M Street. On her days off she stayed one or two nights at her parent’s home with the child. While the child was with the father, when he was at university, she was cared for by the mother’s parents and placed in day care at Newcastle University. Twice weekly the father attended a two hour lecture and spent some time at the library. At this stage he was primarily responsible for the child’s care. The father received a Supporting Parent’s Benefit, Family Tax Benefits and obtained a Child Support Assessment. The mother explains the parties agreed she would buy the child’s nappies and the like and paid child support by reducing the father’s rent. When one has regard to the totality of the parties circumstances, their financial dealings with government agencies are somewhat surprising.
The father’s lease on the M Street property expired on 1 November 2002. With little inconvenience to her the mother could easily have excluded the father from the property yet she allowed him to remain.
At the beginning of 2003, the father commenced a fulltime Bachelors degree at the University of Newcastle. The arrangements for the child’s care were unchanged, subject only to the mother’s parents becoming more involved in the child’s day time care because the time the father needed for lectures and study increased.
In April 2003 the mother obtained a work transfer to L on the central coast. Her travelling time for work reduced by about half. The mother started work at 8.00 am and finished at 4.00 pm Monday through to Friday. She had two rostered days off each month.
In mid 2003 the mother kicked and punched the father giving him a bloody nose. The father applied for an Apprehended Violence Order (AVO), which application he subsequently withdrew.
The mother alleges that in September 2003 in response to the father’s unwelcome sexual advance she said to him: “If you touch me and don’t stop I’ll get the police.” Since then, the mother says the father has not tried to have sex with her. The father alleges the parties’ consensual sexual relationship continued until mid 2005.
In January 2004 the mother commenced employment in Newcastle in a call centre. In this position she worked Monday to Wednesday and Friday from 7.15 am to 4.00 pm.
At about the same time the child commenced day care one day a week.
In 2005 the child’s day care increased to two days a week.
In May 2005 the parties’ sexual relationship ceased.
In August 2005 the parties holidayed with the father’s mother and their daughter at R. During this three night stay the parties and child slept together in a double bed. The mother says she slept on a lounge or the floor and when she heard people stirring in the morning got into the father’s bed, which explains why witnesses saw them in bed together. On her version the mother was content that the father and child share a bed.
In September 2005 the mother obtained a position with K Organisation in Newcastle. This is where she presently works. Until relatively recently her hours remained the same as when she worked at the call centre.
In early 2006 the child started pre-school three days a week.
In January 2006 the mother assaulted the father causing swelling to his face.
In January/February 2006 the father and child stayed at his parent’s home in F for a number of days. The mother collected the child from F and spent one night at the paternal grandmother’s home, sleeping in the same bed as the father. Again she says she only joined him in bed when she heard people stirring. Again on the mother’s version, she was content that the father and child share a bed.
In February 2006 the mother purchased a property at R Street. The mother moved into its main residence and at her invitation, the father moved into a separate flat at the front of the property. The two flats are only metres apart. The front flat did not have bathroom facilities and the mother allowed the father to use hers. Once the parties moved to R Street the child usually slept in her mother’s premises and on Friday nights in the father’s. When she was not in pre-school and her mother was at work, the father predominantly cared for her.
On her employer’s recommendation, in April 2006 the mother commenced counselling with Mr Y. Between April and June 2006 the mother attended Mr Y three times. The mother says she spoke to Mr Y about her relationship issues with the father and in particular her fears of him but did not allege rape.

In July 2006 the father’s mother and grandmother visited the parties and the child at R Street. The visitors stayed in the father’s flat while the parties and child slept in the mother’s.
In June 2006 the mother borrowed the father’s computer on which she found a computer photograph of the child naked. The mother says: “I also saw that there had been drawing on top of the photograph. The drawing was of glasses to [the child’s] eyes and for hair on [the child’s] vagina and underarm”. The father agreed he had a photograph similar to that which the mother described except that he denied drawings of pubic hair. During the hearing the mother called for the computer and photograph. Both were produced. Before the photograph was inspected, it was agreed the difference in the parties’ evidence was that the mother said the photograph showed drawings on the child’s body of pubic hair, whereas the father said there was none. When produced, the photograph had attached to it records which show it was taken on 24 October 2005 and modified on 11 March 2006. The modification date is the date on which the father and the child sat together at the computer drawing on the photograph. There is no pubic hair on the photograph. Basically it depicts the child at three years and eight months standing naked, exuberantly throwing her arms out. Onto it, there are drawn glasses, bikini top, blackened front teeth, party wig and underarm hair. Following inspection of the computer’s hard drive, it was agreed the hard drive does not reveal any photograph of the child on which pubic hair was superimposed. In re-examination the mother said there is another photograph of the type she described in her affidavit. I do not believe her. This photograph evidence is a tidy example of the mother taking an innocuous event and, through embellishment, attempting to turn it into something more sinister.
On 17 July 2006, by agreement, the father took the child to his parent’s home at F for one week.
On their return the mother moved in with her parents, taking the child with her. Other than a two to three week period when the mother and the child returned to R Street, they stayed at the maternal grandparent’s home until November 2006.
In about September 2006, the father was working full time and began nominating locations acceptable to him following graduation. This was in preparation for his commencing employment with the New South Wales public service in 2007. He knew he had little prospect of obtaining a posting in Newcastle or Sydney and discussed with the mother postings to places such as Broken Hill and E. Given the state of their relationship, it came as no surprise the mother declined the father’s invitation that she and the child move with him, not as partners but in an arrangement which would enable both parties to be actively involved in their daughter’s care. Simply put, the father’s hope was that the parties could continue jointly caring for the child and the difficulties inherent if they lived some distance apart could thus be avoided. Once the mother declined to move the parties needed to plan the child’s future care.
On 4 October 2006 the mother’s dog went missing from her parent’s home. The mother was frantic. Believing the father may have the dog, the following morning the mother’s father went to the R Street premises. The mother’s father called out to the father enquiring if he had the dog. He understood the father to call back that he did not. The father says he called out the dog was with him and the mother’s father left. He says he was unaware of any drama involving the dog and assumed that once again it had wandered the short distance from the maternal grandparent’s home to R Street. Later in the morning he drove the dog home. The maternal grandfather saw the father open his car door and the dog flew out, the implication being the father threw the dog out. The father says he opened his car door and the dog jumped out. I was surprised about the amount of time spent on the dog’s disappearance and ultimately it is impossible to decide whether the father took and kept the dog or whether his version of events is correct. If the former, the behaviour is childish and if the later it is of no moment. Concerning its relevance, if the maternal grandfather’s evidence is accepted, the mother says this is the father demonstrating to her he could just as easily take the child. I do not accept her contention and regard the evidence concerning the dog’s disappearance as irrelevant.
On 5 October 2006 the mother approached police seeking an AVO for her protection from the father. Although she could have given him notice to quit the mother thought this was the easiest and quickest way to force him to leave R Street. Acting on the mother’s complaint, on 16 October 2006 police filed an AVO and summons at the Local Court returnable on 1 November 2006.
At about this time the father started a binge drinking episode.
On 23 October 2006 the mother asked the father to agree that during the forthcoming Christmas school holidays she could take the child to the United States and Canada. Her sister and family were also travelling and the mother was keen to accept their invitation that she joins them. The father prevaricated and then refused his permission.
On 27 October 2006 the mother filed an application in the Federal Magistrate’s Court. In the application the mother sought orders that the child lives with her and permission to take her overseas. In support of her application the mother swore a seven page, including annexures,[4] affidavit. In her affidavit the mother details the parties respective involvement in their daughter’s care. She outlines her travel proposals and the father’s refusal to consent to their daughter’s overseas travel, “due to the threat of terrorism”. The mother repeats her invitation that the father joins them on the trip provided he has his own accommodation. Concerning the child’s future care, the mother deposes:
Pending removal of the father [Mr West] from her premises via application for AVO scheduled to appear before the court on 1 November 2006. Once [the father] is removed from the premises and the premises have been secured mother [Ms Smithers] plans to move back to the premises at [R Street] with [the child].
[4] Exhibit “O”
The mother deposes that from aged 6 to 14 months, the father was primarily responsible for their daughter’s care and from 15 months – 4 years they equally shared her care. Although the parties agreed post February 2006 to continue the child’s care 50/50, the mother deposes:
Father, [Mr West] while living in difference residence at same address has greatly reduced contact with [the child] stating that he is only interested in spending quality time with her.”
She explains previously supervising the child whilst with the father because of his ‘increasing alcohol dependence’.
Annexure “A” to the mother’s affidavit comprises a letter dated 23 October 2006 which she wrote to the father. In this letter the mother outlines her itinerary and suggested arrangements for telephone contact with the child whilst they are overseas. She invites the father to join in an early family Christmas celebration before their departure. In her final paragraph the mother says:
As you have recently only been spending a few hours with [the child] on Saturday due to you work prac commitments I am happy for you to spend additional time with [the child] on Sundays as well before we leave. After we return as you will be missing Christmas I will be happy for you to have [the child] to celebrate New Years and also for you to spend additional days with her to substitute the time you will miss whilst we are on holiday.
Nowhere in this letter or the mother’s affidavit does she mention the father mistreated her, behaved inappropriately towards the child or that in the future the child would be exposed to an unacceptable risk of harm if alone with him. To the contrary, the gravamen of the mother’s 23 October 2006 letter is that she proposes the father and the child have more extensive time, unsupervised, than was then occurring. The mother’s stance in this material is far more consistent with the father’s evidence and position in this case than with hers. It undermines the mother’s claims that the father mistreated her and the child and that she was afraid for herself or the child.
Upon filing the Federal Magistrate’s Court abridged time and transferred the proceedings to the Family Court.
The parties appeared before a Judicial Registrar on 14 November 2006 on which occasion they were directed to attend a child dispute conference and the proceedings were listed before a judge on 4 December 2006.
On 1 November 2006 an interim AVO was made at Toronto Local Court against the father for the mother’s protection. Order 2 provides that the father is not to live at R Street after 8 November 2006. Later the same day the father pitched a tent on the front lawn of the maternal grandparent’s home, where to their dismay, he slept for two nights. The child was delighted by this turn of events and on at least one of the nights, slept in the tent with her father. Neither the mother nor her parents took any steps to stop this.
On the morning of 3 November 2006 the maternal grandfather insisted the father remove the tent and vacate the property. The father complied. He explains his bizarre actions as demonstrating the ludicrous nature of the mother’s AVO application and, impliedly, her misuse of the AVO process.
In accordance with the interim AVO, on 5 November 2006 the father vacated the R Street property and moved into a local caravan park.
Around 13 November 2006, whilst supervising the child’s play time with her younger cousins, the mother believes she overheard her say: “It’s your turn to wank me now.” This remark was addressed to the three year old cousins, one of whom said: “What?” to which the child responded, “Eat me …. eat me”. The mother concedes she is not certain of what the child said. Following discussions with her general practitioner, the mother contacted the Department of Community Services. It appears the Department of Community Services took no action in relation to the mother’s information.
On 20 November 2006 the father collected the child from the maternal grandparent’s home. They visited his parents in F on the north coast and the father returned her on 22 November 2006 when the parties were due to attend mediation. The mother claims the father removed the child without her agreement. However, on 13 November 2006 he telephoned the maternal grandfather and told him he would like to pick the child up on 20 November 2006. The paternal grandfather agreed and said he would pass the information on to the mother. Having regard to the interim AVO, the father’s decision to use the maternal grandfather as a conduit for communicating with her was appropriate. If the mother was opposed to the father removing the child or viewed him as taking the child without her consent, I would have expected her to take steps to recover the child. The mother did not contact the father nor take recovery proceedings. Her failure to act is consistent with the father’s account of this incident.
On 29 November 2006 the mother took the child to see a child psychologist, Ms O. Between then and June 2007, the child attended eight sessions with Ms O.
On 30 November 2006 the father went to the maternal grandparent’s home hoping to see the child prior to her overseas holiday. The mother refused to allow the father to have time alone with their daughter. The father and child did not see each other again until March 2007.
On 4 December 2006 by consent, the Family Court made the following orders:
1.That the Department of Foreign Affairs and Trade be requested to issue a passport to [the child] born […] January 2002, forthwith.
2.That the Mother do all acts and things to return the child to Australia on or before 29 January 2007.
3.That thereafter from 15 January 2007 until 29 January 2007 and continuing thereafter the Mother be restrained from removing the child from Australia without the Father’s written consent.
4.That the Mother by 30 January 2007 deliver to the Registry Manager, Newcastle Registry Family Court of Australia the passport in the name of [the child].
5.That pending the interim hearing, the Father communicate with the child:
5.1. whilst the child is in Australia, each Monday, Wednesday and Friday between 5.00 pm and 5.30 pm;
5.2. whilst the child is not in Australia each Monday Wednesday and Friday between 7.00 am and 9.00 pm Eastern Daylight Savings Time (Australia)
and by way of consequential arrangements the Mother cause the child to telephone the Father on the Father’s mobile 04[…] or such landline as he advises from time to time.
6.That an Independent Children’s’ Lawyer be appointed for [the child] born […] January 2002.
Following the 4 December 2006 court attendance the mother started seeing a counsellor following each court appearance.
Between 14 December 2006 and 15 January 2007 the mother and the child travelled overseas.
On 15 December 2006 the mother filed an amended application for final orders seeking, in summary the following orders:
1.That the child lives with her.
2.That the father spend supervised time with the child at Rainbows Children’s Contact Centre.
3.Until Rainbows becomes available, the father spends up to four hours each weekend, supervised by [Ms W].
4.That the parties share equally the costs of supervision.
5.That the father has telephone contact with the child each Monday, Wednesday and Friday at 5.00 pm and otherwise by mail.
In late 2006 the father completed his Bachelors degree.
In 2007 the child attended pre-school three days a week.
On 12 January 2007 the hearing of the mother’s AVO commenced but did not finish. It was adjourned to 16 April 2007.
Following an exchange of correspondence between the parties’ solicitors, on 22 February 2007[5] the mother’s solicitors wrote to the father confirming the mother’s position she has: “At all times been prepared to make the child available for time with the father, provided the time is supervised by Ms [W]. We confirm that the mother informed the father that she was prepared to do so however the father rejected the mother’s proposal.” This letter accurately summarises the situation. Essentially, the father refused to agree to the mother’s demand that his contact with the child is supervised because he believed doing so was tantamount to him admitting that the child was at risk if alone with him.
[5] Exhibit “S”
In March 2007 the father moved to E to work for the State government.
On 6 March 2007, by agreement, the Court made the following interim orders:
1.That [the child] born […]/1/2002 (the child) live with the Mother.
2.The child spend time with the Father defined as follows:
(a) Each fourth weekend from 9 am to 5 pm on Saturday and 9am to 5pm on Sunday commencing 31st March 2007.
(b) On the Father’s University graduation day from 9am to 5pm
3.All time spent by the child with the Father be supervised by the Father’s sister [D], who collects the child from the Mother’s home at commencement of each period and return the child to the Mother’s home at the conclusion of each period.
4.The Father be restrained from causing or permitting the child to come into contact with the paternal grandmother of the child during the above spending time with periods except immediately before, during and immediately after the graduation ceremony referred to in 2(b).
5.That the child communicate by telephone with the Father each Monday Wednesday and Friday between 5pm and 5.30pm the Mother to cause the child to telephone the Father on the Father’s mobile or such landline as he advises from time to time.
6.It be noted that the Mother and the Father’s mother will arrange informally for the child to spend time with the Father’s mother.
The father and child commenced supervised visits on 31 March 2007. This is the first time they had seen each other since 30 November 2006. For the following seven months the father’s sister was the supervisor. She stopped supervising for a variety of reasons, but particularly because she found having to pull a crying child off her father at the end of each visit too distressing.
Unbeknown to the father, the mother retained a private investigator to observe his first visit with the child. The investigator observed that during the visit the father and the child were unsupervised for between two and three minutes. This occurred when the father’s sister D spoke on her mobile telephone at her car while the father took the child into the hotel where he and D were staying.
On 10 April 2007, via her solicitors, the mother informed the father she is aware that on 31 March 2007 his sister was absent during part of the time she was supposed to be supervising.
The mother alleges on 12 April 2007 the father licked the child’s vagina. On this occasion the father and his family were celebrating the conferral of his Bachelors degree. The group comprised the father, his parents, grandmother, brother N, sister D and the child. By orders made 4 March 2007, the father’s mother was restrained from being in the child’s presence other than shortly before, during and shortly after the graduation ceremony. Once again unknown to the father, the mother retained a private investigator to observe this visit. In the period she was supposed to be supervising the child, the father’s sister D returned with her mother to the motel where the group was staying leaving the child with the father and other family members. D was absent for about 90 minutes. The paternal grandmother was involved more extensively than order 3 permitted.
While D was absent the child needed to go to the toilet. Although the father could have asked his father, brother or grandmother to take her or accompany him he did not and on his own he took the child to a public toilet. There was a short period when the father and child were in the toilets without a supervisor. It is while they were in the toilets that the mother says the father sexually abused the child. The private investigator’s video recording[6] shows a happy family celebration at which the child is enjoying herself. At no stage does she show any discomfort or signs she may be upset because something happened to her. Nonetheless I agree with the mother that the father’s and his family’s failure to abide the orders requiring his supervision warrant serious criticism. However the child has not said the father licked her vagina, then or ever. The mother says that when Dr R reports the child answering a question in which she identifies J as behaving this way, the Court will be satisfied she meant to implicate her father. For reasons explained later I do not accept her hypothesis.
[6] Exhibit “A”
On 16 April 2007 the parties attended Toronto Local Court for a final hearing in relation to the AVO proceedings. The matter was resolved by the continuation of the interim order, without admission by the father, until 25 January 2008.
On 19 April 2007, the father formally denied he was alone with the child in the motel room during his 31 March 2007 visit with her.
On 27 April 2007 the mother filed an application in a case seeking to vary the 6 March 2007 orders so that the father spends time with the child at a contact centre or supervised by Ms W. Ms W is a former court counsellor who regularly accepts instructions to supervise, for a fee, child and parent contact. The mother’s application was listed before a Judicial Registrar on 7 May 2007 and adjourned for hearing before me on 10 May 2007.
Excluding procedural matters on 10 May 2007 I made the following orders:
1.I give the applicant leave to file and serve the affidavit of [Mr T] sworn 4 May 2007 and her affidavit sworn 24 April 2007.
2.That by 4.00 pm on 21 May 2007 the father shall cause [his sister D] to file and serve an affidavit in which she addresses:
(a)her failure to fully supervise the child on 31 March 2007 and 12 April 2007; and
(b)her commitment to continuing supervision which must include a statement of her understanding of her obligations to supervise.
3.That further consideration of this matter is adjourned to 24 May 2007 at 9.30 am.

On 11 May 2007, the mother says the child’s cousin, M, said to the child: “Do ducks lick vaginas [C]?” The mother’s sister says M said: “Does this duck lick your vagina [C]?” The child appeared to stiffen and M said “Does it paddle? Does it paddle in the water?” The child slowly nodded. In the mother’s opinion: “[M] could have asked this question of [the child] because [the child] may have previously volunteered matters about licking vaginas to [M] without the knowledge of any relevant adults.” There is no evidence the child has ever said anything like this to M. Three days later the mother’s sister notified the Department of Community Services about the event. The Department took no action.
On 24 May 2007, again excluding procedural matters, I made the following orders:
1.At all times during supervision, the supervisor must be present with the child while the father is present.
2.The supervisor may allow the child to remain briefly in the company of another adult but only if the father remains in the supervisor’s presence.
3.The supervisor shall not permit the father to take the child to the toilet.
4.In the event the father removes or attempts to remove the child from the supervisor’s care or hearing, the supervisor must retrieve the child, notify the mother and Independent Children’s Lawyer and return the child to the mother.
5.The supervisor shall not allow the child to have a conversation with the father which the supervisor is unable to hear.
6.In the event the father behaves in a sexually inappropriate manner towards the child or in the presence of the child, the supervisor must notify the mother and Independent Children’s Lawyer and return the child to the mother.
On 6 June 2007, as well as making orders by consent for the appointment of Dr R as the Court’s expert, I made the following orders:
1.That order 2(c) of the Orders made on 30 April 2007 be varied so as to provide that the Father’sister, [D] (“the Paternal Aunt”) collectect […] (“the Child”) from McDonalds [B] at the commencement of each period that the Father spends with the child and returns the chld to McDonalds [B] at the conclusion of each period.
2.That in the event the child will be collected more than 30 minutes late, the Father is to do all acts to ensure that the Paternal Aunt notify the Mother in advance.
In August 2007 the child’s maternal great grandmother says that while the child was changing for bed, she “lifted up her skirt, pulled down her underpants and said: ‘Lick my ‘gina, it tastes lovely”. The great grandmother told the child to pull her clothes up and otherwise ignored her behaviour.
Dr R conducted her interviews for her report on 27 September 2007.
In October 2007, Ms O referred the child to Ms V who is a psychologist specialising in sexual assault. The child attended five appointments with Ms V. It appears the purpose of these sessions was further exploration of the mother’s allegations the father abused their daughter. Ms V’s notes[7] reveal that she finds the child guarded and difficult to engage. Concerning her father, the most critical or concerning remark the child made was on 8 November 2007 when she reports: “ … she spoke to another lady, [Ms O] about ‘daddy be naughty but he never bees naughty. She’s wrong.’” In this same session Ms V reports the child: “Said she plays with him all the time and he never makes her sad”.
[7] Exhibit “K”
Dr R’s report was released on 9 November 2007.
Following the father’s sister D withdrawing as supervisor, on 13 November 2007 an order was made for supervision by Relationships Australia and until they could make a space available, in the alternative by Ms W.
On 15 December 2007, Ms W began supervising the father and the child’s visits. The visits are two hours long and occurred at Ms W’s premises. Her fees are $80 for two hours, which costs the parties equally share. At the Independent Children’s Lawyer’s request Ms W provided a written report on the visits.[8]
[8] Exhibit “M”
The child started school in January 2008.
The mother’s AVO hearing continued on 25 January 2008 when the interim AVO was discharged and the application adjourned for further hearing after these proceedings are finalised.
On 5 March 2008 the father received a letter from his State government employer notifying him it had been informed that he had sexually assaulted children. The informant was the mother’s sister. Aware that the allegations were to be considered in these proceedings, the State government has allowed the father to continue working pending further investigation and the completion of these proceedings.

General Law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that 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.
2.The principles underlying these objects 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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

General principles to be applied in determining risk allegations

The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-78 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things 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 if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The Briginshaw test is now enshrined in s140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.
Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 of the Evidence Act, in all the circumstances there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page (supra).
These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.

The mother’s circumstances

The child is the mother’s only child. They live alone at R Street, Newcastle. Tenants live on other parts of the property, but not in the same house. The mother’s parents also live in Newcastle and her sister, brother-in-law and their four children live ten minutes away. The mother’s parents and sister gave evidence. They appear pleasant and hard working people. Theirs is a close knit family and the child is strongly attached to her twin cousins M and J.
The mother continues to work with K Organisation. On Mondays, Tuesdays and Wednesday she starts work at 9.15 am and finishes at 2.15 pm. On Thursdays the mother commences work at 9.15 am and finishes at 5.00 pm and on Fridays she starts work at 7.00 am and finishes at 2.15 pm. On Mondays to Wednesdays the mother takes the child to and from school. The mother delivers the child to school on Thursday morning and her sister collects her in the afternoon. The child stays overnight at her maternal grandparent’s place on Thursday nights and on Fridays they deliver her to school. On Friday afternoons the mother collects the child from school.
The mother supports the child with little financial assistance from the father. In addition to her salary the mother has income from investment properties.
The child is involved in a number of extra-curricular activities. After school on Tuesday the child attends dancing with her cousins M and J and gymnastics on Saturday.
The mother’s proposed orders are identified in her amended Application filed 18 December 2006. Concerning the father’s future relationship with the child the mother says until she turns 18, they should have face to face contact at a contact centre. The effect of this is the father and child will see each other for a maximum of two hours a fortnight. At a contact centre the cost of each visit is considerably less than the parties presently pay. The mother suggests regular telephone and written communication.

The father’s circumstances

The child is the father’s only child.
The father lives in rented premises in F. During 2007 he lived and worked in E. Presently the father accepts casual positions and is awaiting completion of these proceedings before applying for permanent positions. In January 2008, during the school holidays, the father visited Newcastle with the aim of pursuing work opportunities. In the end, he decided against this and returned to F, where he grew up and where his parents and other family members live. In deciding against working in Newcastle the father was particularly concerned not to place himself in a position, where by living in the same community as the mother he may, through chance encounter, be accused of acting in contravention of an Apprehended Violence Order. Although the father may eventually move closer to Newcastle, for the foreseeable future he plans to remain in F.
Each of the father’s parents gave evidence. The father is one of four siblings, comprising two children of both sexes. The father’s brother N and his sister D both gave evidence in his case. Like his parents, N and D appear pleasant, hard working people. The father, his parents, N and D are a close knit family.
Reluctantly the father’s sister Mrs KS gave evidence in the mother’s case. Following Mrs KS’s marriage to Mr MS, her relations with her family have been strained. In December 1998, KS and MS said the father: “Grabbed [DS] (their son) on the penis.” The father’s sister D and the father had stayed overnight at KS and MS’s home and the incident involving their son occurred when DS, then aged four, showered with the father. Within the family, this became an allegation of paedophilia and caused the already difficult relations between KS and MS and the father’s family to further deteriorate. MS swore an affidavit filed in the mother’s case, but KS refused. She appeared under subpoena and gave oral evidence, during which she adopted a proof[9] of evidence.
[9] Exhibit “D”
An important aspect of the mother’s case arises from the father’s alcohol use. The mother asserts he is an alcoholic. In Dr R’s opinion the father minimised the amount of alcohol he has used on a regular basis and points out that Campril is prescribed for people with alcohol dependency problems. In her view the father’s history of alcohol abuse comprises one of a constellation of factors that warrants supervision of the child when with him. In his affidavit sworn 6 May 2008, the father denies he has been diagnosed as an alcoholic and says he only agreed to speak with a drug and alcohol counsellor because the mother insisted. He says that from May 2005, he has not consumed alcohol whilst caring for the child.
At paragraph 30 of his affidavit sworn 6 November 2006, the father says he has not consumed alcohol in the preceding eight weeks and is attending regular Alcoholics Anonymous meetings. As his doctor’s medical notes demonstrate, his consultation on 22 October 2006 show the first part of this representation is untrue. Under cross-examination the father conceded he has only attended one Alcoholics Anonymous meeting, which was in November 2006. Plainly, his representation that he regularly attends Alcoholics Anonymous meetings is a lie.
The father first sought professional help with his alcohol abuse in 1994. On 8 March 2005 he attended the Drug and Alcohol Unit at the Mater Hospital in Newcastle. At his initial interview, he gave a history in which he describes himself as a binge drinker involving three day binges twice monthly. He describes a variety of physical symptoms when drinking and explained he was looking for help to stop. The Mater Hospital referred the father to his general practitioner with a recommendation that he obtains a prescription for Campril. His general practitioner’s notes[10] show the father attended on 15 March 2005 where he gave a history of binge drinking. His general practitioner prescribed Campril, recommended he continues counselling and proposed to review the father’s progress in one month. On 20 March 2005 the father attended at the Mater Hospital for further counselling. He was then taking Campril and had stopped using alcohol. The father’s symptoms had disappeared and it was agreed he need not attend further counselling unless he felt it was necessary.
[10] Exhibit “I”
On 6 February 2006 the father attended his general practitioner. He gave a history of drinking for 20 years with a pattern of binge drinking. At that stage the father said he was drinking 12 – 15 schooners daily or every second day. He said he enjoys the euphoria which alcohol induces but then becomes aggressive. In terms of bingeing the father said after three weeks abstinence, he wants to drink. He explained that during 2005, he had four months when he did not drink and was now concerned he may lose his daughter if he does not stop drinking. It appears the father was prescribed Antabuse and Campril. He was taking Zoloft provided by the maternal grandmother.
On 22 October 2006 the father attended his general practitioner. He said he had been drinking heavily and vomiting for the last two days. The doctor’s notes report the father as being: “Concerned about family issues and pressure of work assignments.” The father was given Maxilon for vomiting and Hyperemesis. Although it was suggested the father attended his General Practitioner on 27 December 2006, he was actually at F and the record created that day appears to be a practice print out and not a record of his attendance. The last time the father sought treatment for an alcohol related issue was thus 22 October 2006.
Twice the father has been convicted of alcohol related offences. Arising from charges on 15 December 1993, on 1 February 1994 he was convicted in the Local Court of using offensive language. He was released on a 12 month s 556A Recognizance to be of good behaviour. On 29 April 2003 he was convicted of driving on 19 January 2003 with mid range PCA. He received a 12 month s 10 Bond. In relation to this incident, the father was stopped by a roadside Random Breath Test Unit at 12.50 pm where he returned a blood alcohol reading of .095. The father admitted drinking approximately 12 stubbies of full strength beer and one vodka drink between 8.00 pm and 4.00 am. Given he was tested almost nine hours after he stopped drinking, the father must have been heavily inebriated the preceding evening. The father was the sole occupant of the vehicle.
Police COPS records[11] give some insight into the father’s behaviour when drunk. These show that at 3.40 am on New Year’s Eve 2000 there was an incident between the father and another male which police describe as follows:
At 3.40 am on 1 January 2000, police noticed two males standing in the car park opposite the […] RSL Club. Both persons were standing toe to toe and appeared to be gearing up for a fight. Police intervened and separated both parties who were yelling abuse at each other. Both parties had minor injuries consistent with being in a fight, however neither person wished to complain against the other. Both parties were advised to go their own ways, and leave whatever was going on, in the car park. Both persons were warned re their behaviour.
[11] Exhibit “L”
On 7 February 2004, the police records note:
The victim [the father] was drinking in the […] Bowling Club on the evening of 6 February 2004. While at the club he believes he has lost his mobile phone. The victim is a tourist staying at the […] Caravan Park. Judging by his level of intoxication on the morning of the report it is possible he may not have a clear recollection of his or the phone’s movements during the evening.
Two days later the father attended the local Police Station and informed them he had located his mobile phone. The child was with the mother.
At 9.30 pm on 24 January 2005, whilst the father was at a Hotel in F, his wallet and telephone were stolen. The child was with the mother.
On Sunday 29 January 2006 at 2.35 am, the father approached police outside the F Hotel. Police were conducting an investigation unrelated to the father. Police report the incident thus:
The POI [the father] was very unsteady on his feet and was extremely slurred in his speech. His breath smelt very strongly of alcohol and he admitted to being ‘pretty pissed’. The POI did not appear to have control of his movements, whether he was standing still or trying to walk. He was considered to be well effected by alcohol.
When asked where he had been drinking he pointed to the [F] Hotel. He could not remember how many drinks he had consumed but remembered he had been in the hotel for most of the evening.
The POI has demanded that police take him home as it was their duty to care for him being too drunk to walk. He was warned to move away as he was attempting to gain police attention and walked between the offender and police.
The POI was warned two times to move back or he may be arrested for hindering their investigation and he did so. One officer was required however to prevent the POI’s return on a number of occasions.
As a result of the POI’s continuing irrational behaviour he was given a direction to move on from the area surrounding the [F] Hotel. It took some explaining due to his intoxication, however after careful explaining of the consequences of not complying and being arrested he seemed to understand fully and walked along […] Drive away from police.
Throughout the entire interaction between the police and the POI, he argued that he knew the highway patrol police in [F] and that we as police owed him as a citizen a lift home. His level of intoxication did not appear that excessive that he could not walk home in relatively safety. He was encouraged to get a taxi however refused. The investigation of the stealing was stopped in order to keep the POI away.
When this incident occurred, the father and the child were staying with his parents. That evening, the father left the child at home with his sister, D.
The father has not come to police notice in relation to alcohol related incidents since.
The father said his account of binge drinking given to his medical advisers was exaggerated and designed to ensure he received the medication he thought he required to stop drinking. Even putting to one side the evidence given by the mother and her witnesses concerning the father’s alcohol consumption, the police records summarised above demonstrate the father has had a problem with excessive alcohol consumption for many years. His former wife, NM gave evidence in the father’s case and confirmed that during their relationship and following its breakdown the father was a heavy drinker.
Although I have reservations about much of the mother’s evidence, I am satisfied she has seen the father inebriated and when he has been inebriated he has, on occasion, sworn at her and been offhand with the child. In addition, where her parents describe the father appearing inebriated, he was. I am satisfied the father is a binge drinker, with his pattern of alcohol consumption moving between abstinence and binging. While he has been inebriated in the child’s presence, this has tended to occur when the mother and other family members were also present and caring for her.
The father’s proposed orders are set out in his Amended Response filed 7 May 2008. Essentially he wants to spend time with the child each alternate weekend and half school holidays. Although he indicated the weekends would alternate between Newcastle and F, during the hearing he suggested all weekends should take place in F.

Primary considerations

Both parties wish to have a meaningful relationship with the child. While the mother says the child should have a meaningful relationship with her father, she contends this is only to the extent doing so does not expose her to an unacceptable risk of harm. There is no definition of the term “meaningful relationship” in s 60CC(2)(a) but it appears to suggest the Court must give real weight and prioritise the benefits to the child of a good and healthy relationship with both its parents. The words do not define the amount of time a child spends with a parent. As the notation to the provisions reveals, one of the purposes of the provisions is to promote the importance of s 60B objects. The words are qualitative and indicate different formulations for different situations will constitute meaningful relationships. In this sense the words are both contextual and directive.
Later in these reasons I discuss the nature of the child’s relationships with her parents. In summary I am satisfied she has a happy and strong relationship with her father. She enjoys his company and identifies with him. The mother’s proposals will see this relationship diminish, with the amount of time and circumstances under which they will see other insufficient to maintain anything like a meaningful relationship. With this submission I agree.
Both parties agree the child will primarily live with her mother and there is no dispute they will maintain and continue to enjoy meaningful relationships.
Section 60CC(2)(b) constitutes one of the pivotal issues in the case. It requires that the Court considers the extent to which it needs to protect the child from physical and psychological harm and being subjected to and exposed to abuse, neglect and family violence. It is under this provision that I will consider the mother’s various abuse allegations. It is the mother’s case that the father’s proposal for unsupervised time places the child at risk of abuse. She contends the father is preoccupied with sex and concerning the risks to the child says: “… the father has no concern for anyone else apart from himself. I believe that the father believes that everyone enjoys sex irrespective of who the person is, the nature of the relationship and the nature of the sexual encounter. I also believe that the father will do anything to hurt me and if all he can do to hurt me is to hurt [the child], then he will hurt [the child].” In this context, the mother makes a raft of allegations, which she says whether considered individually or collectively, comprise an unacceptable risk of abuse and necessitate supervision of the child’s time with the father. I have not discussed in detail all of the evidence each and every allegation type which the mother submits constitutes an unacceptable risk to the child. The approach I have taken is to ensure the more significant incidents are traversed and to ensure, when weighing up the risk factors, this exercise is undertaken with all of the mother’s claims in mind.
The first issue I will consider is the mother’s allegations that the father sexually and physically abused her. Concerning sexual abuse, the mother says in about May 2002 the father raped her. On the occasion of the first rape, which occurred when the parties were living at M Street and thus could have occurred in July 2002, the mother says she and the child, who was then about three-four months old, were in bed. The mother describes the incident thus:
The father grabbed me and started to pull at my nightie and underwear. I scratched him and punched him and said, ‘I’m not having sex with you! We are not together!’ The father said: ‘I can do whatever I like’. The father grabbed and held both of my wrists with one hand then ripped off and slid my underpants over. As the father grabbed at my underwear I pushed and punched and scratched. The father continued with pushing or tearing at my underwear and inserted his penis. I continued to push and fight with the father. When the father had finished he got up and went to the study. I cried myself to sleep.
The mother says the child slept through this rape. Thereafter:
Until September 2003 excluding a period of one to two months, the father had sex with me without my consent no less than four times a month. For the first month or so I scratched and punched and pushed as he grabbed at me and my nightie and my pants. On each occasion I said, ‘I am not having sex with you! We are not together! Fuck off!’ The father ripped at or pulled at my underwear and inserted his penis without my consent.
These incidents occurred at M Street where the parties were living and by which stage the mother had returned to work and the father was caring for the child during the day. In cross-examination, the mother said there were occasions where her throat or wrists were bruised and her vagina torn. As I have earlier found, the mother regularly stayed overnight at her parents and in addition, the parties shared a family meal at the mother’s parent’s place each week. The mother saw her sister frequently. None of these people saw the bruises and scratches which the mother alleges. The mother says she covered the bruising. There is no medical evidence supporting the mother’s claims of vaginal tearing.
After a time, the mother says the associated physical violence with the rapes diminished, but in total the father raped her on about 68 times between mid 2002 and September 2003. Throughout all of these the mother says the child was in the bed and slept through the incidents. There is no doubt the child was often in their bed or the room when her parents had sexual intercourse. During this period the father says that the parties continued consensual sexual relationships, with the mother at times coercing him to have sex with her.

Section 60CC(3)(f) focuses on the parties’ parenting capacity. This is also connected to the manner in which they have exercised their parental responsibility. I have earlier made numerous findings concerning these issues which do not require restating. Simply put, both parties have the capacity to physically care for their daughter. The child has notable gait problems which both parents are aware of and capable of addressing. Both parents are capable of promoting their daughter’s educational interests and are equally well equipped to oversee her homework and academic pursuits. Provided the mother changes her approach to the importance to the child of a meaningful relationship with the father, she is able to adequately meet the child’s emotional needs. The mother has responded well to Ms O’s advice that she needed to work to improve the child’s attachment to her. The mother now needs to put similar efforts into reframing her approach to the child’s relationship with her father. Presently the mother has little motivation to change. The longevity and strength of her stance against the child and the father being able to enjoy appropriate time together, indicates that even if she works with a counsellor, improvement in this regard in the short or medium term is unlikely.
Provided the father is alcohol free he is capable of meeting the child’s physical, intellectual and emotional needs more than adequately. As the police records and other evidence concerning the father’s behaviour when drunk reveal, he is capable of being offensive, intrusive, violent and stupid. It is beyond dispute that when drunk the father’s usually sound judgment and appropriate standards of behaviour have failed him. It is inconceivable that he could think that it was appropriate to uninvited enter the mother’s parents home at night, or that it was reasonable to demand that the mother’s father collects him in the early hours of the morning from a railway station. His foul mouth and boorish behaviour commented upon by police is corroborative of the mother’s evidence he has yelled at her and the child. There is no doubt the father lied in an early affidavit when he denied his alcoholism and in attempting to create an impression that he regularly attended Alcoholics Anonymous. These lies suggest the father recalls his poor behaviour and tried to hide it from the Court.
Excessive alcohol use is well known as a disinhibitor. By this I mean, when effected by alcohol, people often behave with less regard for social mores. Simply put, intoxication may well weaken social taboos about inappropriate behaviour. In this case the father’s reaction to intoxication does not involve an increased risk of physical violence in the home, or sexual misbehaviour. To the child, the risks arising from her father’s intoxication lay in his verbally aggressive behaviour and inability to attend to her needs. Although the father is a binge drinker, he does not binge drink when caring for the child. On the occasions he and the child were at F, the father left the child with appropriate family members when he went out drinking. Before the parties stopped living together, the father drank to excess when the mother cared for the child. He did not drive with the child in the car when he was drunk but did have on the back of his pushbike. On other occasions it is likely the father cared for the child, prior to when the parties stopped living together, when he was drinking and on occasions when drunk. The child has not been harmed whilst with her father and the evidence suggests he has been able to balance his alcohol use with his child care responsibilities. While this has involved an element of luck as the child matures the risks arising from the father’s alcohol abuse lessen.
The father’s parents acknowledge he has a long term drinking problem. Since his return to F, they have seen a noticeable reduction in his alcohol consumption. The father says his last episode of binge drinking occurred in October 2006. During 2007 for the first time in years, the father held down responsible paid employment. He says, and I accept, he is motivated to do whatever is necessary in order to secure meaningful contact with his daughter. The father’s medical notes reveal his developing insight in October 2006 that unless he made real changes in relation to his alcohol consumption, he may lose his daughter. It appears the father has made significant gains in 2007 and into 2008 in the sense of his alcohol abuse. At no stage has he been affected by alcohol during his visits with the child. His history of alcohol abuse is of such duration, however, that more must be done and more time passes before I would be confident that in her father’s care, the child was unlikely to be exposed to his drinking or its aftermath. This risk is further moderated by ensuring the father has community and family supports to remain alcohol free and there are injunctions which require his abstinence. Although he has been less than fully compliant with orders, it is likely the injunctions will still have a positive impact.
The mother’s AVO application is outstanding, albeit the interim order has been discharged. It is my understanding the AVO hearing has been adjourned until after judgment in this case. While it is possible a final Apprehended Violence Order may be made for the mother’s protection from the father, there is no order which s 60CC(3)(k) requires I consider. If unsupervised time is ordered this will not expose the child to an unacceptable risk of family violence.
As far as possible, the Court should make orders least likely to lead to future litigation. In order that the father and the child have supervised visits until the child is 18 years makes future litigation unlikely. In a similar vein, detailed arrangements for the child and the father to spend time together and which address the child’s long term interests make the spectre of future litigation remote. Concerning the prospect of future litigation, there is no quantifiable distinction between the father’s, mother’s and Independent Children’s Lawyer’s stance. To the greatest extent possible I have tried to construct orders which address future circumstances so that the parties have a long term framework within which the child’s best interests are promoted. The risk of future proceedings is a factor which does not warrant significant weight.
There is considerable overlap between ss 60CC(3), (4) and (4A). Simply put, post separation the father has sought to have a far greater opportunity to participate in the child’s life than the mother permitted. Excluding telephone communication, the mother has made it as difficult as she possibly could for the father and the child to maintain their relationships. Her stance reflects poorly upon her. Whilst the father’s failure to maintain telephone contact with the child warrants criticism, its consequences are nowhere near as concerning as the mother’s failure to permit the father’s proper involvement in the child’s life. Unfortunately, the parties’ personal relationship is now poor and they are unable to communicate face to face or by telephone. Neither wishes to have anything to do with the other. During the hearing the mother presented as a confident and as far as the father’s relationship with the child is concerned, controlling person determined to have her own way concerning their daughter. This is unlikely to change. The father appeared less assertive and personally distressed by the nature and ferocity of the mother’s attack on him. These adults do not trust each other and it is difficult to see how their personal relationship may improve.
Since separation the father has paid child support. Between 1 January 2007 and 31 December 2007 he paid $413.93, which is $7.96 per week. For the period 1 January 2008 to 9 May 2008 he paid $617.19, which is $33.24 per week.[13] The father says he has paid more, but his evidence on this issue is less compelling than the mother’s. The mother retains a Newcastle Permanent saving passbook into which she deposits child support and family tax benefits. The account is held in trust for the child which presently has $7,502.92 credit balance. The savings deposit passbook is consistent with the mother’s evidence. Although the amount of child support paid is manifestly inadequate, one has to consider the father’s ability to pay more. In 2007 he was working as a casual employee living in rented accommodation at E. He is a casual employee which means he is paid when he is working but not otherwise. The mother on the other hand has permanent fulltime employment and apparently receives income from her investment properties. Her financial circumstances are sufficient that she has been able to build up a sizeable account in the child’s name without having to draw on it for the child’s expenses. Although this does not relieve the father of making proper contribution to his child’s expenses, it reveals that to date his capacity to do so has been limited. As the father’s financial circumstances improve, the application of the child support formula is likely to result in his being required to make more appropriate financial contributions to the child’s expenses.
[13] Exhibit “T”

Conclusion

Having regard to my findings the presumption of equal shared parental responsibility is rebutted. However, this is not the end of the matter. If the Court is satisfied it is in the child’s best interests that the child’s parents should have equal shared parental responsibility this can be ordered. Putting to one side the mother’s attitude to the father, the parties share similar ambitions for their daughter. Both parties want the child to enjoy all life can offer her. It appears both are keen she achieves academically and whatever talents she has she is given the opportunity to enjoy. Although not given the opportunity to contribute to the decision the mother took concerning the child’s schooling, the father agrees with it. When living together the parties agreed upon the child’s day care and pre-school arrangements. There were no obvious difficulties making necessary decisions for her. The father’s stance against the child travelling to Canada focused on his needs and not hers. The mother’s stance against the father and the child enjoying a proper relationship focuses on her and not the child’s needs. If on major long term issues the parties focus on their rather than the child’s interests, disputation is likely. As the parties showed whilst they cohabitated, when they focus on the child’s interests they are able to agree.
I have struggled with the consequences for the child if, by ordering equal shared parental responsibility, necessary decisions will be delayed or not taken at all. Obviously such an outcome is avoided if an order for sole parental responsibility is made. As it is agreed the child will live with her mother, an order for sole parental responsibility could only work if made in the mother’s favour. My concern and ultimately the factor which militates against such an order, is that the mother is highly likely to misuse a sole parental responsibility to maintain her vendetta against the father. If the parties have equal share parental responsibility the mother could not, without the father’s consent or an order, involve the child in counselling or other processes designed to prove, for example, sexual abuse by the father of their daughter. While an injunction restraining the mother from taking the child to counsellors, child protection agencies and the like for further exploration of the issue would achieve this outcome, an order for sole parental responsibility in the mother’s favour gives inadequate recognition of the father’s ability to make sound parenting decisions for his daughter.
While it will make decision making a slower process than if the parties had a reasonable relationship, there are agencies, for example Family Relationship Centres and mediators who the parties can engage when a major long term issue requires consideration. Having regards to the child’s age and these orders, major long term issues should rarely arise and where they do, they ought to generally arise with reasonable advance notice that an issue requires attention. When they do the parties can discuss and negotiate by email or other correspondence. The point is they will be required to consult and make a genuine effort to reach consensus. Section 65DA(c)(4) provides a safety net to others dealing with the parents when concerned with major long term parenting issues. Although consensus is unlikely to be easily achieved and may raise the spectre of future proceedings, from the child’s perspective she will see her parents are equally significant. Such an outcome reinforces the child’s identity to each of her parent’s and positively reinforces her relationships with them.
Neither party contends that dividing the child’s time equally between them is reasonably practical. With this I agree. In a similar vein and while the parties live so far apart, it is not reasonably practicable for the child to have substantial and significant time with each of her parents. Nonetheless, an outcome as close as possible to the father and the child enjoying substantial and significant time with each other is appropriate. This is the only way the Court can deliver to the child the benefits of meaningful relationships with both of her parents. So that it is plain, promoting a meaningful relationship for the child with her father does not involve an unacceptable risk of abuse or harm. If it did, the former must give way to the latter. In coming to a view that the father does not present an unacceptable risk to the child of the type the mother alleges or at all, I am conscious my findings differ to Dr R’s recommendations. Through no fault on her part, Dr R was in material respects misled by the mother and some of the documents to which she had access. This hearing afforded me a superior opportunity to explore all of the evidence and I am confident it is appropriate to depart from her opinion about the risks to the child if she has unsupervised time with her father.
For the child, the only outcome which results in her enjoying the benefits of meaningful relationships with both her parents is if she has unsupervised visits with her father which reasonably promptly progress to weekends and thereafter holiday visits. So as to reinforce the gains the father has made in controlling his alcoholism, he is required, as a condition of progressing to overnight visits, to attend upon his general practitioner and a drug and alcohol counsellor. For the next three months he shall abide their direction as a precondition for progressing to overnight visits. If his drug and alcohol counsellor recommends that the father continues counselling thereafter and/or attends Alcoholics Anonymous meetings, the father must do so. Within ten weeks, the father shall file an affidavit to which he attaches a report from his medical practitioner and drug and alcohol counsellor confirming his attendance and, to the extent that they can be confident of it, his compliance with their recommendations.
Whilst this process is underway, the father’s mother, brother or sister will participate in his visits with the child. I take into account the mother’s claim to Dr R that his parents are heavy drinkers. The mother has not spent enough time with the father’s parent’s to know how often they consume alcohol or its effect when they do. The evidence concerning their alcohol consumption was insufficient to suggest they would allow alcohol to impair their ability to keep a watchful eye over the visits or fail to intervene if required. The family members do not need to strictly supervise but before the visits start, whomever shall be attending, is required to file a written undertaking to the Court indicating she or he agrees to be substantially present during the visits and end it if the father is affected by alcohol. These arrangements will last for three months following these orders. This is sufficient time to settle the child into longer periods with her father and to ensure the father has community supports in place to help him minimise his alcohol consumption.
Thereafter and until the end of the Easter 2009 school holidays, the father will have overnight visits with the child provided he stays at his parent’s home. The parties and the child have previously stayed with them and I infer from their support for the father’s case, they will cooperate by making the child welcome. Beyond that time it would be unreasonable to require the father to always have the child at his parent’s home when she is with him overnight. She needs the opportunity to spend time with her father in his home and generally immerse herself in his life. This will round out her understanding of her father and promotes their relationship.
The Independent Children’s Lawyer submits in favour of weekend visits each three weekends during school term. Each weekend involves at least ten hours driving for the return journey. For the driver, at the end of a working week, it is tiring and in the dark of night quite risky. For the child this journey will be tiring and is likely reduce her ability to focus on school on Mondays. While the father is travelling to see the child in Newcastle this is not an issue. For the child, one return trip to F each four weeks during school term is more appropriate and as much as she can reasonably cope with. To have the parties making the trip during school term more often is unreasonable, even if they meet halfway. Because the frequency is less than ideal, in order to give the child a reasonable amount of time with her father, she will have more than half of the shorter school holidays with him and as far as possible every long weekend during school term. The father does not work during school and public holidays and is available for her. On the other hand the mother probably has no more than four or five weeks annual leave and is unable to count on having half of all school holidays as recreation leave.
Although it is unlikely, it is possible the father may find work at some stage in the future closer to Newcastle than F. So as to limit the prospect of future proceedings, my orders address this possibility. The only appropriate change is a different changeover point with the parties still being required to equally share the effort associated with travel. I contemplated but rejected increasing the frequency of the father and the child’s school term weekends if this eventuality arises. As such a change in the father’s circumstances is unlikely for a long time, by then the child will be well settled into the arrangement of monthly visits with her father, long weekends and longer school holidays. Keeping the rhythm of that routine reduces the risk of arguments between the parties and exposing the child to unnecessary disputation.
I consider it important the child sees each of her parents making some effort to facilitate her relationship with the other. The best way this can be demonstrated is through their sharing the driving. During school term, if the father collected the child from Newcastle at 9.00 am she would not arrive in F until about 2.00 pm. In order to have her back by 5.00 pm the following day, the child would need to leave no later than 12 noon. This is barely enough time for the child and the father to participate in any activities. So that travel does not consume so much of the weekend, a better arrangement is that the parties meet halfway. That way the father and the child will be in F by about 11.30 am and they need not leave until about 2.30 pm. In winter, this has part of the journey driven during darkness, an outcome I was keen to avoid. However the other options needed to avoid this involve reducing the amount of time the child spends with her father, limiting its location to Newcastle or having one or both parties undertaking long return journeys, involving even longer night driving. My orders take these considerations into account and attempt to provide the best balance between these competing factors. For school holiday changeovers time pressures are less compelling and make midday changeover desirable.

Concerning the changeover venue, there are few options. Although there are contact centres at F and Newcastle, there are none in between. When D was supervising, she facilitated changeovers with the mother’s sister at McDonalds. These went well. Whilst changeovers take place in Newcastle, with the father’s accompanying person present, perhaps also a member of the mother’s family, the parties will be able to ease back into changeovers which do not formally involve Ms W or another neutral person. Once changeovers are occurring midway it is likely the parties will be primarily responsible for delivering and returning the child. It will be distressing for her if she hears or sees her parents behave unpleasantly towards each other. It is also damaging for her to see her parents snub each other. There have previously been unpleasant exchanges, initiated by the father at changeover. These are symptomatic at his distress at the mother’s allegations and the conditions under which he has been permitted to see his daughter. With these proceedings ended and to a considerable extent the father’s parental relationship with the child restored, these tensions should dissipate.
Most people are unlikely to behave poorly in public. By ordering changeover at a public place the parties are less likely to behave towards each other in a manner which distresses the child. Police station changeover is another possibility. However it is not police business to oversee the collection and return of children in private family matters. Involving police sends a dark message to the child about her parents. It is neither necessary nor appropriate in this case.
So as to ensure the parties each have necessary information about their daughter there is an order requiring each to ensure school and medical authorities are authorised to release information to each of them. Such an order does not intrude upon these agencies privacy policies. Simply put if the agency is authorised by its own policies or applicable laws to release information to a child’s parent, this order does no more than entitle these parents to request it.
Finally there are injunctions, which were proposed by the Independent Children’s Lawyer, restraining the father from showering, sharing a bed and the like with the child. The purpose of these is to clearly delineate for the family appropriate boundaries and, more significantly afford the mother a greater degree of comfort while the child is with her father.
For these reasons I am satisfied the orders identified at the start of this judgment are in the child’s best interests.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate:

Date: 10 September 2008

[2008] FamCA 772

10 August 2008

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