SURNAM & CROMIE
[2010] FamCA 470
•11 June 2010
FAMILY COURT OF AUSTRALIA
| SURNAM & CROMIE | [2010] FamCA 470 |
| FAMILY LAW – CHILDREN – with whom a child lives – where the child lives with the mother – where there are allegations of sexual and physical abuse by the father – best interests – not satisfied that abuse has occurred or that there is any risk of abuse – satisfied that the father is able to promote a meaningful relationship with the mother – orders made that the child live with the father and spend time with the mother FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties are unable to communicate effectively – where it is not in the best interests of the child for the parties to have equal shared parental responsibility – father to have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZW, 69ZN, 69ZT |
| M & M (1988) 166 CLR 69 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 M & F (2006) 36 FamLR 519 |
| APPLICANT: | Mr Surnam |
| RESPONDENT: | Ms Cromie |
| INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
| FILE NUMBER: | BRC | 5724 | of | 2008 |
| DATE DELIVERED: | 11 June 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 10-12 March 2010 & 15-18 March 2010 |
REPRESENTATION:
| COUNSEL FOR THE APPLICANT: | Mr Foley |
| SOLICITOR FOR THE APPLICANT: | Geldard Sherrington Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Curran |
| SOLICITOR FOR THE RESPONDENT: | Morton & Morton |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
Orders
The father have sole parental responsibility for A born on … March 2004.
The child A live with the father.
The father (or if the father directs either Ms H or Ms K) collect the child A from the Child Minding Centre Brisbane Registry this day.
The child A attend counselling with a suitably qualified counsellor nominated by the Independent Children’s Lawyer with such counselling to continue as recommended by the counsellor in consultation with the father and the Independent Children’s Lawyer.
The mother is restrained and an injunction is granted restraining the mother from being in the presence of or communicating with the child in any manner for a period of one [1] month from this date without the prior consent of the father.
After 12 July 2010 the mother spend time with and communicate with A at all reasonable times as may be agreed between the mother and the father but failing agreement as follows:
(a)during the week of 12 July 2010 and thereafter for two [2] hours in each of the weeks commencing 19 July 2010; 26 July 2010 and 2 August 2010 supervised at the Y Contact Centre on days and times to be arranged with the Contact Centre;
(b)on three [3] alternate weekends from 9.00 am Saturday to 5.00 pm Sunday commencing on Saturday 14 August 2010; Saturday 28 August 2010 and 11 September 2010;
(c)from Friday 24 September 2010 during each school term each alternate weekend commencing at the conclusion of school on Friday until the commencement of school on Monday;
(d)from the commencement of the Queensland gazetted school holidays in December 2010 the mother shall have the first half in even numbered years and each alternate year thereafter, and the second half in odd numbered years and each alternate year thereafter.
For the purposes of Christmas Day the parent that is spending time with the child for the first half of the school holidays shall spend from 3.00 pm Christmas Eve to 12 Noon Christmas Day with the child in that year and every alternate year thereafter and the parent that is spending time with the child for the second half of the school holidays shall spend from 12 Noon Christmas Day to 5.00 pm Boxing Day in that year and every alternate year thereafter.
Should Mother’s Day fall on a day when the child is not spending time with the mother then the child spend time with the mother from 9.00 am on Mother’s Day to 5.00 pm on Mother’s Day.
Should Father’s Day fall on a day when the mother is otherwise allocated time with the child the mother shall return the child to the father by 9.00 am on Father’s Day.
For other special occasions such as the child’s birthday, the child’s siblings (including the child’s half-siblings and step-siblings) and each parent’s birthday respectively the parent that is not spending time with the child shall be entitled to spend time with the child between 4.00 pm and 6.30 pm on those days.
SAVE AND EXCEPT for the time spent referred to in paragraphs 6(a) and 6(c) hereof handovers at the commencement and conclusion of the mother’s time shall take place at the B Police Station unless otherwise agreed between the parties in writing.
Handovers for the time spent referred to in paragraph 6(c) hereof shall take place at the school attended by the child.
Each party shall keep the other informed of any change of address and/or contact telephone number within twenty-four [24] hours of making such change.
Each party shall notify the other by telephone of any serious matters concerning the child’s health, being any illness or injury suffered for more than forty-eight [48] hours, and as soon as practicable in the event of hospitalisation, serious illness or accident.
This order is sufficient authority for each school attended by the child to allow both parents to participate in parent/teacher interviews and discuss the education of the child, to forward to both parents copies of all reports and notices concerning activities to be undertaken by the child, and to permit both parents to attend all school activities SAVE AND EXCEPT that the mother is restrained from being in the presence of the child at the school for a period of one [1] month from this date.
This order is sufficient authority for each medical practitioner, dental practitioner and counsellor to discuss and supply to both parents reports as to the health of the child on an ongoing basis as requested by that parent.
Both parties are restrained and an injunction is granted from allowing the child to attend counselling at the W Sexual Assault Service.
Both parties take such steps as are necessary to ensure that the child is registered under the surname of “Surnam” and thereafter both parties ensure that the child is known by and uses the surname “Surnam” and no other surname.
The appointment of the Independent Children’s Lawyer be discharged twelve [12] months from the date of this order.
The Independent Children’s Lawyer, the mother and the father are at liberty to provide copies of this judgment and the Magellan Report to the Department of Communities staff and to any counsellor, psychologist or therapist treating the mother, father or the child A.
A Family Consultant do immediately attend upon the child and explain to the child the orders made today.
Notwithstanding paragraph 5 hereof the mother is permitted to speak briefly to the child today in the presence of the Family Consultant.
Within forty-eight [48] hours the mother deliver to the father at the Y Centre, all the child’s personal belongings including but not limited to all toys, games, electronic equipment, clothes, shoes, books, school accessories and sporting equipment.
IT IS NOTED that publication of this judgment under the pseudonym Surnam & Cromie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: BRC 5724 of 2008
| MR SURNAM |
Applicant
And
| MS CROMIE |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings for parenting orders concern the child A who was born in March 2004. The proceedings are between the applicant father Mr Surnam and the respondent mother Ms Cromie. Initially, the issues to be determined related to the time the father should spend with the child and whether it should be supervised. There was also a dispute as to whether there should be sole or equal parental responsibility. During the trial, and after the receipt of reports and evidence, the main issue to be determined was with whom the child should reside.
The mother maintained that the child had been sexually abused by the father. The father strongly denied any inappropriate behaviour.
Hearing
The trial commenced on 10 March 2010. The applicant father was represented by Mr Foley, the respondent mother by Mr Curran and the Independent Children’s Lawyer by Ms Kirkman-Scroope.
On Wednesday 10 March 2010 the mother applied to adjourn the trial. The Magellan Report had only recently been received. After considering the submissions of counsel the Court refused to grant the adjournment and proceeded with the trial. (Giving ex-tempore reasons).
The trial continued until 18 March 2010 when judgment was reserved and the following consent orders made:
“PENDING DELIVERY OF JUDGMENT BY CONSENT IT IS ORDERED THAT:
1.Both parties are restrained and an injunction is granted restraining them from permitting the child [A] to attend counselling at the [W] Sexual Assault Service or any other therapy or counselling without the written consent of the other parent and the Independent Children’s Lawyer.
2.On the day judgment is to be delivered the mother ensure that the child [A] attend the Child Minding Centre of the Brisbane Registry and remain there until after the delivery of judgment (it being proposed that a Family Consultant explain the final orders to [A]).
3.Within seven [7] days from today both parties immediately do all things necessary to enrol at the [Y] Contact Centre, [B] in the State of Queensland.
4.Leave is given to the Independent Children’s Lawyer to release a copy of the Family Report and the Magellan Report to anyone agreed upon as a counsellor and a copy of my Orders.”
Background and chronology
The father was born in 1979 and is aged 31. The mother was born in 1985 and is aged 25.
The mother had a relationship with Mr J. The child of this relationship R was born in July 2002.
R has resided with the mother apart from a few months in 2007.
The parties were married December 2003.
The child of the parties, A, was born in March 2004 and is now aged 6.
The parties initially separated in April 2004. They reconciled later that year for several months. The final separation occurred in November or December 2004 in circumstances which are in dispute.
In February 2005 the mother and father attended a Family Dispute Resolution Conference at Legal Aid and as a result a consent order was made when both parties were represented by solicitors. The consent order of 9 February 2005 provided:
“By Consent it is Ordered:
1.That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child [A] born […] March 2004.
2.That the parties have the sole parental responsibility for making decisions about the day to day care, welfare and development of the child while in their respective care.
3. That the child will reside with the mother.
4.That the father will have contact with the child at all times as may be agreed, but failing agreement as follows:-
(a)for three (3) months from the date of these orders:
(i)every Tuesday from 1.00 pm to 5.00 pm;
(ii)every Sunday from 11.00 pm (sic) to 3 pm;
(b) after three (3) months from the date of these Orders:
(i) every Tuesday from 1.00 pm to 5.00 pm;
(ii) every second Sunday from 10.00 am to 3.00 pm;
(c)after six (6) months from the date of these Orders:
(i)every Tuesday from 1.00 pm to 5.00 pm;
(ii) every second Sunday from 9.00 am to 5.00 pm;
(d)for four (4) hours on Father’s Day;
(e)for four (4) house on the child’s birthday;
(f)for four (4) hours on Christmas Day.
5.Changeover shall take place at the McDonalds Restaurant [at P].
6.The Father give the Mother not less than 24 hours notice of his intention not to exercise any period of contact.
7.That neither party shall discuss any matters in dispute between the parties with or in the presence of the child, nor denigrate the other or other’s partner in the presence of the child.
8.That the parties keep each other informed of their present residential address and telephone number and keep each other informed of any changes of address and telephone number.
9.That the parties immediately notify the other parent of any medical emergency or serious illness/injury relating to the child.
IT IS NOTED THAT the parties intend to review the parenting orders after 12 months.”
The consent order is signed by both of the parties and their solicitors.
The mother describes this as an order which “provided for care arrangements for a period of 12 months”. There is a dispute about the breakdown of the arrangements for the father to continue to see the child at the conclusion of the 12 month period.
In about November 2006 the father commenced a relationship with his current partner, Ms K. They have been living together in a defacto relationship. They have a child of that relationship, N who was born in July 2009.
In around 2006 the mother commenced a relationship with Mr I. For approximately five months they lived in the same residence and then maintained their relationship whilst living separately.
The mother says that “In October 2006 I broke up with my fiancé ([Mr I]) and became extremely depressed …and later became even more depressed which resulted in one occasion when I left my two children unattended and unsupervised”. (Paragraph 20 of the mother’s affidavit filed on 4 February 2010 (document 20)).
Mr I said that this occasion occurred on 19 October 2006. The children were R, who was then aged four and A then aged two. The mother had left the children home by themselves. They subsequently were found by the police in the streets without any adult. The children were returned to the mother’s care. The next day the mother took the children to childcare and went to work. After an argument with her friend, Mr I, the mother arranged for the children to be collected from childcare by another friend. She took an overdose of prescription drugs in an attempt to commit suicide. She was discovered, taken by ambulance to hospital and released after two days.
The mother admits that upon release from hospital she enjoyed the “party scene and began drinking large amounts of alcohol and experimenting with illicit drugs”.(Paragraph 23 of mother’s affidavit (document 20)).
In about early March 2007 the mother placed A in the care of the father and R in the care of his father.
She formed a relationship with her current partner, Mr Cromie and commenced living with him in April 2007.
Mr Cromie was born in 1981 and is aged 28. The mother and Mr Cromie were married in October 2008. There is one child of that relationship, S who was born in November 2008. The mother is expecting another child by Mr Cromie in July 2010.
In his affidavit of evidence-in-chief filed on the 4 February 2010, Mr Cromie refers to being arrested in May 2008 and charged with drug offences. He says “I received an 18 month imprisonment sentence and was released on immediate parole”. There were further issues concerning Mr Cromie’s disclosure of his criminal record.
When A was living with the father, the mother spent some time with A. In October 2007 the mother contacted the father and told him she would not return A, but that he could have occasional overnight visits.
On a weekend in October 2007 R and A spent time with the maternal grandmother. The mother’s evidence is that as a result of the behaviour of the children when they returned to her care she had a discussion with R in which R reported to the mother that he and A had performed oral sex upon each other at the “old house” where the mother and Mr Cromie had previously lived. He said that during the recent visit to the maternal grandmother’s home A had wished to do it again, but R had resisted. The mother’s evidence is that R had said that A had told R that he had learnt these things from his father “Dad [L]”. The mother “immediately gave him a hug and said to him that he was a good boy for saying no”. (Paragraph 35 of the mother’s affidavit filed on 4 February 2010). The mother then had a discussion with A. When she asked A about “what [R] had said he told me he had learnt it from his Dad [L] on his computer”. (Paragraph 36 of the mother’s affidavit filed on 4 February 2010).
R was then five and A three.
Prior to this conversation between the two boys, the maternal grandmother had not reported anything to the mother. The mother then telephoned her mother who relayed similar information to her.
It is the mother’s evidence that she immediately sent a text to the father saying she would not be allowing him to see A again. It is alleged that the father replied “guess I will see you in Court”. (Paragraph 39 of the mother’s affidavit filed on 4 February 2010).
The father has not spent time caring for A since October 2007.
The father did not take any action immediately.
The mother confirms that in about the middle of 2008 she became aware that the father wished to spend time with A and was seeking mediation. The mother refused to attend. She said that it was at about this time she “realised that I had to do something about what [A] had said”. In August 2008 she took A to a Police Station and spoke to a Juvenile Aid Bureau officer. The mother says that although the police officer spoke to A “he would not really speak to her but had told her something about his Dad doing something rude and that there was a computer”.
In early 2009 the father commenced proceedings seeking parenting orders and a location order. The Federal Magistrates Court made a location order in April 2009. On the first return day the mother did not appear. On the adjourned date of the 28 May 2009 the mother attended the Federal Magistrates Court and made allegations that the father was not the father of the child. As a result DNA testing proceeded which concluded that the father was indeed A’s biological father.
The mother then contacted the Department of Child Safety whom she says referred her to the Kids Intervention Prevention Program (KIPP).
The mother refers to observations in relation to A, including difficulties with his bowel movement and general behaviour problems including attempting to place objects in his bottom and inappropriate interaction with other children.
The mother has been taking A to counselling at W Sexual Assault Service.
The mother alleges that A has continued to make comments to her about abuse by the father, doing drawings which depict the abuse and speaking to the counsellors about the abuse.
After the parentage testing confirmed that the father was the biological father of A, the matter was transferred from the Federal Magistrates Court to the Family Court of Australia with interim orders being made on 14 July 2009 that A live with the mother and there be no order for the father to spend time with the child. An Independent Children’s Lawyer was appointed for A.
When the matter was referred to the Family Court of Australia it was designated as a Magellan matter. Orders were made pursuant to section 91B requesting the intervention of the Director-General of the Department of the Communities (Child Safety Services).
By order of 22 July 2009 the parties were directed to attend upon a Family Consultant for the purposes of the preparation of a family report. The matter was listed for directions before the Magellan Judge in the Brisbane Registry on 13 November 2009.
A Registrar made an Order in Chambers releasing to the parties and their representatives the report of Family Consultant Ms D of 23 September 2009. Ms D, the Family Consultant, had prepared the report after considering the documents, interviewing the parties and A.
During the interview A was described as having made “clear disclosures of alleged sexual and emotional harm”. Directions were then made to prepare the matter for trial, including leave to issue certain subpoenas for documents.
In February 2010 the matter was fixed for a three day trial commencing on 10 March 2010. Included in the directions noted on 19 February 2010 was the note: “the section 69ZW report from Department of Communities be released once available”.
The Department of Communities Magellan Report signed by Ms Y is dated 8 March 2010. It raised significant issues for the parties and Independent Children’s Lawyer to consider.
Orders sought and submissions
The Initiating Application filed by the father in March 2009 sought orders which included that “[A] live with the mother, the parties have joint responsibility for the long term care and welfare decisions concerning the child. That each parent be solely responsible for day to day care, welfare and decisions of the child whilst the child is in their respective care” and that the father spend time with the child:
“at all times as may be agreed between the parties but failing agreement as follows:
(a) from Friday 5.00 pm to Sunday 5.00 pm each alternate week;
(b) one half of all gazetted school holidays …
(c)reasonable telephone communication.”
The father sought other related orders and special occasion orders.
At the commencement of the final hearing before the Court in March 2010 the Court received the Summary of Argument filed on behalf of the father which sought orders about equal shared parental responsibility and that the father spend time on a graduated basis leading to alternate weekends and every Tuesday evening and half the school holidays (5 March 2010).
On 10 March 2010 the father sought those orders including injunctions restraining the mother from allowing A to attend the W Sexual Assault Clinic and proposing that for a period of time the father have time with A supervised, that A attend counselling and that the final orders application so far as residence of A be adjourned for a period of six months. The father also sought orders restraining the mother from referring to or registering A under any name other than A Surnam.
By 15 March 2010 the father amended the orders he sought to seek an order that, subject to such transitional arrangements as the Court may deem appropriate, A live with the father or in the alternative the orders which he sought on 10 March 2010.
Following further evidence and at the conclusion of the proceedings on 18 March 2010 the father sought orders that A live with him, that A attend counselling with a suitably qualified counsellor nominated by the Independent Children’s Lawyer, such counselling to continue until the Independent Children’s Lawyer deems it not further necessary and that the mother spend time and communicate with A as agreed but failing agreement for a period of one month there be no contact with the mother or maternal grandparents, thereafter supervised time at a contact centre at B for a period of one month and thereafter from 4.00 pm Friday until 5.00 pm Sunday and on alternate weekends and half the school holidays and special occasions. He sought specific orders concerning other ancillary matters.
In her Response to the Initiating Application filed on 13 November 2009 the mother sought orders as follows:
“1.That the child off the relationship [A] (hereinafter referred to as “the child”) born […] March 2004 live with the mother.
2.That the mother have long term parental responsibility for the child’s care, welfare and development.
3.That the father spend time with the child as agreed.
4.That the father telephone the child at all reasonable times.
5.That both parties advise the other of any change of residential address or telephone number within 48 hours of such change.
6.That the child continue with counselling/therapy.
7.That the (sic) prior to the father spending time with the child, the child’s counsellor be of the view that the child feels safe and secure in his relationship with the father.
8.That prior to the father spending time with the child, the father attend upon a counsellor for at least eight (8) sessions to work to gain an awareness of the child’s experiences and the effect upon the child.”
In the case outline filed on behalf of the mother on 3 March 2010 the following final orders were sought by the mother:
“1.That the child [A] (hereinafter referred to as “[A]”)
2.That the Mother have sole parental responsibility for the child’s care, welfare and development.
3.That both parties advise the other of any change of residential address or telephone number within 48 hours of making such change.
4.That an injunction issue to restrain the Father from coming within sight or hearing of the child or from coming to or near any place that the child attends.”
As previously indicated, during the trial the mother made application to adjourn the trial for six months on certain conditions, including that the mother, father and child attend upon a qualified therapeutic counsellor/family therapist with a view to engaging in a therapeutic process and reintroduction of the child and the father, that the mother and father attend for psychiatric assessment as directed by the Independent Children’s Lawyer and that the child commence spending time with the father, either in accordance with recommendations of the therapeutic counsellor/family therapist or agreed to by the parties or “alternatively and in any event on a date not later than a date within three months of the child’s first attendance upon the therapeutic counsellor/family therapist.” This time spent was to be at the contact centre in B.
This application for an adjournment of the trial was refused. At the conclusion of the trial submissions on behalf of the mother indicated that the mother proposed that A live with her and that A be separately assessed and that the mother have counselling. The mother continued to seek an interim order which provided for A to live with the mother, for the assessment and counselling to take place and for the matter to return to the Court thereafter for further consideration.
In the case outline of the Independent Children’s Lawyer filed in February 2010 the Independent Children’s Lawyer appropriately did not take a position as to the proposed orders pending the testing of all of the evidence.
At the beginning of the trial in March 2010 the Independent Children’s Lawyer proposed that A live with the mother, that both the mother and father attend upon a therapist for the purposes of reintroduction of the child to the father, that both mother and father have psychiatric assessment as directed by the Independent Children’s Lawyer and that there be an injunction restraining the mother from taking A to the W Sexual Assault Service. The Independent Children’s Lawyer also proposed that the child commence spending time with the father in accordance with the therapist’s recommendations or “order of this Honourable Court”. She was proposing that the time spent be initially supervised and other ancillary orders providing for the trial to be adjourned for no longer than six months.
Later during the trial the Independent Children’s Lawyer sought different orders including that the maternal aunt Ms H be joined as a party to the proceedings, that A live with the father, but that for a transitional period of nor more than two months, A live with his maternal aunt and attend counselling for the purposes of reintroduction to his father. The Independent Children’s Lawyer proposed certain other ancillary orders and that the mother spend time with and communicate with A at specified times. There were detailed specific proposed orders concerning the arrangements for the child such as schooling and counselling. (23 paragraphs in all).
Ms H was not joined as a party to the proceedings.
Main issues
The mother alleged that A had made statements which she believed indicated that A had been sexually and physically abused by his father. The father strongly denied the allegations of any abuse of A. He maintained that the mother was psychologically and emotionally abusing A by encouraging him to believe he had been sexually abused and by preventing him having a relationship with his father.
Other issues arose in relation to the parents’ capacity to provide appropriate parenting for A, particularly in the context of the mother’s history of drug abuse, her partner’s criminal history and drug abuse and allegations concerning the mother’s stepfather.
The mother asserted that A was afraid of his father and would not cope emotionally or psychologically if required to spend any time with him unless it was carefully monitored and supervised.
The Law
Part VII of the Family Law Act 1975 (Cth) applies to children. The objects of the part and the principles underlying it are set out in section 60B.
Section 60B
(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 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.
Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations are set out in detail under section 60CC(3) which will be referred to later.
Section 61DA provides:
Section 61DA
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA provides;
Section 65DAA
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) 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
(b) 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
(c) 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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In this particular matter section 69ZW is relevant.
Section 69ZW
Evidence relating to child abuse or family violence
(1)The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
(2)The documents or information specified in the order must be documents recording, or information about, one or more of these:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
(3)Nothing in the order is to be taken to require the agency to provide the court with:
(a)documents or information not in the possession or control of the agency; or
(b)documents or information that include the identity of the person who made a notification.
(4)A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.
(5)The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
(6)Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
(a)the person consents to the disclosure; or
(b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
(7)Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:
(a)is notified about the intended disclosure; and
(b)is given an opportunity to respond.
The above are the sections most relevant to these proceedings, however the Court takes into account all of the provisions of the Act and in particular Part VII.
In M & M (1988) 166 CLR 69 the High Court of Australia discussed cases dealing with allegations of sexual abuse and said:
“21.Viewed in this setting, 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 interests 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.
22.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] HCA 34; (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.
23.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.
24.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.
25.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) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 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.”
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 the Full Court considered the authorities and at paragraphs 18 and 19 said:
“18.In setting out those authorities it does not appear that his honour paid any attention to the views of the Full Court in WK v SR where the court emphasised the very high standard by which a court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19.The termination of a worthwhile relationship between the parent and child ought to in most cases be the course of last resort. The court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The court needs to be (sic) remain conscious of this imperfection at all times.”
Division 12A of Part VII applies to these proceedings.
Section 69ZN provides:
Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZT provides:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
In M v F (2006) 36 Fam LR 519 at paragraphs 9 to 15 inclusive Thackray J sets out a useful summary of the approach to allegations of sexual abuse:
“Approach to allegations of sexual abuse
9.It is vital for the many people interested in Steven’s welfare to understand the role of the Family Court in dealing with allegations of sexual abuse. The well-accepted maxim of our criminal justice system that “it is better for 10 guilty men to go free than one innocent man be convicted” has no application in a jurisdiction where the best interests of the child are the paramount consideration.
10.The approach adopted in cases involving sexual abuse allegations prior to the recent amendments was enunciated by the Full Court of the Family Court of Australia in In the Marriage of M and J M Bieganski (1993) 16 Fam LR 353 ; (1993) FLC 92-357 (Bieganski) and the High Court of Australia in M v M (1988) 166 CLR 69 ; 82 ALR 577 ; 12 Fam LR 606 ; (1998) FLC 91-979. The Full Court in Bieganski outlined the approach (at Fam LR 364; FLC 79,777–81):
“The Family Court is a civil court in which trial judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will not be suspended, whereas if the allegation be not proved, then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a) that the allegation is proved; or
(b) the allegation is not proved; or
(c) there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent has sexually abused a child but whether in all the circumstances of the case access should or should not take place, following a consideration and evaluation of the various matters referred to in s 64(1), including any findings in relation to child sexual abuse, with the overriding principle being the paramountcy of the welfare of the child.
It follows, therefore, that the proper venue for the determination of the guilt or innocence of the parent of a child to an allegation of child sexual abuse is the State criminal courts and not the Family Court.
The law recognises two standards of proof — the criminal standard and the civil standard, although the civil standard may vary according to the gravity of the finding to be made as the following passage from the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 ; [1938] ALR 334 at 342 demonstrates:
“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.”
In our view, the finding as to whether a child has or has not been abused and the finding as to whether a child will be at risk in the future if access occurs, must be arrived at following the application of the civil standard of proof, bearing in mind the above test when determining the gravity of the allegation.
11. In M v M, the High Court said (at CLR 78; ALR 583; Fam LR 611; FLC 77,081) that in cases involving allegations of sexual abuse:
“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.”
12. The Full Court of the Family Court also gave the following advice in Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249 ; (2004) FLC 93-192 ; [2004] FamCA 768 at [19]:
“The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The court needs to remain conscious of this imperfection at all times.”
13. The Full Court went on to cite with approval these observations of Kay J in In the Marriage of Koutalis and Bartlett (1994) 17 Fam LR 722 at 748–9 ; (1994) FLC 92-478 at 80,972:
“In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.”
In an article entitled “Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made”, appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
“Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well … away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.”
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place. The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
“The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment … These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (ie objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.”
14. In commenting on these remarks of Kay J, the Full Court in Re W (Sex Abuse: Standard of Proof) (above) (at [21]) said:
“The lessons to be learned have not changed. The risk that the court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.”
15. By virtue of the amendments, the objects of the Act now include the proposition that children’s best interests are met by protecting them “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. This is hardly a novel proposition, and it echoes one of the factors previously taken into account under s 68F(2) of the Family Law Act 1975 (Cth). The elevation of this proposition from a factor to be taken into account, to an express object of the legislation, makes no difference to my obligation to make the order most likely to promote Steven’s best interests. Accordingly, I do not consider the force of the authorities discussed above has been affected by the amendments. I therefore intend to keep those authorities firmly in mind.”
The behaviour of the mother in bringing A to the Courtroom precincts and the behaviour of A as observed by the father and the mother’s half-sisters is not consistent with a child who is genuinely frightened of his father.
The evidence of Ms D, Family Consultant, supports this view. She confirmed that if A was genuinely fearful of his father, he would not willingly make eye-contact and behave in such a way.
The evidence before the Court suggest alternatives for A’s behaviour, such as the influence of his mother, stepfather and maternal grandmother, the inadvertent influence of the counselling and the long period since A was able to spend any time with his father.
It is therefore not possible on the appropriate standard of proof to make a finding that A is genuinely fearful of his father albeit that he is expressing such a fear and behaving in a way which might be interpreted as fearful.
Section 61DA(1) requires the Court to apply a presumption that is in the best interests of the child for the parents to have equal shared parental responsibility. Subsection (4) says:
“(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
The evidence before the Court indicates that the mother has been unable to communicate with the father about issues concerning A. She maintained to the conclusion of the hearing before the Family Court that she believed A’s allegations that A had been sexually abused by his father.
In all of the circumstances the Court is satisfied that it would not be in the best interests of A for his parents to have equal shared parental responsibility.
That consideration is supported by the factors set out hereafter when considering the criteria referred to in section 60CC.
Primary Considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
This would be a significant benefit to A. If his mother were able to encourage a relationship between A and the father and his extended family, A would have such meaningful relationships. However the mother has indicated that she continues to believe that A has been sexually abused by the father. Any ability to encourage a meaningful relationship between the father and the child is therefore severely restricted by her ongoing belief.
The oral evidence of the Family Consultant, Ms D was that it would be “a very poor outcome” for A if he were denied a relationship with the father. The conclusions of the Magellan Report support A having a meaningful relationship with his father.
It is likely that A will be able to maintain his relationship with his mother.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
As indicated previously in the judgment the evidence does not establish that A has been abused by his father or that there is an unacceptable risk of abuse by his father.
The unsatisfactory nature of the evidence presented by the mother, maternal grandmother and the mother’s stepfather concerning the allegations about the mother’s stepfather’s behaviour towards the family (his affair with a young woman, the allegations concerning the stepfather’s abuse of R and the changes to the evidence about whether the mother’s stepfather had ever been left alone with R and A) established a basis for concern that A may be exposed to a risk of abuse in the household of the mother if she was to continue to reside with or nearby the house of her mother and her stepfather.
However the evidence does not establish on the sufficient standard of proof that R or A have been abused by the mother’s stepfather nor is it sufficient to establish an unacceptable risk of abuse in the household of his mother.
The attitude of the mother and A’s ongoing behaviour established a concern that A will suffer from psychological and emotional harm if he is deprived of any relationship with his father.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
A’s views need to be seen in the context of his age and development. As previously discussed his expressed fear of his father is inconsistent with other observations such as his demeanour and recent behaviour outside the Courtroom. The weight to be given to the views of such a young child in these circumstances is limited.
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
Until A was removed from his father’s care by his mother in September/October 2007, A had a good, loving relationship with his father. He also had developed a good relationship with the father’s partner Ms K. There has been no opportunity for those relationships to be maintained since October 2007. A does not yet have a relationship with his sibling in his father’s household.
The mother and A have a long-standing strong bond. The evidence also suggests that A has a close relationship with his brother R.
Although there was only a limited amount of evidence directed to the issue, it appears that A also has an appropriate relationship with Mr Cromie and his maternal grandmother.
A has usually been supervised by another adult when in the company of the mother’s stepfather.
A has an appropriate good relationship with his maternal aunts.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
On behalf of the mother it was maintained that she had displayed a willingness and ability to encourage the relationship with the father until A made the allegations. The mother initially proposed that there be no order for A to spend time with the father, but it was suggested that she might act upon any request from A to spend time with his father. This seemed inconsistent with her belief that he had been sexually abused by the father. The mother subsequently suggested that the parties and the children attend counselling and that A commence spending time with his father in accordance with recommendations of a counsellor or therapist. She suggested that this take place at a contact centre. Again, this is inconsistent with her belief that A had been sexually abused by the father.
The mother refused to accept the possibility that A had not been sexually abused by his father. It is difficult therefore to see how counselling would assist her and her relationship with A unless she was prepared to change this adamant view.
Whilst therefore counselling may be a benefit to the parties and the child, it is not appropriate to make any orders conditional upon successful counselling. The success of such counselling could obviously be undermined by the mother’s inability or unwillingness to consider alternatives for A’s statements and behaviour which she says established sexual abuse.
The father proposed that for a period of one month A spend no time with or communicate with either his mother or maternal grandparents and that thereafter there be an introduction of time spent at a contact centre and then the time spent gradually increasing to alternate weekends and half school holidays. The evidence before the Court indicated that the father acknowledged the relationship between the mother and child. He appeared willing to facilitate and encourage the close relationship with A provided that the ongoing relationship between the child and the mother did not cause further harm to A.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is a significant factor in this matter. A has been residing primarily with the mother and Mr Cromie for a considerable time. He has however lived at different addresses and in different environments.
The father gave an undertaking that he would not change A’s school for the remainder of 2010. This will limit to a certain extent some of the changes, however a change from his mother’s care to his father’s care is likely to be significant.
Ms D’s evidence emphasised the likely trauma that A may suffer when removed from the care of his mother and the frequent company of his brother. This attachment needs to be considered carefully and weighed with the other factors.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This factor is not significant. The time and cost of travel and communication can be managed appropriately.
(f) the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs; and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The past history of the mother indicates that she had significant difficulties providing for A and R. She did not demonstrate a proper responsibility as a parent at times. Of significance is the occasion when she left the children home alone putting them at significant risk when they were found wandering the streets. She was also unable to care for them shortly thereafter when she placed A with his father and R with his father for a short time.
The criminal history of Mr Cromie and the mother’s use of illegal drugs are also significant bearing in mind that A was residing with the mother and Mr Cromie when the police raided the home, confiscated drugs and arrested Mr Cromie.
The mother asserts that she and Mr Cromie have become Christians and have given up their previous lifestyle.
Apart from the allegations of abuse and the disruptive relationship between the mother and father, there were no significant factors dealing with the father’s capacity to provide for A or his attitude towards parenthood.
The mother was sufficiently confident about his capacity and attitude to place A with him when she was unable to care for A.
It is significant that the father currently has the assistance of his partner, Ms K.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
These factors are not particularly relevant, other than that the child is currently attending the B Christian School and the father has agreed to continue this arrangement until the end of 2010 school year. The differences in religion of the mother and father were not significant factors before the Court.
(j)any family violence involving the child or a member of the child's family; and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
These factors are relevant but have been dealt with earlier in the judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
When considering this factor it is appropriate to limit the opportunity for the parties to return to the Court. It would be in A’s best interests if those responsible for his care were not disadvantaged by further involvement in Court proceedings.
(m)any other fact or circumstance that the court thinks is relevant.
The father has the support of the mother’s half-sisters with whom A has enjoyed a good relationship in the past. They have given evidence on oath of their willingness to assist A to adjust to any change in his living arrangements.
The matters relevant to subparagraphs (4) and (4A) have already been considered.
At the conclusion of the hearing Counsel for the Independent Children’s Lawyer proposed that A live with the father and that arrangements be made to ensure that A was able to be assisted with this change by counselling and the involvement of his aunt, Ms H. She proposed that the mother only communicate with the child initially and then spend time with A at the Y Contact Centre for four weeks, reverting to unsupervised time gradually increasing to after school on Thursday until the beginning of school on Monday each alternate week. The Independent Children’s Lawyer also proposed provisions for shared school holidays and other related orders.
At this stage the Court is unable to determine how much counselling, if any, A will need, although the evidence about his expression of fear of his father suggests that some counselling will assist. The father indicated that he would seek counselling from a suitably qualified counsellor nominated by the Independent Children’s Lawyer.
The mother proposed that A continue to reside with her and that there be interim orders providing for time spent to be at the contact centre and arrangements to be made for A to be separately assessed.
The father proposed that A live with him on the basis that for the first month A does not spend any time with the mother, her mother or stepfather and that thereafter the mother spend some time with A at the Y Contact Centre for a period of one month ultimately gradually increased to alternate weekends from 4.00 pm Friday until 5.00 pm Sunday, half the school holidays and special occasions on certain conditions.
The significant matters to be considered are the benefit to A of having a meaningful relationship with his father, whilst maintaining a meaningful relationship with his mother and his brother R.
It is also significant to consider the capacity of each of the parents to provide for A’s emotional wellbeing and the attitude towards their responsibilities as parents.
Notwithstanding the difficulties A may experience in leaving the care of his mother, the weight of the evidence indicates that such a change is necessary for A’s future emotional and psychological development. It is considerably more likely that A will be able to enjoy a relationship with both of his parents if he is directed to live with his father.
Both the mother and father have indicated a willingness to work with the Department of Communities workers to improve their care of A.
Summary and conclusions
Weighing all of the factors in this difficult matter carefully the best interests of A (which are the paramount consideration) direct that A live with his father and that his father have sole parental responsibility for him.
A will need time to settle down in his father’s care before renewing time with his mother.
The Court assumes that the orders made when the matter was adjourned on 18 March 2010 have been obeyed. A was to be brought to the Child Minding Centre of the Brisbane Registry. The parties were directed to enrol at the Y Contact Centre.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 11 June 2010
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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