TEMPLE & DOBOROVIC
[2010] FamCA 338
•22 April 2010
FAMILY COURT OF AUSTRALIA
| TEMPLE & DOBOROVIC | [2010] FamCA 338 |
| FAMILY LAW – CHILD ABUSE – allegations of sexual abuse of the child by the father – where the Court is not satisfied the father has sexually abused the child or that there is an unacceptable risk to the child FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father has been violent towards her and the children and that such conduct indicates a predisposition to violence – whether the father’s conduct constitutes an unacceptable risk of harm to the child – where the incidents were isolated and it is not accepted that the incidents display a pattern of behaviour – not satisfied there is any risk of harm to the child FAMILY LAW – CHILDREN – with whom a child lives – best interests – where there is a high level of conflict between the parties – where the mother has involved the child in adult conflict – where the mother has influenced the child to adopt her negative view of the father and attempted to instil in him a fear of his father – where the mother’s behaviour has prevented the child from enjoying the benefits of a normal relationship with his father and had a detrimental impact on the child’s development – not reasonably practicable or in the child’s best interest for there to be an order for equal time –in the child’s best interests to have substantial and significant time with both parents – where the child has lived with the mother since separation – child to live with the mother and spend substantial and significant time with the father – order for the mother to undergo counselling FAMILY LAW – CHILDREN – parental responsibility – where both parties seek sole parental responsibility – where the presumption of equal shared parental responsibility in s 61DA does not apply as the father has engaged in family violence – where it is necessary for both parties to participate in long term decisions affecting the child – order for equal shared parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA & 65DAA Evidence Act 1995 (Cth) s 97 & s 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Temple |
| RESPONDENT: | Mr Doborovic |
| INDEPENDENT CHILDREN’S LAWYER: | Graeme Hemsley |
| FILE NUMBER: | ADF | 1736 | of | 2006 |
| DATE DELIVERED: | 22 April 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 – 27 March 2009 18 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tredrea |
| SOLICITOR FOR THE APPLICANT: | Legal Services Commission of SA |
| COUNSEL FOR THE RESPONDENT: | Ms Dickson |
| SOLICITOR FOR THE RESPONDENT: | Mellor Olsson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hemsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Graeme Hemsley Barrister & Solicitor |
Orders
That as from 7 May 2010 all previous orders made in relation to the child C born on … September 2003 be discharged.
That the mother and the father have equal shared parental responsibility for the said child.
That the said child live with the mother.
That the said child spend time with the father as follows:
(a)Commencing on Friday 7 May 2010 and during each alternate weekend thereafter, from the conclusion of school on the Friday until the commencement of school on the Monday, or on the Tuesday if the Monday is a Public Holiday;
(b)Commencing on Wednesday 12 May 2010 and during each alternate week thereafter, from the conclusion of school on the Wednesday until the commencement of school on the Friday;
(c)For one half of all school holiday periods at times to be agreed between the parties and in default of agreement as follows:
(i)in each even numbered year for the first half; and
(ii)in each odd numbered year for the second half;
(d)On Father’s Day in each year from 10:00am to 5:00pm PROVIDED THAT the said child shall be with the mother from 10:00am to 5:00pm on Mother’s Day in each year;
(e)From 4:00pm on 24 December 2010 to 3:00pm on 25 December 2010 and during the same times in each alternate year thereafter;
(f)From 3:00pm on 25 December 2011 to 5:00pm on 26 December 2011 and during the same times in each alternate year thereafter;
(g)On the father’s birthday and the said child’s birthday for a minimum of three [3] hours at times to be agreed and in default of agreement between 4:00pm and 7:00pm;
(h)During the Easter period as follows:
(i)from 5:00pm on Maundy Thursday to 5:00pm Easter Saturday in 2012 and during the same times in each alternate year thereafter;
(ii)from 5:00pm Easter Saturday to 5:00pm Easter Monday in 2011 and during the same times in each alternate year thereafter;
(i)During Orthodox Easter in each year (should it not coincide with the Easter Period referred to above) for a period of two [2] days and one [1] night on dates to be advised by the father on giving seven [7] days prior notice in writing to the mother;
(j)At such further and other times as may be agreed between the parties.
That both parties be at liberty to attend school events to which parents are normally invited to attend including school plays, parent teacher interviews, sports days and classroom reading.
That each party be at liberty to obtain copies of school reports, photographs and newsletters at their own expense.
That each party do advise the other in the event that the said child suffers a medical emergency and in particular if the child requires hospitalisation.
That the mother be restrained and an injunction is granted restraining her from:
(a)Discussing any allegation of sexual abuse in relation to the father with the said child C, or with the child T born … February 1994 in the presence of the said child C;
(b)Taking the said child C to a counsellor, psychologist, or any other health professional other than a medical practitioner without the father’s prior written consent having first been obtained.
That each party be restrained and an injunction is granted restraining each of them from denigrating the other of them or any member of the other’s family to or in the presence of the said child C and from permitting any other person to denigrate that other party or any member of that party’s family to or in the presence of the said child C.
That any handover not taking place at the said child’s school do take place as follows:
(a)At first instance at the B Children’s Contact Service handover program; or
(b)If the said program is not available, then inside the H Police Station.
That the mother commence or otherwise maintain counselling with a suitably qualified psychologist or specialist medical practitioner, with such counselling directed to her dealing with issues concerning her parenting and the outcome of these legal proceedings and judgment and final orders made.
That the mother provide the said psychologist or specialist medical practitioner with a copy of the reasons for judgment delivered by Strickland J on 22 April 2010.
That all applications save and except the Applications Alleging Contraventions filed by the father on 17 February 2010 and 17 March 2010 be dismissed and removed from the active pending cases list.
That pursuant to s 62B and s 65DA(2) 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 are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Temple & Dobrovic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1736 OF 2006
| MS TEMPLE |
Applicant
And
| MR DOBOROVIC |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting orders with respect to the child C born in September 2003 and now aged 6 years.
The mother filed an Amended Initiating Application on 22 August 2008. At the time of trial the mother sought the following orders:
“2.1The child live with the Mother.
2.2The Father continue to spend time with the child at the [B] Children’s Contact Service.
2.3That the child commence counselling with a suitably qualified psychologist, selected by the ICL, directed at improving the child’s ability to manage his existing behaviour and environment, with the parties to share the costs of such counselling jointly, and with the psychologist to report within the period of 2 months of the date of this order as to whether the child is capable of commencing to unsupervised spend time with the Father.
2.4That the Mother commence or otherwise maintain counselling with a suitably qualified psychologist or specialist medical practitioner, with such counselling directed to her dealing with issues concerning her parenting and the outcome of these legal proceedings and judgment and final orders made.
2.5Upon the child being psychologically assessed as being capable of commencing to spend unsupervised time with the Father, and upon the Father completing the 26 week Men’s Stopping Violence Group program at the Northern Violence Intervention Program, the Father spend time with the child as follows:
2.5.1For periods of 4 hours per fortnight, for 2 months;
2.5.2Therafter [sic], from 9.00am to 4.00pm on either a Saturday or Sunday each fortnight for the period of 2 months;
2.5.3Therafter [sic] from 9.00am Saturday until 4.00pm Sunday each fortnight for a period of 2 months;
2.5.4Therafter [sic] from conclusion of school Friday until 4.00pm Sunday each fortnight, and afterschool [sic] Wednesday until 6.00pm of the intervening week; and
2.5.5At all other times as agreed between the parties.
2.6Until Such time as the child commences to spend time with the Father overnight, the Father shall be present with the child (or in vicinity of the child) at all times when the child is spending time with him.
2.7All handovers (not at a childrens [sic] contact service or at school) shall take place at the [N] Police station.”
The father filed an Amended Response on 30 July 2008. At the time of trial the father sought the following orders:
“3.1That the father have sole parental responsibility for the child …
3.2That the said child do live with the father.
3.3That the said child do live with the mother as follows:-
3.3.1For a period of two months on each alternate weekend for a period of two hours in a supervised setting at the [S] Children’s Contact Service or the [B] Children’s Contact Service, provided the mother attends counselling at the “KidsareFirst” program during that period;
3.3.2For the next three months on each alternate weekend from 10am to 5pm Saturday;
3.3.3Thereafter;-
i)Each alternate weekend from 10am Saturday to 5pm Sunday provided that the if [sic] Father’s Day falls during one of those weekends then the said child’s time with the mother conclude at 10am on Father’s Day;
ii)On the mother’s birthday and the child’s birthday for four hours at times to be agreed;
iii)On Mother’s Day and Easter Sunday from 10am to 5pm;
3.4Once a year the father be at liberty to reschedule the child’s time with the mother pursuant to paragraph 3(c)(i) herein to a date in later intervening week provided he gives the mother four weeks notice of his intention to do so to the intent that he be able to take the child on an extended holiday overseas.
3.5The mother be restrained by way of injunction from removing the child from the State of South Australia without the written consent of the father.
OR IN THE ALTERNATIVE:-
3.6That the parties do have equal shared parental responsibility for the said child.
3.7That the said child do live with each of the parties on a week about basis from the conclusion of school Friday in each alternate week.
OR FURTHER IN THE ALTERNATIVE:-
3.8That the parties do have equal shared parental responsibility for the said child.
3.9That the said child do live with the father:-
3.9.1In week 1 from the conclusion of school Friday to the commencement of school Monday and each alternate week thereafter;
3.9.2In week 2 from the conclusion of school Wednesday to the commencement of school Friday and each alternative week thereafter.
AND FURTHER ORDERED NOTWITHSTANDING ANY OTHER ORDER MADE HEREIN:-
3.10That the said child do live with the father as follows:-
3.10.1For half of all school holidays at times to be agreed between the parties or in default of agreement as follows:-
i)In each even numbered year for the first half; and
ii)In each odd numbered year for the second half.
3.10.2On Father’s Day from 10am to 5pm in each year provided that the said child shall be with the mother from 10am to 5pm on Mother’s Day in each year;
3.10.3From 4pm on the 24th of December 2008 to 3pm on the 25th December 2008 and each alternate year thereafter.
3.10.4From 3pm on the 25th December 2009 to 5pm on the 26th December 2009;
3.10.5On the said father’s birthday and the said child’s birthday for a minimum of three hours at times to be agreed and if no agreement then between 4pm and 7pm;
3.10.6Over the Easter long weekend as follows:-
i)From 5pm Maundy Thursday to 5pm Easter Saturday in 2009 and each alternate year thereafter;
ii)From 5pm Easter Saturday to 5pm Easter Monday in 2010 and each alternate year thereafter;
3.10.7For Orthodox Easter in each year (should it not coincide with Easter referred to above) for a period of two days and one night on dates to be advised by the father on giving seven days notice;
3.10.8At such further and other times as agreed between the parties.
3.11That both parties be at liberty to attend school events to which parents are normally invited to attend including school plays, parent teacher interviews and sports days.
3.12That each party be at liberty to obtain copies of school reports photographs and newsletters at their expense.
3.13That each party do advise the other in the event that the said child suffers a medical emergency and in particular if the child requires hospitalisation.
3.14That the mother be restrained and an injunction be granted restraining her from:-
3.14.1Discussing any allegation of sexual abuse in relation to the father with the said child [C] or with the said child [T] with or in the presence of the said child [C];
3.14.2Taking the said child to a counsellor, psychologist or any other health professional (other than a medical practitioner or with the consent of the father) without the fathers prior written consent having first been obtained;
3.15That any handover not taking place at the said child’s school do take place as follows:-
3.15.1At first instance at the [B] Children’s Contact Service handover program; or
3.15.2If the said program is not available, then inside the [H]Police Station.
3.16Such further or other orders as this Honourable court deems fit.”
Factual background
The mother was born in 1967 and is now aged 42 years.
The father was born in 1977 and is now aged 32 years.
In February 1994 the mother’s daughter from a previous relationship, T, was born and is now aged 16 years.
The parties met and commenced a relationship in 2001. The parties moved from Melbourne to Adelaide with the child T and commenced cohabitation in early to mid 2002. The mother alleges the father exhibited controlling behaviour during the parties’ relationship and that he was both verbally and physically abusive towards her.
The parties’ child C was born in September 2003 and is now aged 6 years.
In October 2004 the parties underwent counselling at Relationships Australia.
In January 2005 an incident occurred with the child C after the child was uncooperative while the father was attempting to feed him. According to the mother, the father tipped a bowl of hot Weet-Bix over the child C’s head before smashing the bowl on the tray of the high chair and pushing the high chair forcefully. The father denies the mother’s version of this incident, saying the child tipped cold Weet-Bix over his own head, but admits shouting at the child on this occasion.
In February 2005 the mother alleges that the father verbally abused her and physically assaulted her in the backyard of the home in which they were residing. The mother alleges that the father slammed the back door on her right hand and threw her back against the dog house, holding her by the throat. She further alleges that the father waived his fist in her face and then screamed abuse at her. The father denies assaulting or verbally abusing the mother on this occasion.
In March 2005 the mother alleges that the father physically assaulted the child T. The mother says that the father lost his temper with T and hit her across the head with a closed fist and then swung back with an open hand slapping her across the face. The father denies that this incident occurred at all.
On 23 March 2005 the parties finally separated. Thereafter both C and T spent time with the father.
According to the mother, the parties attempted reconciliation in approximately May 2005. The father says that the mother “began to press the issue of reconciliation” in July 2005.
The mother alleges that some time after this the father physically assaulted her. She says that when returning C the father was very aggressive towards her and was yelling at her. She says that he bashed the car seat on the screen door, he demanded that the mother open the door, and when she did he pulled her off balance and then pushed her back down the hall hitting her with the car seat. The mother alleges that this occurred in front of C. The father denies that this is what occurred on this occasion. In particular, he denied that there was any assault.
In August 2005 it was alleged that the father indecently assaulted the mother’s daughter T. It was alleged that the father had an erection while the child T’s head was resting in his lap whilst watching television, and that the father pushed the child’s head into his lap. Families SA subsequently substantiated that the father had sexually abused the child T. The father was later charged with indecent assault over this incident.
On 11/12 August 2005 an incident occurred between the parties in which the mother alleged the father assaulted her. The father was subsequently charged with assault occasioning actual bodily harm.
On 29 August 2005 the mother obtained a Domestic Violence Restraining Order against the father restraining him from contacting, harassing, threatening or intimidating the mother or attending at her place of residence or work. The order permitted the father to have “supervised access” with the child at the S Children’s Contact Service for three hours on a Saturday each fortnight.
On 10 November 2005 the mother commenced proceedings in the Federal Magistrates Court seeking parenting orders. The father filed a Response on 12 December 2005.
On 19 December 2005 Federal Magistrate Mead made orders for the father to spend supervised time with the child on Christmas Day and on 7 January 2006 at a Children’s Contact Service.
On 12 January 2006 Federal Magistrate Mead listed the matter for trial and made orders for the child to reside with the mother and spend time during the day with the father unsupervised on specified dates up to 26 March 2006, and thereafter from 5:00pm Friday to 5:00pm Saturday.
On 17 September 2006 a Family Report was prepared by Mr R. Mr R recommended that the child should remain living with the mother and that pending resolution of with whom the child should live, the status quo of the child’s visits with his father should be retained over special occasions and kindergarten holidays. Mr R also recommended that the father enrol in an Anger Management course, given the alleged past demonstrations of “uncontrollable anger and rage.” Mr R recommended a further review and report if the matter proceeded to trial.
On 26 September 2006 the parties obtained orders by consent with respect to the child issues. Those orders provided for C to live with the mother and spend time with the father on each alternate weekend from 5:00pm Friday until 5:00pm Sunday (or Monday if a Public Holiday), from 3:00pm Thursday until 8:00pm Friday in each intervening week, on Father’s Day, on the father’s birthday, on C’s birthday, and during Easter. There were a number of other orders made including that the father personally care for C, that he attend an anger management course, and that the parties undertake post separation counselling. However the following issues were not able to be agreed:
(a)The father’s time with the child over the Christmas/New Year period in 2006/2007;
(b)Whether the father’s time with the child was to be extended upon the child commencing kindergarten or school;
(c)Whether an equal shared parenting arrangement was to commence upon the child commencing school, or at all;
(d)Whether the child was to spend an additional night with the father in each other week;
(e)Arrangements for the Christmas/ New Year in each year; and
(f)The time the child was to spend with the father in school holidays and when such time would commence.
These outstanding issues were listed for trial primarily on 21 May 2007.
On 17 October 2006 Mead FM made orders suspending the father’s time such as to allow the mother to take the child to Queensland for a holiday and providing the father with additional time with the child. It was noted that this order disposed of the outstanding issue regarding the father’s time with the child for Christmas 2006/2007 as identified by the Federal Magistrate on 26 September 2006.
On 31 October 2006 the child allegedly said to the mother that “daddy puts cream up my bottom”. The mother also alleges that for some time prior to this the child was displaying sexualised behaviour, including “putting his finger up his own bottom”.
On 1 or 3 November 2006 the child allegedly straddled the maternal grandmother whilst in bed and kissed her with an open mouth.
On 2 or 4 November 2006 the child allegedly straddled the mother whilst in bed and forcefully attempted to kiss her with an open mouth whilst rubbing against her.
On 15 November 2006 the mother reported these incidents to the Child Abuse Hotline.
On 17 November 2006 Families SA and police visited the mother and child C and C was referred to the Child Protection Services (‘CPS’) at the Women’s and Children’s Hospital for a forensic interview.
On 28 November 2006 the mother filed an urgent Application seeking orders that the father’s time with the child be suspended pending the outcome of the CPS investigation and that the matter be transferred to the Family Court to be included in the Magellan program.
On 6 December 2006 Mead FM suspended all previous orders providing for the child to spend time with the father and transferred the matter to the Family Court of Australia.
On 8 December 2006 Ms A, a Senior Social Worker with CPS conducted a preliminary session with the child C and interviewed the mother. Then on 12 December 2007 Ms A conducted a forensic interview with C.
On 4 February 2007 the child T was interviewed by the police in the presence of the mother.
On 22 February 2007 the mother filed a Notice of Child Abuse in which she alleged the father had behaved in a sexually inappropriate manner with the child C, with reference to the alleged incidents of 31 October, 1/3 and 2/4 November 2006. This case was subsequently included in the Magellan Program.
On 27 February 2007 the case first came before Burr J. His Honour made orders for the appointment of an Independent Children’s Lawyer, invited the Minister to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) and requested that Families SA prepare a report as to the allegations of the mother. His Honour continued Mead FM’s order of 6 December 2006 suspending the father’s time with the child.
Families SA subsequently provided a letter to the Magellan Registrar, dated 27 February 2007, but clearly that date is incorrect and it was written some time after (see Exhibit M4). This letter advised that Families SA had received no notification about either child until they received a child protection notification with respect to the children C and T on 15 November 2006. Families SA advised that they had received sufficient information to “support substantiation of the sexual abuse allegations with regard to [T]”. There was insufficient information to substantiate sexual abuse allegations against C at the time. However, Families SA advised they nonetheless held “serious concerns” regarding C’s sexualised behaviour and that the child had been referred to the Sexualised Behavioural Treatment Program at the CPS at the Women’s and Children’s Hospital, which recommends that there be no contact between the child and the father. Families SA supported this recommendation that there be no contact between the father and C.
On 1 March 2007 CPS provided a report. While it was noted in the report that C had made comments during the CPS assessment about the father “putting his finger up his [C’s] bottom”, CPS found the child was unable to provide sufficient information to clarify his statements. However, “given ongoing concerns in relation to [C’s] behaviour, the alleged disclosure from his sister, [T], in regards to [the father] ‘grinding his stiffy’ into the back of her head, past incidents of domestic violence perpetrated by [the father] towards [the mother], and [C] stating ‘Daddy puts his finger up my bottom’”, it was recommended that C not have any contact with the father until the investigations of Families SA, the CPS and the Child and Family Investigation Unit were completed. It was also recommended that the CPS be consulted about the appropriateness of a further interview if further disclosures of alleged sexual abuse were made, and that a referral be made by Families SA for C to receive therapy with the CPS Sexualised Behavioural Treatment Program.
On 27 March 2007 the mother gave a statement to the police in relation to the allegations involving T.
On 2 April 2007 Burr J continued the order suspending the father’s time with the child.
On 18 April 2007 Dawe J ordered that a Family Assessment Report be prepared. Orders were also made restraining the mother from permitting the child to undertake any therapy with the CPS Sexual Treatment Program pending further consideration of the program and its basis.
On 2 July 2007 Ms D, Family Consultant, provided a Family Assessment Report. In the event that the Court found the child C was not at risk of abuse from the father, Ms D recommended:
41.1That C lives with his father.
41.2That C’s time with his mother and any other maternal family members is initially supervised for a period of two months.
41.3That the mother attend comprehensive counselling (at least six to ten sessions), with a programme such as the “KidsAreFirst” (part of the programmes provided by Anglicare), that this report be provided to the treating counsellor, and that the father be interviewed by the counsellor.
41.4That unless there is information provided to the court which emerges independently of the mother or the maternal grandparents, of C demonstrating sexualised behaviour to an unacceptable level, C not be referred to a specific sexualised behaviour programme.
In the event that the Court was to find that the child is at risk of sexual abuse from his father, Ms D recommended that any time specified by the Court for the child to spend with his father be supervised.
On 5 July 2007 Dawe J made orders further restraining the mother from taking the child for assessment or psychological treatment.
On 11 July 2007 Forbes JR made interim orders by consent providing for the father to spend supervised time with the child at the S Contact Service. However, this did not commence until March 2008.
In February 2008 the criminal charges laid against the father in relation to the alleged indecent assault against T were dismissed. No evidence was tendered by the prosecution.
On 4 June 2008 the father was found not guilty in the Adelaide Magistrates Court of Assault Occasioning Actual Bodily Harm against the mother in relation to the incident in August 2005, but guilty of the alternative charge of common assault.
The father was sentenced on 11 June 2008. He was required to enter a bond to be of good behaviour for a period of 18 months in the amount of $500. The father was also to be assessed for and, if found suitable, to participate in the victim awareness program anger management course and/or any other courses as directed by his supervisor. A Domestic Violence Order was also imposed on the father, to operate for a period of two years, restraining the father from harassing, threatening, assaulting or intimidating the mother and preventing him from approaching or contacting the mother except with respect to his time with the child pursuant to Court orders.
On 30 June 2008 Burr J ordered the preparation of a further Family Assessment report. Orders were also made for the father to have supervised time with the child at the B Children’s Contact Service on either the Saturday or Sunday of each alternate weekend.
On 30 July 2008 the father filed an Amended Response.
On 20 August 2008 a further Family Assessment report was prepared by Mr P, Family Consultant. Mr P recommended that if it was accepted the child was at risk of abuse from the father that:
(1)[C] continues to live with [the mother].
(2)[C] continues to have fortnightly supervised time with [the father].
(3)As soon as practically possible, [C] is assessed for suitability to receive treatment at the Child Protection Service, or another agency with expertise in child protection issues.
(4)If it is assessed that [C] would benefit from psychotherapy that he receives it promptly.
(5)That [C] commences spending unsupervised time with [the father], when a treating practitioner assesses that he is ready to do so, and has the ability to report any inappropriate or abusive behaviour.
(6)That [C’s] time with [the father] be suspended immediately, pending any investigation, if any significant concerns about [the father’s] behaviour in relation to [C] arise, or if [C] is having significant difficulty in coping with his time with [the father] (as assessed by [C’s] treating practitioner).
(7)That there are no constraints on [the mother] seeking assessment and any subsequent recommended treatment for [C] for any condition or difficulty that she may have concerns about.
(8)Consideration is given to [C] spending time with his paternal grandparents only after several months and when [C’s] relationship with [the father] is well established.
Mr P made the following recommendation if it was not accepted that the child is at risk of abuse from the father:
(9)[C’s] time with [the father] gradually progress from the existing arrangement, to unsupervised time, to a single overnight once a week with [the father] after 6 to 8 months. In this circumstance, it is still likely that [C] would benefit from psychological assessment and intervention. It would also still be important to monitor [C’s] progress, with a preparedness to slow or reverse each progressive step if [C] has significant difficultly in managing the arrangement.
On 22 August 2008 the mother filed an Amended Initiating Application.
In October 2008 the father attended the Northern Violence Intervention Program on three occasions in order to be assessed for the purposes of undertaking the program. He was assessed as unsuitable.
On 10 November 2008 Families SA provided a further letter to the Magellan Registrar. Families SA advised that they had recently received further notifications and new information alleging the father had sexually and physically abused C, which were being investigated. Families SA again outlined that “serious concerns exist regarding his [C’s] sexualised behaviour”. Families SA recommended that the child be referred to the Sexualised Behavioural Treatment Program at CPS Women’s and Children’s Hospital and supported the recommendation of CPS that there be no contact between the child and the father. However, nothing came of this investigation and the abuse was not confirmed. Families SA determined that the information provided by the mother was not accurate and a notation was placed on the file to the effect that any further notification by the mother would require external verification to be investigated.
On 11 March 2009 Burr J ordered the parties to attend s 11F counselling to explore options for resolution of the matter.
On 12 March 2009 the parties attended a child dispute conference.
The trial in this matter was heard by me over ten days from 16 to 27 March 2009, when judgment was reserved. On 27 March 2009 I delivered ex tempore reasons and made interim parenting orders. Those orders provided:
(1)That the father forthwith undertake and complete the “What to do about Anger” course conducted by Relationships Australia at [S].
(2)That from Monday 30 March 2009 paragraph 4 of the order made on 30 June 2008 be discharged.
(3)That forthwith the husband’s parents [the paternal grandparents] file and serve affidavits confirming their availability to supervise the time to be spent by the child [C] born […] September 2003 with the father pursuant to this order until the successful completion by the father of the said course and that they have each read and understood the contents of the pamphlet as to supervision and the responsibility thereof published by the Legal Services Commission of South Australia.
(4)That until further order the father be at liberty to attend school events at the school attended by the said child to which parents are normally invited including school plays, parent teacher interviews, sports days and classroom reading.
(5)That the said child spend time with the father as follows:
(a)from 10:00am to 1:00pm on Sunday 12 April 2009 and Sunday 26 April 2009;
(b)from 10:00am to 2:00pm on Sunday 10 May 2009 and Sunday 24 May 2009;
(c)from 10:00am to 3:00pm on Sunday 14 June 2009 and Sunday 28 June 2009;
(d)from 10:00am to 4:00pm on Sunday 5 July 2009, Sunday 12 July 2009, Sunday 19 July 2009, Sunday 2 August 2009, Sunday 16 August 2009, Sunday 30 August 2009, Sunday 13 September 2009 and Sunday 27 September 2009;
(e)from 10:00am to 4:00pm on Father’s Day in 2009;
(f)from the conclusion of school on [C’s birthday in] September 2009 until 5:30pm
UPON the following conditions:
i.that all such periods of time until satisfactory completion by the father of the said course be supervised by the father’s parents [the paternal grandparents];
ii.that the handovers for the purpose of time spent take place at the [B] Children’s Contact Service SAVE AND EXCEPT on [the child’s birthday in] September 2009 when the father do collect the said child at the commencement from the said child’s school and return the said child at the conclusion of time spent to the [N] Police Station;
iii.that the times of commencement and conclusion of all such periods of time spent be subject to the availability of the [B] Children’s Contact Service at those times and if not at the closest times that are available.
(6)That the parties do everything necessary to attend the parenting orders program ‘KidsAreFirst’ run by Anglicare and for that purpose the parties are to contact the program at [S] within 7 days.
(7)That the Registry Manager provide a copy of this order to the program provider.
(8)That the child [C] born […] September 2003 commence counselling with a suitably qualified psychologist nominated by the Independent Children’s Lawyer and with such counselling to commence at a time nominated by the Independent Children’s Lawyer, and with the purpose of such counselling to be to provide support to the said child during the period prior to delivery of judgment in this matter and to assist the said child to cope with the changes that are to occur during that period of time in relation to the time that he is to spend with his father PROVIDED THAT neither party is to contact the said counsellor SAVE AND EXCEPT in response to a request from that counsellor or for the purpose of arranging an appointment with the counsellor or otherwise through the Independent Children’s Lawyer.
(9)That the cost of the said counselling be borne equally by the parties.
(10)That both parties be restrained and an injunction is granted restraining each of them from denigrating the other of them or any member of the other’s family to or in the presence of the said child and from permitting any other person to denigrate that other party or any member of that party’s family to or in the presence of the child.
When I made the interim orders on 27 March 2009 I delivered extempore reasons for judgment. In those reasons I confirmed a preliminary view that I had expressed during the hearing as follows:
“18. I have said on now two occasions, and I confirm, that my preliminary view is that the evidence does not permit me to make a finding that [C] has been sexually abused by his father, nor, for that matter, a finding that [T], who is not a child the subject of these proceedings, but is a child of the mother's has been sexually abused by the father. Indeed, after having heard all the evidence and the submissions, it is also my view that the evidence does not allow me to make a finding that there is an unacceptable risk of sexual abuse to [C] from his father. Thus, I put those issues aside for the purpose of this application.”
However, I did indicate that I had not yet formed a view about the issue of the alleged violence perpetrated by the father and that I needed to carefully consider that.
On 18 September 2009 the matter came back before me and I made the following further orders by consent pending delivery of judgment in this matter:
“1. That paragraphs 5 and 8 of the order made on 27 March 2009 be discharged.
2. That UNTIL FURTHER ORDER the child [C] born […] September 2003 spend time with the father as follows:
a.from 10:00am to 4:00pm on Saturday 26 September 2009;
b.from 10:00am to 6:00pm on Sunday 4 October 2009;
c.from 10:00am to 6:00pm on Sunday 11 October 2009;
d.on each alternate Sunday thereafter from 10:00am to 6:00pm UPON the following conditions:
i.that handovers for the purposes of time spent take place at the [B] Children’s Contact Service;
ii.that the times of commencement and conclusion of all such periods of time spent be subject to the availability of the [B] Children’s Contact Service at those times and if not at the closest times that are available.
3. That the said child forthwith commence counselling with Mr [L] with the purpose of such counselling to be to provide support to the said child during the period prior to delivery of judgment in this matter and to assist the said child to cope with the changes that are to occur during that period of time in relation to the time that he is to spend with his father PROVIDED THAT neither party is to contact the said counsellor SAVE AND EXCEPT in response to a request from that counsellor or for the purpose of arranging an appointment with the counsellor or otherwise through the Independent Children’s Lawyer.”
As a result of my interim orders, there is no longer any issue of supervision of the time spent by the child with the father. The child has been spending unsupervised time with him for some time now under those orders.
The father has also completed the anger management course and thus that is no longer a condition of progressing this case in terms of the time that the child is to spend with his father.
I also note that the Independent Children’s Lawyer has arranged for the child to receive counselling from Mr L to help him deal with the changed arrangements that the interim orders put in place.
Thus, the passage of time and the implementation of the interim orders have effectively reduced the issues that were initially in dispute in this case. Unfortunately though my hope that my preliminary remarks and the implementation of those interim orders would lead to a resolution of this matter has not proven to be the case.
The current circumstances of the parties
The mother
The mother lives with the children C and T in Housing Trust accommodation at N.
At the time of the hearing the mother was receiving Social Security payments and studying for a Bachelor Degree.
Also at the time of the hearing the child C was in Reception at N Primary School.
The mother has undertaken a number of domestic violence courses through Central Domestic Violence Service and at the time of the hearing she was consulting Mr O to assist her with the Family Court process.
The father
The father lives in a two bedroom rented townhouse at B.
At the time of the hearing he had been retrenched from his employment as a technician and he was looking for work.
As a result of the interim orders that I made the father is spending time with the child C each alternate Sunday.
The father has been paying child support for C in accordance with the assessments that have been made.
The issues in dispute
The ultimate issue is with whom the child should primarily live. Alternatively the issue is what time should the child live with the father and what time should he live with the mother, including whether that time should be shared equally or whether the child should live with one of the parents and spend substantial and significant time with the other parent. Theoretically that depends on what I make of the allegations that the father has sexually abused the child C and the allegations that the father has been and will continue to be violent. I say theoretically because I have concluded that the evidence does not satisfy me that the father has sexually abused the child C and to the extent that it is relevant, that the evidence does not satisfy me that the father has sexually abused the child T, and further I am not satisfied that there is a risk, let alone an unacceptable risk of the father sexually abusing the child C. However, I still need to provide my reasons for that, and to address the allegations of violence as well as on the other side of the coin the effect of the mother making what I consider to be unfounded allegations against the father in relation to C and for that matter T as well.
In relation to the allegations of violence the mother’s case is that there is a pattern of behaviour by the father and his “pre-disposition to violence” poses an unacceptable risk of harm to the child C. The father denies that this is the case and says that any relevant acts of violence perpetrated by him were isolated incidents and that he is not prone to violence. In any event, he has now undertaken a course which the mother required as a condition of the father spending unsupervised time with the child.
In relation to the impact of the mother making unfounded allegations against the father, that of course relates primarily to the sexual abuse allegations. The result of those allegations is that the child has been prevented from spending time with his father for significant periods of time, he has been subject to questioning and scrutiny by the mother and the maternal grandmother, and he has had to undergo a forensic interview at CPS. In addition, the father would say, the child has been the subject of influence and pressure by the mother to make disclosures and he has been made to think that his father is a bad person who has done terrible things to him. In the context of these long standing family law proceedings, and again as the father would say, he has been the subject of pressure and influence to not spend time with his father and to not enjoy the time that he does spend with him. The mother denies these allegations and says that she has only acted on the basis of what the experts and the authorities have said to her, and as long as C is safe she has always promoted C spending time with his father.
The dispute between the parties in relation to these matters is highlighted by the differences between the family assessment reports of Ms D and Mr P. Ms D’s recommendation is that because of the impact of the behaviour of the mother on the child and his relationship with the father the child should live with the father, whereas Mr P’s recommendation is that because there is no reason to change the child’s living arrangement, and because the child is at risk of harm from the father the child should live with the mother and the time that the child spends with the father should predominantly be supervised.
The mother also says that the father is incapable of adequately caring for C. The father denies this.
Finally, there is a dispute as to whether the parties will have equal shared parental responsibility or one of them have sole parental responsibility. The father seeks sole parental responsibility if the child is to live with him, but if not then he says there should be equal shared parental responsibility. The mother does not formally seek an order for parental responsibility but in her affidavit of her evidence in chief, and in what she told Mr P she in fact seeks sole parental responsibility. The Independent Children’s Lawyer recommends that there be equal shared parental responsibility because to provide sole parental responsibility for one of the parties would provide that party with too much power.
The applicable legislation
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
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;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of s 61DA(1) when making a parenting order 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. However, this presumption does not apply in certain circumstances, namely 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.
Further the presumption may be rebutted by evidence 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 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
The evidence
The mother was represented by Mr Tredrea. She gave evidence and was cross examined. She relied on her affidavit filed on 22 August 2008.
The mother called four witnesses, namely, her mother, her step-father Mr M, a domestic violence support worker Ms W, and the caseworker from Families SA Mr Y. Apart from Mr Y each of these witnesses filed affidavits respectively on 22 August 2008 and 27 August 2008. They each gave evidence and were cross examined. Mr Y attended and gave evidence and produced documents pursuant to a subpoena.
The father was represented by Ms Dickson. He gave evidence and was cross examined. He relied on his affidavit filed on 20 August 2008.
The father called one witness, namely, his father who filed an affidavit on 20 August 2008. He gave evidence and was cross examined.
The father also relied on the affidavit of his former housemate, Ms DN filed on 5 September 2008. Ms DN was not required for cross examination.
Mr Hemsley appeared as the Independent Children’s Lawyer. He called three witnesses, namely, Ms A a Senior Social Worker at the CPS, Ms D Family Consultant, and Mr P Family Consultant. Ms A prepared a report dated 1 March 2007, Ms D prepared a report dated 2 July 2007 and Mr P prepared a report dated 12 October 2008. Each of these witnesses gave evidence and were cross examined.
The Independent Children’s Lawyer also relied on the report of Mr R Psychologist dated 17 September 2006. He was not required for cross examination. Mr Hemsley also relied on various reports from the Children’s Contact Service. None of the authors of those reports were required for cross examination.
The mother was an interesting witness. I find that she is an angry and bitter woman presumably as a result of the failure of her relationship with the father and her dislike of him. She is also vindictive and manipulative, and there is no doubt in my mind that she is domineering and controlling.
I agree entirely with the assessment of the mother by Ms D, and in particular I can relate to how Ms D found her “to persistently endeavour to control” the interview with her. Ms D remarked that:
“[the father’s] comments about [the mother’s] controlling manner, verbal persistence and repetitiveness concurred with the writer’s experience during the interview, adding lucidity to [the father’s] accounts.”
These traits were quite apparent to me when the mother was giving her evidence, and they are highlighted a number of times in the material before me. Perhaps the best example is the letter that she wrote to Mr P before the interviews for the purposes of his report (see Exhibit F6). She commences the letter by saying that it is “not … an attempt to control (Mr P) or (the) assessment”, but then she proceeds to be just the opposite.
The mother complains about people who do not do what she wants. For example she complained long and hard about the process undertaken by Ms D and her assessment report, she likewise complained about Relationships Australia and the Children’s Contact Service allegedly not reporting observations of inappropriate behaviour between the father and the child.
I consider that her controlling and domineering personality would have marked the time that she and the father were together, and I accept his evidence about this. For example, I refer to paragraphs 13 and 14 of his affidavit of evidence in chief filed on 20 August 2008.
Yet another example of her need to control and influence events and other people arose in the context of the allegations that the father indecently assaulted T. Exhibit F4 is a transcript of the police interview of T and it is littered with instances of the mother answering the questions posed by the interviewer to the child, and all obviously done in the presence of the child. It is quite apparent that the mother saw the need to control the process and influence the outcome as well as influencing what T was able to say.
It is then understandable that Ms D would have described T and her presentation in the interview with her in the following way:
“28. [T] presented as an overly dramatic and superficially adult child of 13 years. She was aware of the nature of the adult dispute between her mother and [the father], and her comments often reiterated those of her mother.”
And further:
“34. The writer found [T’s] accounts to be [sic] have a disturbingly rehearsed quality. Many of her comments were clearly repeated versions of her mother’s accounts of events. There was a lack of spontaneity, and in spite of the tears, a flat quality to her emotional presentation. In the writer’s view, the similarity of so many of her comments to those made by her mother was an indication of the lack of appropriate boundaries in her mother’s parenting approach in regard to these difficult issues. [T] seemed incapable of examining her own discourse in any way, and there was a lack of any apparent real engagement in the issues for [C], in this young girl’s presentation.”
The mother also presents herself as a victim in all this. For example, a prime reason for her consulting Mr O was because “the system had let (her) down”.
She also consistently blamed her solicitor for not including material that she wanted in her affidavit. She also said that it was the solicitor’s fault that some material in the affidavit was inconsistent. She said it was all rushed and she had insufficient time to read and check the affidavit. Yet another example was she claimed that her solicitor “forced” her to negotiate the settlement that resulted in the orders of 26 September 2006 being made. However, I do not accept these claims and find that she is unable to take responsibility for her own actions. She looked to blame others when questions became too difficult.
I also find that she made up answers when she was caught out in cross examination. For example, the ABC Child Care notes recorded that on 27 June 2007 C had tried to kiss another child. When she was asked about this the mother immediately said that that had occurred just after the father had tried to kiss C with an open mouth at a supervised contact session. However, when it was put to her that the father was not seeing the child at all at this time and indeed had not seen the child since October 2006, the wife said that C’s actions must have been because of seeing his father with Ms D on 11 May 2007 for the purposes of preparing her report!
There were also clear inconsistencies between her evidence that throughout 2006 the child exhibited disturbed behaviour as a result of the time spent with his father, and the report of Mr R of September 2006, the communications book maintained by the parties in that year, the reports from the two child care centres that the child attended, where these allegations of the mother against the father were not borne out.
Finally, I observed that the mother made what I consider to be a desperate attempt in or about September and October 2008 to have Families SA confirm that the father had abused C, Families SA and SAPOL investigated the new/further evidence and found that the information given to them by the mother was not correct. As a result, apart from finding that the allegations of abuse were unable to be substantiated, the following notation was made on their file:
“Contact mother and advise of outcome and given that the info she provided is inaccurate future notifications would require some external verification to be investigated.”
On that basis the Court is required under s 65DAA(1) of the Act to consider whether the child spending equal time with the parents would be in the best interests of the child and reasonably practicable, and if it is, to make an order accordingly.
The father puts equal time as his first alternative proposal, but the mother opposes it.
As a concept it may be in the best interests of the child for him to spend equal time with the parties given what I have said already about the fact that the child needs both parents in his life to the fullest extent possible, but the primary issue here is whether the parents can work cooperatively and communicate effectively to ensure that the child benefits from such an arrangement. There is a high level of conflict between the parties which would militate against this. It is recognised that to be successful the parties need to have or be able to develop a working relationship (H and H (1995) FLC 92-599, at 81,973). It is not just a matter of sharing time; the emphasis is on responsibility and to achieve that there needs to be a high level of cooperation and a genuine commitment to the arrangements (Padgen and Padgen (1991) FLC 92-231).
The parties need to communicate, work together, understand, respect, and complement each others parenting style to create as stable and consistent an environment for the child as possible. I do not consider that these elements are present here and both Ms D and Mr P are of the same view.
In these circumstances I do not consider that it is either reasonably practicable or in the best interests of C for there to be equal time.
On that basis s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and is reasonably practicable, and if it is, to make an order accordingly.
Taking into account the relevant factors that I have set out above when considering s 60CC of the Act, I consider that it is in the best interests of C that he have substantial and significant time with each of the parties. C desperately needs regular and frequent input from both parties to enable him to grow and develop appropriately. He also needs both parties and particularly the mother to recognise this. The mother clearly needs to change her attitude towards the father and his relationship with their son. She needs to accept that the father has not acted inappropriately towards C (or T for that matter), and to accept that the incidents of violence were isolated occasions borne of their dysfunctional relationship.
The issue then becomes with whom the child should primarily live. I can say that given my findings as to the mother’s behaviour and her attitude, and the impact that that has had on C and his wellbeing, it would be tempting to provide that C live with his father, but in the circumstance of C having lived with the mother since separation, now some five years ago, and the dramatic changes that a new living arrangement would entail, I am prepared to give the mother one final chance to put the interests of C ahead of her own. However, that said, it is important that the child is able to spend frequent and regular unrestricted time with his father, and it seems to me that the second alternative proposal of the father fits the bill. It leaves the primary residence of C with the mother yet provides for the child to spend sufficient time with the father to allow for him to have a major role in his life and including in his schooling. I consider that it is both in the best interests of C and reasonably practicable to put such an arrangement in place.
Conclusion
Having regard to the evidence, the submissions of the parties and the Independent Children’s Lawyer, and the principles relevant to my determination, and including in particular the objects and principles set out in s 60B of the Act, I find that it is in the best interests of C that the parties have equal shared parental responsibility for him, that C continue to live with the mother, and that C spend frequent, regular, significant and substantial time with the father.
I am not satisfied on the evidence that the father has sexually abused C and nor to the extent that it is relevant that the father has sexually abused T. With the allegations of violence I have found that what incidents have occurred have been isolated incidents and importantly I have rejected the mother’s allegations as to the only incident of alleged direct violence to C. There is no evidence of a pattern of behaviour by the father and no evidence of a propensity or pre-disposition for violent conduct.
I have found that the mother behaved inappropriately in that she has unnecessarily involved C in the adult conflict, that she has pressured and influenced C to adopt her negative attitude towards the father and attempted to instil in him fear of his father. She has failed to place the interests of C ahead of her own, and as a result she has prevented C from enjoying the benefits of a normal relationship with his father and impacted detrimentally on his future development.
The mother’s counsel in his final address suggested that the mother had only acted on the information that she was given by Families SA and by the CPS. For example, given the “substantiation” of the alleged sexual abuse of T, the disclosures made to Ms A by C, and the consequent recommendation that there be no contact between C and the father, it was not unreasonable for the mother to have acted as she did. However, I do not accept that submission. I find that the mother did not just innocently sit by. She was the protagonist, she did not like the father, and she set out to do whatever she could to punish him, and in the process she used their child C. She was not interested in innocent explanations, or indeed any explanations, and she pursued the father regardless. She simply had to be in control.
As a result of these findings the issue became with whom the child should primarily live, and to repeat I have opted for the child living with the mother but with C having frequent, regular, significant and substantial time with his father. However, for that to be in C’s best interests the mother must change her attitude towards the father and his relationship with C. This is the mother’s one and only chance to undo the damage that she has caused to C and to his relationship with his father. To assist her she needs counselling and I note that one of the orders sought by her is just that. It would also be important that the counsellor have a copy of this judgment.
I do not need to address the issue of the child having counselling given that that was the subject of my interim orders, as was the parties attending the ‘KidsAreFirst’ Program.
The mother sought very few other orders, but addressing one that is relevant. She seeks that all handovers that do not take place at the Children’s Contact Service or at school take place at the N Police Station. However, N Police Station is not a 24 hour police station and thus it is inappropriate. The father suggests the H Police Station which is a 24 hour police station, and that is where such handovers should take place.
Turning to the orders sought by the father, there were a series of orders that he sought whatever the primary orders were, and they are set out in paragraph 3 above. The only issue raised by the mother as to these orders was that there was no provision for the Orthodox Christmas, and she wanted a different arrangement for the Orthodox Easter. However, I consider that these orders are all appropriate and they are in the best interests of C.
I certify that the preceding 249 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 22 April 2010.
Associate
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Family Law
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Injunction
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