Terzi and Bourke

FAMILY COURT OF AUSTRALIA

TERZI & BOURKE

[2015] FamCA 1241

FAMILY LAW – CHILDREN – FINAL ORDERS – With whom a child lives - with whom a child spends time – with whom a child communicates – allegations of sexual abuse - allegations of violence – allegations of alcohol and drug use – orders made changing residence of child from care of the mother to the father – condition that father live with the paternal grandmother for a period of two years – orders made that mother spend significant and substantial time with the child.

Family Law Act 1975 (Cth) ss 60CC (2), (3), (4A)
APPLICANT:	Mr Terzi

RESPONDENT:

Ms Bourke

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

686

2011

DATE DELIVERED:

13 August 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

2, 3, 4, 5 February, 10 March 2015, 7 May and 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms White

SOLICITOR FOR THE APPLICANT:

Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

All previous parenting orders in relation to X born … 2010 (‘the child’) are vacated and discharged as and from this date.

PARENTAL RESPONSIBILITY

The Mr Terzi (‘the father’) and the Ms Bourke (‘the mother’) have shared parental responsibility for the child; and that for this purpose the father and mother will do all things necessary to:-
(a)ensure that all records (include school, medical, Social Security (and other Government agencies), cultural and other entities dealing with the care, welfare and development of the child) will note both the mother and the father as parents having shared parental responsibility for the child;
(b)from time to time as is necessary, agree on a Medical Practitioner and/or Practice who is to be the provider of general practice medical services for the child and all records will note both parents as persons with whom that Medical Practitioner or Practice may liaise and take direction and will also note the paternal grandmother, Ms B Terzi (‘the paternal grandmother’), as a person with whom Medical Practitioners may communicate, take direction and liaise with in regards to the child’s medical, psychological and emotional wellbeing AND THE COURT NOTES the parties agree that the C Medical Practice D Town shall be the child’s general practice;
(c)ensure all records will note the paternal grandmother is a person with whom any school which the child attends may communicate and liaise with from time to time regarding the child’s attendance and other issues the school deems appropriate; and
(d)ensure the school records note the paternal grandmother as an emergency contact for the school and further a person who has permission to enter the school to both ensure the child attends school and to collect the child from school.

LIVE WITH ARRANGEMENTS

Except as agreed in writing in advance between the parents the parenting arrangements as to living with, time and communication are as follows.
The mother shall arrange for the child to remain in the primary care of the father following the making of these Orders.
The child will live with the mother on the following times in accordance with the arrangement set up in the previous interim orders until the child commences full time school in January/February 2016:-
(a)Week 1: from Friday after school, if a school day, or 4.00pm if a non-school day until Sunday at 4.00pm;
(b)Week 2: from Wednesday after school if a school day, or 4.00pm if a non-school day to 4.00pm the following Friday.
Once the child commences full time schooling from 2016 onwards the child shall live with the mother as follows:-
(a)Week 1: during school term from Friday after school until commencement of school Monday or Tuesday if the Monday is a pupil free day or a public holiday;
(b)Week 2: from Wednesday after school until Friday before school.
Once the child commences full time schooling (from 2016 onwards) the child shall live with the mother during school holidays in the following terms:-
(a)In the mid-term gazetted school holidays (the first, second and third terms) in the first week of such mid-term school holiday period commencing on the first Saturday at 10.00am to the following Saturday at 4.00pm.
(b)At the end of the fourth term for the Christmas/January school holidays, (save for Christmas Day, which is set out elsewhere in these orders, and is not included in this calculation for half of the nights on the basis) as follows:-
i.From December 2015 and each alternate year afterwards, the child shall spend the first half of such holiday period with the mother, such time to commence on the last day of the fourth term, and the second half of such holiday period with the father.
ii.From December 2016 and each alternate year afterwards, the child shall spend the first half of such holiday period with the father, such time to commence on the last day of the fourth term, and the second half of such holiday period with the mother. The child shall to be returned to the father three (3) days before the commencement of school term.
The child shall otherwise live with the father.
BY CONSENT the father shall live and reside with the child at the residence of the paternal grandmother for a period of two (2) years from the date of this order and for this purpose the paternal grandmother’s residence will be deemed to be the principle residence of the child for that period of time and the father will not change the child’s residence for that period other than with the written agreement of the mother or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

BY CONSENT the child shall remain enrolled at E School whilst Y remains enrolled at that school and such enrolment shall not be altered without the written consent of both parents or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

That notwithstanding the other orders, the child shall spend time with the parents on special days as follows:-
(a)With the father on Christmas Eve from 3.00pm until Christmas Day 3.00pm in 2015 and each alternate year thereafter and with the mother on Christmas Day from 3.00pm until Boxing Day 5.00pm in 2015 and each alternate year thereafter.
(b)With the mother on Christmas Eve from 3.00pm until Christmas Day 3.00pm in 2016 and each alternate year thereafter and with the father on Christmas Day from 3.00pm until 5.00pm Boxing Day in 2016 and each alternate year thereafter.
(c)With the father on Easter Friday from 3.00pm until Saturday 5.00pm 2015 and each alternate year thereafter and with the mother on Easter Saturday from 5.00pm until Easter Sunday 5.00pm in 2015 and each alternate year thereafter.
(d)With the mother on Easter Friday from 3.00pm until Saturday 5.00pm 2016 and each alternate year thereafter and with the father on Easter Saturday from 5.00pm until Easter Sunday 5.00pm in 2016 and each alternate year thereafter.

The child shall spend two (2) hours with the parent with whom she would otherwise not be living on her birthday. Such time to be agreed and in the event the parties are unable to agree from 5.00pm to 7.00pm.

In the event that the child is not otherwise living with the father on Father’s Day the time the child spends with the mother shall cease at 5.00pm on the Saturday before Father’s Day and the child shall be returned to school (if a school day) at the commencement of school or returned to the mother (if not a school day) at 9.00am on the following Monday.

In the event that the child would not otherwise spend time with the mother on Mother’s Day the time the child spends with the father shall cease at 5.00pm on the Saturday before Mother’s Day and the child shall be returned to school (if a school day) at the commencement of school or returned to the father (if not a school day) at 9.00am on the following Monday.

The parties shall provide each other with no less than four (4) weeks written notice of their intention to take the child out of the State of Tasmania; such notice to include the proposed travel itinerary, contact details whilst away, details as to where the child will be sleeping whilst away and evidence of return tickets, and the party consenting will not unreasonably withhold consent.

Each parent shall advise the other parent of any medical appointment involving the child and keep the other parent appraised of the child’s health and treatment regime, preferably in advance where appointments are made and at least within seven (7) days of any such appointment.

In the event of any emergency involving the child the parent who has the child will notify the other parent as soon as is reasonably practicable and the father will ensure that the paternal grandmother is instructed to contact the mother in the event of any emergency involving the child if the child is in her care.
In the event the mother is unable to care for the child due to medical reasons that she will as soon as is practicable contact the father and/or the paternal grandmother to arrange for them the care for the child.
Each parent will keep the other informed of their residential address, email address and telephone numbers where they can be contacted and each parent will notify the other within twenty four (24) hours of any change to any one or other of those particulars.

INJUNCTIONS

Neither parent shall be adversely affected by alcohol whilst they have care of the child.

The parties are restrained from intentionally bringing the child into contact with any person who is under the influence of illicit drugs or excessive alcohol or permitting them to remain in such contact.
Neither parent will denigrate or belittle the other parent or members of the other parent’s family in the presence or hearing of the child.
The mother shall ensure that the child is not left in the unsupervised care of her partner, Mr F.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

GENERAL ORDERS

Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Application in a case filed by the made by the Independent Children’s Lawyer on 5 May 2015 is withdrawn and dismissed.
All other extant applications, except costs applications, be otherwise dismissed and removed from the list of cases awaiting finalization.
Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
The appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of these orders or such other time as is ordered within that six (6) month period.
IT IS DIRECTED that within twenty eight (28) days from the date of this Order the Independent Children’s Lawyer forward to the Tasmanian State Child Protection Authorities:-
(a)a sealed copy of these orders;
(b)a copy of the reasons pursuant to which these orders were made; and
(c)copies of the 2013 and 2014 Family Reports.
IT IS NOTED
(a)that for a period of two (2) years from the date of this order, in the event there is any minor variation to the parenting arrangements by way of agreement between the mother and the paternal grandmother, the father will not interfere with such minor variations and will abide by such changes.
(b)That the Independent Children’s Lawyer at the final date of hearing was Mr. Fitzgerald.
The Court requests that the mother enroll and complete a parenting orders program or similar run by G Group within a period of twelve (12) months from the date of this Order.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 686 of 2011

Mr Terzi

Applicant

And

Ms Bourke

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

The child (‘the child’) is aged four. She is the daughter of Mr Terzi (‘the father’) and Ms Bourke (‘the mother’). For all of her life, she has lived primarily with the mother.
The mother and father have been unable or unwilling to agree about the best parenting arrangements for the child. Each parent believes that he or she is the better parent and that the other has personal characteristic defects and/or behavioural traits that disqualify that parent from being the child’s primary carer.
These parents neither like nor trust the other parent, and they have engaged in parenting litigation since shortly after the child’s birth.
The mother’s case was that if the child continues to live with her and if the child spends any time with the father, such time must be supervised at all times. The mother says that she believes that the father sexually abused the child and consequently, if he spends unsupervised time with the child, she would be exposed to an unacceptable risk of being sexually abuse by the father. The mother has publically propounded her view that the father is a paedophile.
The father denies that he abused the child and says that he does not pose any risk to the child. The father says that the abuse allegation was either fabricated or was an innocent reply by the child to a leading question by the mother, and the answer to which has been misinterpreted. The father says that he is not and has never been a risk to the child in that regard or at all. The father says that the abuse allegation is part of a long-term and ongoing crusade by the mother to exclude him from the child’s life.
As to the mother, the father says that she is involved in a dysfunctional social and family culture, which is characterised by abuse of illegal and over the counter drugs, abuse of alcohol, neglect of children, a failure to have secure accommodation for the child and a failure to seriously meet the child’s educational needs, dishonesty and family violence. The father’s counsel submitted that the mother’s household was, and remains chaotic, and that it is or was hedonistic in terms of the mother’s approach to life.
Given this environment the father, with the support of the child’s paternal grandmother, says that he is better able than the mother to provide a stable and secure home and effective parenting for the child. He says that in his primary care the child will be safe, will thrive and will have a relationship with both of her parents, her siblings and wider family groups.
Given the serious nature of the allegations and the inevitable profound impact upon the child if one or other or both contentions are accepted, an Independent Children's Lawyer was appointed to represent the interests of the child. That Independent Children's Lawyer participated in the hearing and made submissions as to the outcome, which submissions have been substantially adopted by the Court.
This particular paragraph of these reasons was added after completion of most of the thinking, analysis and writing in this determination. The orders I propose to make are that the child live more of the time with the father and less time with the mother and her other children. Prior to coming to that conclusion, I determined that the father does not pose an unacceptable risk in having unsupervised care of the child and I have determined that the mother’s household was and remains chaotic.
Each of the parties and the Independent Children's Lawyer seek orders that the parents have equal shared parental responsibility for the child. Whilst I have some concerns about this approach, it is probably a better way for this child to be parented given the concerns that I have in respect of both the mother and the father, albeit more of the mother than the father.
The parties are in agreement in relation to the child spending time with the other parent; half school holidays, half Christmas holidays, alternating times on Christmas Day, Mother’s Day with the mother, Father’s Day with the father, and that the child spends two hours on her birthday with the non-resident parent.
The issue is essentially whether the child spends more time during school term with the mother or more time in the school term with the father. The father seeks essentially that the child lives with him nine nights a fortnight and five nights with the mother and with time each off week. The mother seeks essentially the opposite.
In addition the mother says the father is a risk to the child and any such time ought to be supervised, in particular by the paternal grandmother.
The view of the Independent Children’s Lawyer is that the child should live predominantly with the father but that the mother’s time with the child be treated ‘as a live with order’. Given the evidence and findings, I have determined that this approach is best likely to meet the best interests of the child.

THE ISSUES

The issues related to:-
(a)whether the father is at an unacceptable risk of sexually abusing the child into the future;
(b)parental responsibility;
(c)whether the child lives primarily with the father or the mother;
(d)whether the child’s time with either parent ought to be supervised;
(e)the time the child should spend with the other parent;
(f)the relationship between the child and her eldest sister Y and her younger brother Z;
(g)the parties alleged involvement in the illegal drug culture;
(h)whether the mother’s lifestyle is chaotic and the impact this has on the child;
(i)how the parties can communicate with one another given the high level of hostility and discord between them;
(j)whether the child should attend the same school as her eldest sister Y; and
(k)the involvement of the paternal grandmother.

BACKGROUND

The father is aged 36 and was a tradesman by occupation. He has been unemployed since about February 2014. The father has not re-partnered. He says, and I accept, that he has been unable to be in paid employment during the last twelve months due to the pressures of the litigation, the serious allegations made against him and the need to prepare for this hearing.
The father does not wish to continue full time employment, given his desire to be a full time parent for the child.
The mother is aged 29 and is engaged in home duties. She has four children from four different relationships. Three of those children live in her household.
The eldest is W, aged 12, who lives with his father and has done so since January 2012.
The second child is Y, who is aged eight and lives with the mother. Y is a significant person in the life of the child.
The mother and father commenced their relationship in April 2010 and the child was born later that year, and she is now aged four.
In early 2014 the mother commenced an intimate relationship with Mr F, her current partner. Z is a child of that relationship and he was born in late 2014. Mr F has a son, V, and he lives with his father in the mother’s household. V is aged five, almost six.

Consequently, at the time of hearing the mother was the primary carer of Z, the child, Y and V.
The parties to these proceedings separated in July 2011 and these proceedings were commenced in September 2011 in the Federal Circuit Court.
Initially, the mother raised issues about the paternity of the child and consequently parentage testing orders were made. Those tests confirmed that the father is the child’s father.
In 2012 interim parenting orders were made in the then Federal Magistrates Court providing that the child live with the mother and spend time with the father for three hours each Wednesday, Friday and Sunday. Changeover was to occur at a contact centre.
That arrangement worked and time increased with the child spending two or three nights per week with the father and her paternal grandmother.
Perversely, during this period the father contemplated taking contravention proceedings against the mother because the time was not precisely in accordance with the orders. Fortunately, common sense eventually prevailed, although I had regard to the father’s technical and adversarial approach in coming to the decision that I did.
In August 2012 interim orders were made that the child spends five nights per fortnight with the father.
On 30 August 2012 the mother unilaterally and without proper notice to the father relocated her primary residence and that of the child to Queensland without the consent of the father. Recovery proceedings were commenced and orders were made. The mother returned to Tasmania with the child in March 2013.
Shortly after the return of the child to Tasmania, her time with the father resumed.
A family report was ordered and released in August 2013.
In March 2014 the mother asserted that the child made disclosures to her of sexual abuse by the father. A disclosure was repeated by the child to a medical practitioner.
There were police investigations and investigations by the Department of Health and Human Services (‘Tasmanian Child Protection’). No further disclosures were made and the files were closed.
During this period there were numerous complaints were made about the mother and her parenting to Child Protection Authorities by the father or from his ‘side’ in relation to mother’s alleged behaviour.
The proceedings had been listed for hearing in the Federal Circuit Court, but given the recent allegations of sexual abuse, the proceedings were transferred to the Family Court in May 2014, and this Court placed the proceedings in the Magellan list. A further family report was ordered.
On 4 September 2014 the parties made a parenting plan which enabled the father to spend supervised time with the child.
This arrangement failed when there was a difficulty at changeover on 2 October 2014. On that day the mother was not available at the drop off time to take the child. When the mother later attended at the father’s home an hour or so later, he refused to return the child to her, despite police intervention.
The following day the child was returned to the mother. The mother then did not permit the time to occur between the child and the father, prior to the start of this hearing.
To provide context to this circumstance, it was clear that the mother was pregnant with Z in October 2014, who was later born prematurely in 2014.
The father asserted that the mother has repeatedly attempted to prevent him from developing and/or maintaining a relationship with the child. He gave examples including denying paternity, moving to Queensland and then making what the father regards as false allegations of sexual abuse.
In June 2014 these proceedings were listed for hearing in the first week of February 2015, a lead up of about seven months. The parties were given ample time to file affidavits and prepare for the hearing. The mother was pregnant over much of that time and Z was born prematurely and he remained in hospital for over one month. The mother asserted she had legal aid but did not have time to properly instruct her solicitors.
The mother applied for an adjournment at the commencement of the hearing and that application was refused given the serious allegations in terms of the risk of the child in the mother’s care and the risk of the child in the father’s care and given that the child was not presently spending any time with the father.
The mother was permitted to adduce oral evidence during the course of the hearing and there was a lacuna between the commencement of the hearing and its conclusion.
These proceedings were heard over four days in early February 2015. The child has not had any significant time with her father since early October of 2014. An order was made on 5 February 2015 that the child spends regular time with the father and that time occurs in the presence of the paternal grandmother.
On 10 March 2015 the mother, father and paternal grandmother each gave evidence that the arrangement had worked very well. The child interacted well with both her father and paternal grandmother and there were no serious issues arising in terms of that time. There is no evidence that the child was afraid to spend time with the father nor was there any evidence of any adverse reaction by the child in spending time with the father.
When the proceedings were adjourned from 5 February 2015 to 10 March 2015 directions were made to enable the mother to file further material, including any evidence that she wanted to rely upon from Mr F.
The mother tendered a statement by Mr F and he gave evidence in accordance with that statement.
Each of the parties made submissions and judgment was reserved.
In the last week of April 2015 the parties were notified that reasons were to be delivered and orders made on Wednesday 6 May 2015. Following that notice an application was made on 4 May 2015 to re-open. As a consequence the time for delivery of reasons was vacated and the matter was listed for interim determination on 7 May 2015.
At that time the father was represented and Mr Fitzgerald represented the Independent Children’s Lawyer. The mother continued to represent herself.
In accordance with some directions made by the Court, the father filed an affidavit sworn 6 May 2015 setting out his engagement with the child.
The mother did not file any material in response to the directions by the court.
Submissions were made on behalf of each of the parties.
Interim orders were made which changed the primary residence of the child from the father to the mother.
The court permitted the parties to re-open and gave directions for filing further material by or on behalf of the mother.
An order was made restraining the child from being left in the unsupervised care of Mr F and other injunctive orders which were sought in February of 2015.
A request was made pursuant to s69ZW for a report from the Department of Health and Human Services.
The proceedings were adjourned for further hearing to commence at 10.00am on 13 August 2015. Each of the parties was provided with a sealed copy of that order shortly after they were read in court.
The child was left in the primary care of the father and to spend significant and substantial time with the mother.
Reasons were reserved and if requested would have been provided earlier or if not are incorporated in these reasons.
The Independent Children’s Lawyer tendered, by consent, a letter from her to the Child Protection Authorities dated 30 April 2015.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
The delivery of these reasons was initially listed for 7 May 2015. On 5 May 2015 the then Independent Children’s Lawyer filed an application in a case seeking leave to re-open the evidence given further allegations made by both the father and mother.
The proceedings were then adjourned to August 2015 for determination of the application in a case and, if necessary, hearing the evidence of each of the parties.
On 13 August 2015 the matter resumed part heard. The mother initially did not appear but was contacted by telephone and she appeared by telephone. The mother had not filed any further affidavits. Mr Fitzgerald, who had been counsel for the Independent Children’s Lawyer, informed the court that the previous Independent Children’s Lawyer had, after the completion of evidence in March 2015, inadvertently seen and provided advice to the mother’s partner, Mr F. As a consequence Mr Fitzgerald was appointed Independent Children’s Lawyer and the circumstances were provided by way of letter to the mother and father[1].
[1] Exhibit ICL14
Neither party objected to Mr Fitzgerald taking on that role nor did they raise any other issues in that respect.
Mr Fitzgerald informed the court that he had made enquiries of child protection and tendered his letter to them and their letter to him as to their lack of concern about the child being in the primary care of the father.[2]
[2] Exhibit ICL15 & ICL16
The Independent Children’s Lawyer sought to withdraw the application for additional evidence and that course was not opposed by either the father or mother.
Accordingly final orders were made in the hearing of the parties and these reasons were published later that day.

THE LAW

When determining orders the approach and statutory pathway is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA of the Act and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.
Pursuant to s 61DA (2) of the Act the presumption of equal shared parental responsibility does not apply as there is reasonable grounds to believe that a person who lives with a parent of the child has engaged in family violence.
Counsel for the father and the Independent Children’s Lawyer asserted that on the evidence, the presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that a person who lives with a parent of a child who has engaged in family violence.
Given the evidence in this case I accept that submission, however, given the agreement of the parties and the recommendation of the Independent Children’s Lawyer, in a prospective sense, I will make the order that the parents have shared parental responsibility but subject to some limitation.
Those orders will be made by consent.
As to unacceptable risk I will start by referring to the reasons of Murphy J in in Harridge & Harridge [2010] FamCA 445 where he set out the following list of inquiries in relation to risk assessment:-
(1)    What harmful outcome is potentially present in this situation?
(2)    What is the probability of this outcome coming about?
(3)    What risks are probable in this situation in the short, medium and long term?
(4)    What are the factors that could increase or decrease the risk that is probable?
(5)    What measures are available whose deployment could mitigate the risks that are probable?
This list is not a comprehensive but it is a good place to begin.
In N & S & The Separate Representative (1996) FLC 92-655 in the Full Court, Fogarty J considered the question of unacceptable risk and said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court considered the approach adopted in family law proceedings, where there are allegations of sexual abuse of a child, saying:-
20.    But it is a mistake to think that the Family Court [sic] is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
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."
It is in that context that I will consider and asses the question of unacceptable risk.

THE EVIDENCE

During the course of the hearing the following documents were tendered:-
Exhibit F1 – father’s case outline;
Exhibit F2 – video of 4 June 2014;
Exhibit F3 – medical questionnaire from the H Hospital as to the mother’s use of over the counter drugs dated 9 July 2013;
Exhibit F4 – school attendance records for Y for the 2014 school year;
Exhibit ICL1 – case outline of the Independent Children’s Lawyer;
Exhibit ICL2 – report from Dr J dated 22 January 2015 in relation to her interaction with the child primarily in March 2014;
Exhibit ICL3 – Child Protection report provided by Tasmanian Child Protection filed 27 June 2014. That report contains a plan by the mother and Mr F as to dealing with the underlying issues in respect of their household. That plan is attached to the back of the report. There has been little follow up in respect of the plan. It is apparently designed in a way that if further notifications are made it can be used as a tool in those respects.
Exhibit ICL4 – Family Consultant Memorandum to the Court by Ms K dated 1 May 2012;
Exhibit ICL5 – Family Report of Ms L dated 9 August 2013;
Exhibit ICL6 – Family Report of Ms L dated 13 August 2014;
Exhibit ICL8 – the subpoena material from Dr J;
Exhibit ICL9 – the Independent Children’s Lawyer tendered a copy of the relevant parts of a report from Tasmanian Child Protection. Parts of that report were referred to in submissions and were also referred to in the evidence of the child protection officer.
Exhibit ICL10 – the criminal record of Mr F was tendered in evidence. It is an extensive record dating back to 1996 when Mr F was aged 14. It is a significant history of driving offences, dishonesty and violence. In June 2006 Mr F was convicted of a breach of bail, trespass and some driving offences. He was conviction free in 2013 but had lengthy convictions in 2012 relating to assault, breach of a suspended sentence, driving offences and the like. He was also convicted of breaching a family violence order. He has an extensive police record. In addition there is a report from the Family Violence Incident Status including a violent event in November 2010 and another violent event in July 2010. These involved violence against women and in circumstances where children were present.
Exhibit ICL11 – this was the criminal and police record of the maternal grandfather.
Exhibit ICL12 – this was the police record in relation to the investigation regarding the 7 March 2014 complaint that the father had sexually abused the child.

The father

The father gave evidence in terms of his affidavit sworn 8 January 2015 and filed 9 January 2015. Also read into evidence was his further amended application of 22 September 2014 in which he set out the orders that he was seeking. Those orders substantially reflected the recommendations of the Family Consultant.
The father adduced evidence of a video of him meeting with the child on 4 June 2014.[3] That meeting arose when the mother arranged for the paternal grandmother to look after the child. The father became aware of this and contacted his mother. She asked him not to see the child as she did not wish to endanger a fragile bridge built between herself and the mother. Disregarding his mother’s wishes the father went to his mother’s place of business and saw the child. The child was happy to see the father.
[3] Exhibit F2.
In many respects this evidence is indicative of the father’s self-serving approach, which is something of a ‘bull at a gate’ attitude. He was focused on his needs and not on the fragile peace which had broken out between the paternal grandmother and the mother. In the video the child appeared happy to see him.
Another example of the father’s ‘bull at a gate’ approach was when he saw the child on 2 October 2014. Arrangements were made for the child to be returned to the mother by the paternal grandmother. For a variety of reasons the mother was not available and the child was retained at the father’s home. When the mother arrived to collect the child, she rushed to see the mother and the father adopted some sort of proprietorial stance and refused to let the child go as she was having ‘a good time’. The simple solution was for him to allow the child to go to the mother, the child was anxious to see the mother. The intervention of the police did not resolve the impasse. The child was subsequently returned to the mother the next day. The father’s approach in this event was poor and not child focussed.

The father gave evidence that he had made enquiries about the child attending D Town Primary School and M School which are located near where he lives. He clearly had the interests of the child at heart although he did not think through the relationship between the child and her sister, Y. On the evidence I find that the child and Y have a very close relationship and that Y has been, in the past, at some levels parenting the child and taking care of her.
There was evidence given that the child would be at primary school for a period of about four years when Y would also be at primary school level.
When the question of the child going to the same school as Y was raised the father complained that this could put the child to the trouble of a fifteen or twenty minute drive to the school each day. The father was insensitive to that relationship, and I have had regard to that attitude. This is a relationship where, having spent time with the child during interviews for the August 2014, the Family Consultant reported that Y had encouraged the child to hug the father goodbye and commented on these siblings, particularly their close relationship.[4]
[4] August 2014 report, paragraph 85.
The father was cross-examined as to the child spending overnight time with the mother. He said he is not without concern, but away from the pressure of her friends he does not believe the mother is a risk to the child. His evidence seems to be that the mother has a chaotic household, but that he acknowledges the importance of the relationship between the child and the mother. This is to his credit.
The father gave evidence, which I accept, that at the time of separation the mother had threatened to make false allegations of sexual abuse against him in respect of Y, if he pursued orders to spend time with the child.[5]
[5] Father’s trial affidavit, paragraph 127.
As a consequence the father said he was always careful in terms of his dealings with the child and Y and looked to his mother to support him in that respect. He denied any allegations of sexual abuse. He was cross-examined as to the ‘raspberry game’ which he played with the child. The evidence was that this was a game that was not hidden and which occurred during and after the relationship. It was innocuous.
Given all of the evidence it is unlikely that the father engaged in the behaviour which the mother alleges.
The allegation of sexual abuse arose in a high conflict time in the lives of each of the parties, particularly the mother. The night before the allegation was allegedly made the police had visited the mother’s home in terms of noise or partying or the like (the child was not present). The father had received messages about the police attending. The following day, on 7 March, the child was returned to the mother’s care at about 4.30pm. The father had had the child in his care from 4 March 2014.
There had been difficulties in relation to changeover on the previous Christmas.
When the allegations were made the father contacted the police and made statements to the police and co-operated with them. He was quite distressed when giving evidence in terms of that event.
The father was cross-examined by the Independent Children’s Lawyer about his complaints to Tasmanian Child Protection. It is clear that the father endeavoured to excuse this by saying it was merely questions of Tasmanian Child Protection. This evidence had a sense of reconstruction.
There was some police intelligence that the father may have had some minor involvement in drugs. The father conceded that as a teenager he used cannabis but said he had not used it since. There is no objective evidence of him using or dealing in illegal drugs.
The father gave evidence about the involvement of the paternal grandmother and in some ways endeavoured to understate that assistance. The paternal grandmother has been a ‘peace maker’ and ‘bridge builder’. It is concerning that the father, at some levels, endeavours to diminish her involvement in the life of the child to promote his own.
However, the father accepts that the paternal grandmother should be kept in the life of the child for a least the next few years. Given the allegations and adopting a ‘belt and braces’ approach I intend to provide that the paternal grandmother and the father reside in the same home for the next two years. It will be to the advantage to the child, given her close relationship with the paternal grandmother and will enable a stronger tie to develop in relation to the time the child spends with the mother given these reasons.
The father had been employed as a tradesman. In February 2014 the father declined an offer for work and his employment and his regular wage was terminated. Since that time the father has been engaged in dealing with the allegations of sexual abuse both through the Tasmanian Child Protection systems and the Family Courts.
It was necessary for the father to participate in the family report process and prepare affidavits. He has undertaken some work. I accept the father’s evidence that he is unlikely to go back to full time employment as he wants to be more available to the child in the forthcoming years.
The father’s evidence was not overly impeached although it was coloured by his own perceptions of the ‘righteousness’ of his cause. I treat his evidence carefully but it seems to me he generally endeavoured to be frank.

Detective N

Detective N is an experienced police officer who is trained in criminal investigations including interviewing children. She provided evidence in accordance with her affidavit sworn 16 January 2015 and filed 21 January 2015.
Detective N investigated the disclosure allegedly made by the child to the mother and to Dr J. Detective N was cross-examined in terms of her qualifications and they were not impeached. She provided evidence of the interviews by the father.
Detective N also provided evidence of an attendance at the mother’s home in March 2014. At that time she observed the child was lying naked on a mattress in the lounge room and the mother presented clothed in bed with her partner.
The child’s maternal grandfather was at home but was passed out due to the level of intoxication and was unable to be woken. There were marijuana smoking implements in the home. As a consequence of what she observed Detective N obtained a search warrant and returned to the home and discovered that eight cannabis plants were growing in the back bedroom of that home.
Detective N interviewed the child and no disclosures were made. The Detective concluded that on the available evidence it was not open to prosecute anyone in respect of the disclosures made by the child to her mother and Dr J. The Detective said that the lack of objective evidence of trauma does not mean that the child was not abused. Detective N said the child made no disclosures to the police and in the interview process the child felt comfortable and understood the questions and was open and talking freely.
Detective N’s evidence was challenged to some extent by the mother, however, it was not in any way impeached. I regard her evidence as accurate and truthful.

Ms O

Ms O provided evidence contained in her affidavit sworn 12 January 2014. She was an employee of the P Hotel (‘the Hotel’) at Suburb Q where the mother and her partner were regular patrons, at least in 2014.
I accept Ms O’s evidence as indicative of the mother using alcohol at a higher level than that which she asserted in her evidence. This included the months of April and May 2014. It is also indicative of the mother threatening violence at that time.
I accept the evidence of Ms O that the mother was posting copies of court documents on the walls of the Hotel, or facilitating that to occur, in which allegations of the father’s sexual abuse of the child was promoted. The mother conceded, that behaviour at some levels, and acknowledged that she was angry. She had little insight as to the impact of this upon the child in that community.
I accept the evidence of Ms O. Her evidence was not seriously challenged.

Mr R

Mr R provided evidence contained in his affidavit filed and affirmed 17 September 2014. He was the manager of the Hotel at the time he affirmed his affidavit but is no longer in that occupation.
Mr R’s life seemed to endeavour to straddle the lives of both parties to this conflict with the inevitable consequences, given the high levels of that conflict.
He was something of a ‘Walter Mitty’ character but provided evidence of the mother’s drinking and of Mr F’s drinking at the Hotel in 2014 which in some ways confirmed the impeachment of the mother’s evidence that she was drinking alcohol at least on a moderate basis.
Mr R also gave evidence of an allegation that a previous friend of the mother was asserted to have acted sexually inappropriately with one of her children. As a consequence Mr R was violent to that person. However and apparently in keeping with his views as to culture of the residents of that area, nothing followed from that event.
He provided evidence of Mr F and the mother using over the counter drugs. The mother admitted abusing the drugs in earlier times. I prefer Mr R’s evidence on that issue.
Mr R gave oral evidence that in recent times the mother and Mr F had chased him in his car and had threatened him. Mr R seemed not to be overly concerned about this and said that it was part of the culture of that particular socio-economic area of Hobart.
Apparently, Mr R’s affidavit was published in the community and he needed to have that withdrawn as, according to his evidence, it is dangerous to be seen as someone who co-operates with the police or authorities. This was ameliorated by a statement that it was in relation to the Family Law proceedings and not his involvement with the police.
Mr R was also present at the father’s home on 2 October 2014 when the father refused to return the child to the mother.
I have treated his evidence with some caution.

Ms S

Ms S provided evidence contained in her affidavit filed and affirmed 22 September 2014. This affidavit was read into evidence. Ms S was cross-examined by the Independent Children’s Lawyer and by the mother. Ms S is Mr F’s former partner. They lived together for approximately two and a half years. Their relationship ended about the same time as his relationship with the mother commenced. Ms S asserted there is some overlapping of the relationship and on the evidence it appears that that is the case.
She clearly does not like the mother and there has been at least one violent altercation between them. Ms S and the mother were friends until the mother and Mr F formed their intimate relationship either at the time of or shortly after the intimate relationship between Ms S and Mr F concluded.
Ms S deposes that Mr F has a long history of illicit drug use (this evidence is corroborated by his criminal record). She says, and I accept, that Mr F has a long history of alcohol misuse. That evidence is also corroborated by evidence of the investigations undertaken by Tasmanian Child Protection.
Ms S provides evidence that the child and Y are close and that Y is protective of the child. That evidence is consistent with that of the Family Consultant.
Ms S has heard the mother call the child appalling names and says that the mother yells at the children. I have treated that evidence again with care given the dynamics between Ms S and the mother, although I am satisfied there is at least some substance to the allegation.
Ms S’s evidence in relation to the father is of a partisan nature and she has reason to dislike the mother and Mr F, as such I have treated her evidence with caution.

Ms T

Ms T provided evidence in accordance with her affidavit affirmed and filed 11 September 2014. She was cross-examined. She gave evidence of parties at the home in which the mother was living (her parents’ home) and some alcohol issues in relation to the mother’s parents. There was no issue that the mother’s parents have significant domestic and alcohol difficulties.
Ms T provided some insight into the somewhat dysfunctional and chaotic household in which the mother and child lived in at that time.
Ms T also provided some supporting evidence as to Y’s failure to regularly attend school. In addition she provided evidence that the children are at times not properly clothed and are left unsupervised.
I give Ms T’s evidence some weight, although in the context that she dislikes the mother and is close to the father. However, her evidence was not seriously challenged.

Ms U

Ms U provided evidence contained in her affidavit filed 4 April 2014. Her evidence was as to the state of the home occupied by the mother at D Town between August 2013 and January 2014. When the mother left there was rent outstanding and she lost her bond.
This evidence was not challenged.

Ms B Terzi

Ms B Terzi provided evidence in accordance with her affidavit filed and affirmed 9 January 2015.
Ms B Terzi is the child’s paternal grandmother (‘the paternal grandmother’) and her evidence was a breath of fresh air.
She provided a sense of reason to the parties and endeavoured to reduce the conflict and animosity that existed between them. If the Court orders the father to reside in her home she is prepared for him to reside there as long as he wants. She is also prepared to assist with regard to the child with whom she has a close and loving relationship and which is reciprocated.
The paternal grandmother is teaching the child her language and culture and has made Y welcome into her home. She says Y may stay whenever she wishes to do so. The paternal grandmother was sensitive to and is supportive of the child’s close bond with Y.
It seems that the mother trusts the paternal grandmother but for the events in June 2014. In relation to that event the mother came into the shop where the paternal grandmother worked and they made arrangements for the child to spend time with the paternal grandmother. The father found out about this event through someone else and wanted to come along to see the child. This was contrary to the arrangement between the mother and paternal grandmother.
The paternal grandmother, sensibly, tried to dissuade the father from visiting the child as it would breach the trust she had with the mother. The father nonetheless attended the shop and spent time with the child. The trust between the paternal grandmother and the mother was damaged and the father still has little insight into his behaviour.
The paternal grandmother has provided significant assistance to the parties when they were together and to the father, and more importantly to the child, since that time.
The paternal grandmother was frank in her evidence although careful about any criticisms of the father. She was reluctant to give evidence although felt she needed to do so for the purpose of the final hearing. Her criticisms of the mother, such as they were, were quite muted as was her criticisms of the father. I accept that she endeavoured to give her evidence frankly and carefully.
Her sensible and conciliatory behaviour has shown up in a series of text messages between herself and the mother between August 2014 and December 2014.
When the father held the child back in October 2014 the paternal grandmother was critical of him and endeavoured to change his mind.
She encourages flexibility between the parties. She is a calm and thoughtful witness.
The paternal grandmother said the mother was routinely late. She said that she was happy to facilitate times as long as there was good communication in relation to times. The mother had conceded that punctuality was not her strong suit.
The time that the paternal grandmother becomes concerned is when the mother leaves changes to the arrangements to the last minute which, given the paternal grandmother’s work and other commitments, makes things difficult.
I generally accept her evidence.

The mother

The mother gave evidence in terms of her affidavits filed 17 July 2014, 2 August 2013 and Notice of Abuse filed and sworn 5 May 2014. These documents were prepared for her by a solicitor.
In June 2014, when this matter was listed for hearing in February 2015, the mother and the other parties were directed to file affidavit evidence, but the mother did not do so. At the commencement of the hearing she was given leave to adduce oral evidence in chief.
In terms of exchanging information between the parties, the mother said she was comfortable with the father knowing her telephone number and she knowing his and the paternal grandmother’s. The mother was content for an order to be made that each party keep the other informed as to their residential address, email address and mobile telephone numbers.
The mother gave evidence of the events on 2 October 2014 and asserted that the father injured the child. The father asserted the mother injured the child. Irrespective neither can walk away from that event with any satisfaction. The child was exposed to appalling conflict between her parents at that time.
The mother says that she has chronic pain as a consequence of injuries arising from a car accident. There is evidence that the mother has at times abused ‘over the counter medication’ and this has apparently caused her permanent liver damage. The extent, although subjective, of her difficulties are set out in a questionnaire she provided to the H Hospital in 2013.[6] The mother faked an overdose in Tasmania to try to get better quality pain medication; it didn’t work. The health issues impact upon the mother’s physical ability to parent, although that is not an issue upon which this determination is made. The mother asserted that she is now managing the medication. Given the concerns I have about her evidence, I am not so sure that that is the case.
[6] Exhibit F3.
At least since the birth of the child, the mother has a history of frequent changes of accommodation. She provided various addresses, including Suburb AA, Suburb Q, Suburb BB, Suburb Q again, and some time at Suburb CC.
The mother asserted that she travelled to Queensland on a holiday. I do not believe her. The mother signed a lease, said she was going to live in Queensland and required a recovery order to come back to Tasmania. She had also her dog flown to Queensland. The mother’s assertion that this was a holiday was fabrication. I find that it was not a holiday; instead it was a relocation with the effect of either preventing or minimising time between the child and the father. The mother conceded that she went to Queensland without the father’s consent, contrary to his views and contrary to orders made in the Federal Circuit Court in 2012.
The mother returned to Tasmania in March 2013 and stayed with her mother at Suburb DD, then D Town (she could not meet the rent in that property) then back living with her mother and father in their dysfunctional household and now at Suburb E. Since her last change of residence, the mother’s accommodation has been stable.
In cross-examination the mother conceded that the father was a ‘hands on’ father and that the child’s names reflected the nick name of his mother and the middle name as to the father’s paternal grandmother.
The mother agreed that the father had always sought time with the child. She asserted, and I do not accept, that the father was growing and smoking cannabis. There is no issue that the mother’s parents were smoking and growing cannabis and this is clear from the evidence of Detective N.
The mother’s evidence was problematic. An example was her evidence in relation to when Mr F met the child. The mother said he did not meet the child until 7 March 2014. This cannot seriously sit with the evidence of the close friendship between the mother and Ms S and the social engagement between them living across the road. The mother said that the physical relationship with Mr F did not commence until after 7 March 2014 but when reminded of the altercation between her, Ms S and the father she said that was something she had forgotten.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

The mother tries to be a good parent but given her circumstances, her health and her attitude, she has been unable to achieve this in an effective and responsible way.
I accept the submissions of the Independent Children’s Lawyer that the mother’s behaviour reflects a poor attitude to the child and the responsibility of parenthood generally.
Whilst the father has problems with the assistance of the paternal grandmother he is able to provide a better platform for the child.

(j) any family violence involving the child or a member of the child’s family;

The mother’s current partner has a history of family violence in his previous relationships. There is no evidence of violence in the mother’s present household. Apart from the approach of both parties in October 2014, there is no evidence that the mother or child is at risk of violence at the hands by the father.

(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;

There are no relevant family violence orders.

(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;

If the child is left in the primary care of the mother it is inevitable that further proceedings will come about as the mother struggles to cope and the unfortunate lifestyle of the past four years will perhaps continue, potentially resulting in the household changing addresses and the children changing schools.
With the child living primarily in the care of the father and the mother having significant and substantial time with the child, the likelihood of further proceedings is diminished.

(m)any other fact or circumstance that the court thinks is relevant;

In coming to this conclusion I accept the submissions of the Family Consultant that the father’s household will give the child some sense of stability and tranquillity which she has not, and is unlikely to achieve in the continued primary care of the mother.
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)     to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
There is some evidence that the father has been at times reluctant to pay child support and has allowed arrears to accumulate. As a consequence he paid $1,800 in arrears in about December 2013.
It was asserted that the father endeavoured to reduce the child support funds he paid to the mother to promote his case. I am not satisfied, on the material before me, that this was in fact the case. I am satisfied that the father has ceased work given the intensity of the conflict.
The father sought orders that the mother attend a parenting orders program. The mother has health difficulties and has the care of the child and three other young children in her household. I will recommend that the mother consider undertaking such a program however given those matters I will not make an order although the mother will be aware that attending may be a factor in terms of any further issues that arise between the parties.
The father has attempted to participate in the child’s life but this has been restrained by the mother. It is likely that the father, with the support of the paternal grandmother will facilitate the time with the mother and facilitate the child’s involvement with the mother her sister and her broader family.

PARENTAL RESPONSIBLIITY

I have earlier said I found and determined that pursuant to s 61DA (2) of the Act the presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that a person who lives with a parent of the child has engaged in family violence. As I indicated earlier I will make the consent order for shared parental responsibility although with some limitations to which I have alluded to earlier.

RESIDENCE

I intend to make an order changing the primary residence of the child from the mother to the father although I will make provision for the child to spend significant time with the mother.
School holidays will, from 2016, be divided equally and the child will spend significant time with the mother during school term and, if Y remains at Suburb E School the children will be at school together each day.
I accept the submissions of the Independent Children’s Lawyer that this ought to be a residence/residence order rather than a residence/live with order particularly given the confrontational approach adopted by the father from time to time.
Accordingly, and given the matters I have discussed earlier, I intend to make an order for the child to live primarily with the father and live significant and substantial time with the mother.
I had read the recommendations of the Family Consultant about equal time and I considered both the current arrangements but with the father having significant and substantial time, and then I considered equal time.
Given concern about the matter and the impact of those having regard to the relevant s 60CC factors I am satisfied that equal time is not in the best interests of the child.
I have considered the injunctions and other matters sought by the father which are, to a large degree, not opposed by the mother.
Given these findings, facts and circumstances I will make the orders as set out earlier in these reasons.

I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 August 2015.

Associate:

Date: 13 August 2015

[2015] FamCA 1241

13 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies