Tran and Ferguson

FAMILY COURT OF AUSTRALIA

TRAN & FERGUSON

[2009] FamCA 1026

FAMILY LAW – CHILDREN – Rebuttal of the presumption in s.61DA(1) on the ground of family violence per s 61DA(2)(b) – whether it is in the best interests of the child that sole parental responsibility be conferred upon the Intervenor – the competing applications regarding with whom the child shall live – application of the primary and additional considerations per s 60CC(2) and (3) to the proposals of the parties – difficulty that arises in relation to an unidentified prospective carer of the child

Family Law Act 1975 (Cth) ss 4, 60, 60B, 60CA, 60CC, 61DA, 65AA, 65DA
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 44
Evidence Act 1996 (Cth) s 140(2)

M v M (1988) FLC 91-979
B and B, Family Law Reform Act 1995 (1997) FLC 92-755
Johnson & Page (2007) FLC 93-344
Mazorski & Albright [2007] FamCA520

APPLICANT:

Ms Tran

RESPONDENT:

Mr Ferguson

INTERVENOR:

Director-General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring Solicitors

FILE NUMBER:

SYC

643

2008

DATE DELIVERED:

30 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rose J

HEARING DATE:

10-14 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Jamieson

SOLICITOR FOR THE APPLICANT:

Di Lizio & Associates Solicitors

RESPONDENT:

In person

COUNSEL FOR THE INTERVENOR:

Mr M. Anderson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor’s Office NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M. A. Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

Orders

That by consent, all previous parenting orders in relation to N born … October 2004 (“the child”) are discharged.
That the Intervenor have sole parental responsibility for the major long-term issues in relation to the child as follows:-
(a)The child’s education (both current and future); and
(b)The child’s religious and cultural upbringing; and
(c)The child’s health; and
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
That the child live with the Mother which shall commence on or before 10am Saturday 7 November 2009.
That the Intervenor do all things necessary to facilitate the implementation of Order 3.
That the Intervenor monitor and provide guidance to the Mother and Father in relation to the care of the child by each of them on a monthly basis for six months, commencing on or before 14 November 2009 and thereafter periodically as the Intervenor considers appropriate consistent with the parental responsibility conferred upon the Intervenor pursuant to Order 2.
That the Father spend time with the child as follows:-

For the period expiring 30 April 2010:

(a)Each alternate Saturday from 10am to 4pm the first occasion of which shall commence on Saturday 14 November 2009; and
(b)Each alternate Sunday from 10am to 4pm the first occasion of which shall commence on Sunday 22 November 2009.

For an indefinite period subsequent to 30 April 2010:

(c)Each alternate weekend during each school term from Saturday 10am until 5pm Sunday the first of such weekends to commence on the first weekend of each successive school term.

Other periods commencing from the date of these orders:

(d)On Father’s Day if it falls on a day when the Father is not otherwise spending time with the child between 10am and 4pm;
(e)On the child’s birthday if it falls on a day when the Father is not otherwise spending time with the child and is during a weekend between 10am and 1pm or should such birthday fall on a weekday between 4pm and 6pm or such other times as the parties may agree upon;
(f)On each alternate Christmas Day from 10am to 4pm commencing on Christmas Day 2009 and on each other alternate Christmas Day commencing from 4pm until 10am on Boxing Day commencing Christmas Day 2010; and
(g)During such alternate or other periods including in school holiday periods as the parties may agree upon from time to time.

That for the purpose of the Father spending time with the child on Saturday the child is to be delivered to the children’s section of the E Municipal Library at 10am by the Mother or other adult known to the child and collected by the Mother or such adult from the Father at the same place at 4pm.
That for the purpose of the Father spending time with the child on Sunday the child is to be delivered to McDonald’s at the Shopping Centre at E at 10am by the Mother or other adult known to the child and collected by the Mother or such adult from the Father at the same place at 4pm.
That each of the Mother and Father have the sole responsibility for the day to day care, welfare and development of the child while the child is living with her or him as the case may be.
That the Father be restrained from consuming any alcohol for a minimum of 24 hours before the time which he is to spend with the child and whilst he is spending time with the child.
That the Father and Mother each be restrained from assaulting, molesting, harassing or denigrating the other.
That the Father and Mother each be restrained from making any critical comment about the other in the hearing of the child.
That in the event of the child becoming seriously ill or injured whilst in the care of either the Mother or the Father then the parent who has the care of the child shall inform the other parent as soon as possible of the detail of such illness or injury and the name and address of the relevant hospital or medical practitioner providing treatment for the child.
That the Mother and Father ensure that each of them has the current mobile telephone number and/or landline number for the purpose of providing communication together in relation to the child.
That the Mother shall ensure at all times that the Principal of all schools attended by the child is authorised to provide to the Father copies of the child’s school report and any other notices in relation to the child’s sport and school activities upon his request.

Procedural Orders

That pursuant to s.65DA(5) the solicitor for the Mother is requested to ensure that these Orders and the judgment delivered this day are forthwith translated for the Mother by an official interpreter from English to Mandarin.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 643 of 2008

MS TRAN

Applicant

And

MR FERGUSON

Respondent

And

DIRECTOR GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES

Intervenor

REASONS FOR JUDGMENT

Introduction

In these proceedings, each of the parties seeks parenting orders in relation to the child of the Applicant Mother and Respondent Father, a daughter, now five (5) years of age having been born in October 2004 (“the child”).
Each of the parties was legally represented with the exception of the Father who was unrepresented throughout the trial.
In these proceedings the Mother sought parenting orders in accordance with her Application filed 6 February 2008. That Application was subsequently amended unopposed by the Minute of Orders sought by her which became Exhibit 15.
In accordance with Exhibit 15, the substantive orders sought by the Mother are that prior parenting orders be discharged; that the child live with her; that the Mother and the Father have equal shared parental responsibility for the child and that the Father may spend periods of time with the child from 10am to 4pm on a weekend day each week as well as on other specified occasions. No order was sought by the Mother that the periods of time that the Father may spend with the child be on a supervised basis. That is significant given her allegation against the Father that he has sexually abused the child or alternatively that there is an unacceptable risk of such abuse occurring.
The Respondent, Mr Ferguson (who for convenience I will refer to as “the Father”) had sought orders in accordance with his Response filed 9 May 2008. That Response was subsequently amended unopposed in accordance with the Minute of Orders sought by him being Exhibit 16.
Pursuant to Exhibit 16, the Father sought orders that he and the Mother have equal shared parental responsibility and that the child live with him and periods of time that the Mother may spend with her child being substantially a mirror image of the orders sought by the Mother to which previous reference has been made.
The Intervenor sought orders in accordance with Exhibit 17. The substantive orders so sought are that the Intervenor have sole parental responsibility for the child; that the child spend supervised periods of time with the Mother, being one period of two hours each four months and such other times as agreed by the Intervenor. In addition, that the Mother and that the child also spend supervised periods of time with the Father, being for one period of such duration as determined by the Intervenor, taking place each second calendar month as well as any other times as agreed between the Intervenor and the Father. A notation to Exhibit 17 is in the following terms:-
“It is noted that from the date of these orders, unless the Director General as delegate of the Minister in her absolute discretion determines otherwise, the child shall live with the long term carers chosen by the delegate of the Minister.”
As can be seen, the important issue of with whom the child should live was not sought to be the subject of an order but rather a notation, which of its very nature is unenforceable. I will refer to that matter in my conclusion.
The Independent Children’s Lawyer sought orders in accordance with Exhibit 14. The substantive orders so sought are that the Intervenor have sole parental responsibility for the child and that the child be placed in long term care by the Intervenor. In addition, orders were sought that the child spend a period of two hours each week with each of the Mother and Father on a supervised basis until such time as long term care arrangements have been made for the child by the Intervenor whereupon the relevant period of time change to two hours each month on a supervised basis.

Relevant legal principles pursuant to the Family Law Act 1975 as amended (“the Act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”.
The principles underlying those Objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the Act continues what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755.
Section 61DA(1) provides 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.”
Section 61DA(2) provides that such presumption does not apply should one or other of the following grounds be established, namely:-
(1)Should there be “reasonable grounds to believe that a parent of the child (or a person who lives with the 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.”
(2)That the Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied “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.”

Relevant matters pursuant to section 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[2] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[2] Family Law Act 1975 (Cth), s.60CC(1).
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[3]
[3] Ibid, s.60CC(2).
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[4]
[4] Ibid, s.60CC(3).
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.
A fundamental element in the case for the Intervenor is that potential long-term carers will only be selected and assessed in the event that final orders are made which provide the Intervenor with the parental responsibility to do so. Accordingly, it follows that no findings of fact can be made in relation to any of the matters that underpin almost all of the primary and additional considerations pursuant to section 60CC(2) and (3) so far as any potential long term carer is concerned, as there is an absence of evidence to enable such findings to be made.

The views expressed by the child and relevant factors

The child is very young and was not quite five years of age during the course of the trial. There is no direct evidence of her views in relation to the significant issues for determination which is understandable in the circumstances.
However, I infer that the child does have a view to spend time with each of the Mother and Father given the attachment and bond that she has with them and the love and genuine concern that each of them have for her.

The nature of the relationship with the child with each of the parents and others

In the last preceding paragraph I made relevant findings.
I accept the evidence of the former case manager, Ms F that the child was happy and showed pleasure in being with the Mother and her evidence was also positive so far as her observations of the relationship between the child and the Father was concerned.
I also accept the evidence of Dr R that it was not a matter of controversy that the child has significant attachment with each of the Mother and Father.
Indeed, he emphasised that there appeared to be a loving commitment by the Mother to the child and inferentially between the Father and the child.
Having regard to the evidence that I have summarised in relation to this particular matter, I find that the child does have a loving relationship with each of the Mother and Father with whom she is attached. I also accept the evidence of the case workers that the child has established a good relationship with her temporary foster carers.

The capacity of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

My findings in relation to this particular matter, so far as the Mother and Father are concerned follow my subsequent review of the substance of the evidence given by each of them as well as relevant case workers and Dr R.

The Mother

The Mother was previously the registered proprietor of her residential property at E. It was subject to a mortgage of about $703,000 requiring mortgage repayments of about $5000 per month. The Mother sold the property for $739,000 and the sale was settled on 8 September 2008.
Subsequent to the sale of her E property the Mother has rented a two bedroom unit in E which she currently occupies on a six-month lease which commenced at the end of June 2009 at a rent of $510 per week. The Mother lives in those premises alone although she stated that on the day of giving her evidence, namely 11 August 2009 an overseas female student was due to commence occupying one of the bedrooms paying $200 per week. The Mother’s further evidence was that she would only accept a female student.
The Mother’s evidence was that her rented home unit premises were close to local schools. There was no evidence that threw any doubt on the veracity of the Mother’s evidence which I accept.
Accordingly I find that the Mother has the capacity to provide for the physical needs of the child.
With regard to the Mother’s capacity to provide for the emotional needs of the child and to afford her a suitable environment in all respects free from any harmful influences arising out of the sex industry, are matters of controversy. The issue of family violence also has implications for the ultimate findings in relation to the capacity of both the Mother and the Father to provide for the needs of the child, with the exception of the physical residential environment which each can provide. I have made separate findings in relation to the issue of family violence dealt with subsequently in this judgment.

It is common ground that the Mother and Father have had a volatile relationship.
In or about the end of 1999 the Mother and Father commenced living together in Western Australia.
During the year 2000 and following allegations that the Father had been heavily intoxicated and violent towards the Mother, they separated. During a very short unspecified time they resumed living together in Sydney from early 2000 until they separated again during the second half of 2002. On that occasion the Mother remained living in Sydney and the Father commenced living in Adelaide.
Cohabitation was resumed in Sydney towards the end of 2003. During that time the Mother became pregnant with the child through an IVF procedure.
Following the birth of the child the Mother cared for her full time for about four weeks before returning to work at her business Monday to Friday from about 9.15am until 11.00pm. Whilst the Mother was absent at her business the Father cared for the child. Upon the child being seven months of age a nanny employed by the Mother cared for the child whilst the Mother was at work.
In mid 2007 the Mother enrolled the child at a day care centre which she attended five days a week. The Father took the child to the day care centre and collected her in the afternoon and then assumed the care of her until the Mother returned from work.
The Mother ceased the care of the child on or about 8 January 2008 following the incident referred to in paragraph [175] hereof and the domestic violence orders made against her on 16 January 2008 in the Local Court.
Whilst the evidence is far from direct and precise, I infer from the evidence of the Mother which is not challenged that she did care for the child during the periods referred to and provided for the child’s food, clothing and other needs, principally, if not exclusively, from her financial resources.
In June 2008 the Mother’s appeal to the District Court from the apprehended violence orders was allowed and implicitly an order made in the lower court restraining the order from returning to her E home was discharged. The Mother returned to that home during the evening of 12 June 2008 and resumed care of the child together with the Father.
During the following period, the Mother washed and dressed the child, prepared and fed her breakfast before driving her to the child care centre in the morning and then collected her at about 4.30pm. The Mother then played with the child, prepared and fed her dinner, bathed her and put her to bed. The Father was absent during those periods and did not return to the home until about 7.00pm.
On 8 July 2008 interim parenting orders were made in the Federal Magistrates Court. Those orders were made by consent. Pursuant to those orders the Mother and Father commenced to spend supervised time with the child.
On 1 August 2008 that supervised time was reflected in the interim orders made that day amounting to two hours per week for each of the parents supervised by a delegate of the Intervenor.

The Father

I accept the evidence of the Father that at the date of the trial he was renting shared accommodation of part of a three bedroom unit owned by a friend who was also occupying part of it. The Father was paying him $150 per week in rent.
The Father is in receipt of social security benefits amounting to $500 per fortnight. The balance of his income after payment of rent is utilised to purchase food and to meet other living expenses.
He holds a bus driver’s licence. He has received assistance for future employment from the vocational rehabilitation services course at E. He has applied for a bus driver’s job with the state government depots. He was thirteenth on the list for an interview. He also has applied for a valet parking employment and was awaiting a response. His capacity to earn income is limited to driving and/or light duties due to a knee injury that he had sustained.
I accept the evidence of the Father, which is that he has a limited capacity to provide for the physical needs of the child in that the shared rental accommodation to which he refers has not been experienced by the child and there is no evidence that the child is acquainted with the other occupant who is the owner of the unit, let alone that the child will respond positively to him. However, given the loving relationship that the child has with the Father, it is probable that the child would adjust to spending time with Father at such accommodation. The Father has very little discretionary income to provide for child support for the child. The employment that he is seeking is for the purpose of earning $800 to $1,000 per week which I find to be on a gross basis, absent any evidence to the contrary. If and when he receives such employment, then his capacity to provide for the child’s physical needs will significantly increase.
The Father is seeking orders which would permit the child to live with him on the basis of relocating to L in the State of South Australia.
The Father’s affidavit evidence provides historically different proposals for accommodation for himself and the child in L and employment prospects to provide sufficient income to meet living expenses for himself and the child.
In his most recent affidavit, being that sworn on 30 March 2009, he refers to family support that he has been promised by one of his sisters, Mrs H, who has also given evidence in the proceedings. In that affidavit, the Father’s evidence is that his family, which implicitly includes other relatives living in L, have promised to assist him with meeting with what he describes as “setting up costs including bond money”. His understanding is that rental accommodation is available at a rent of about $200 per week for a two to three bedroom house.
Mrs H, in her affidavit sworn 16 April 2009 and filed 17 April 2009 refers to another sister of herself and the Father together with that sister’s husband and their two adult daughters and the paternal grandfather who all live in L. In addition, there is a step-family who also live in L and a brother and his family live in Adelaide. Mrs H states that she has not seen either the Father or the child for a period of about two years, although she communicates with him regularly by telephone.
Mrs H corroborates the evidence of the Father in relation to the financial assistance that would be provided of the nature to which I have referred and that in addition there is ample rental accommodation available based on her enquiries.
Mrs H expresses the opinion that there is employment available in L in terms of factory work, although she qualifies that evidence by stating that she is unaware of any change that may be caused due to the economic climate. There is an absence of any evidence from her in relation to enquiries made and or relevant advertisements or other documentation which would suggest that there is also potential employment for the Father in driving buses given that that is his aspiration for employment in Sydney.
In addition, Mrs H expresses the willingness for herself and her husband and other family members in L to provide assistance in the care of the child “from time to time if required due to any work commitments that the Father may have”. Nothing more precise emerged in her evidence such as particular days and hours of the week in which assistance would be available including taking the child to and from school and the length and time that such assistance would be available to the Father. I mention those matters as amongst other things there had been a previous proposal by Mrs C, a sister of Mrs H and the Father, to care for the child on a full time basis, but such proposal was subsequently withdrawn by her. It appeared that Mrs C may have been misinformed or was under the wrong impression, that the period of any such care by her of the child would only be for a short time such as about two months. Indeed, the Father, in his affidavit sworn 8 May 2008, contended that he had been offered accommodation by Mrs C and her husband in the nature of “cheap rent” of a two bedroom cottage in L. The period of time for such occupation was not referred to. However, as is apparent from the Father’s most recent affidavit to which I have referred, a different plan was put forward by him for accommodation for himself and the child in L. Accordingly it follows that the earlier proposal of occupation of a two bedroom cottage to be provided by Mrs C and her husband is no longer available as otherwise there would have been no point in making his different proposal in his later affidavit.
During the course of his oral evidence, the Father stated that an unnamed friend who was engaged in security work in L had informed the Father that he “may” be able to offer the Father office work. The Father is familiar with L. He stated that there was a two year waiting list for government accommodation in L. During the course of her oral evidence, Mrs H stated that whilst she could provide the financial assistance in relation to accommodation to which I have made earlier reference, it would be “difficult to help for a longer period”. Mrs H reiterated that the Father would have to seek light duties and otherwise had to qualify her evidence as she frankly stated that she was not an employment consultant.
I accept the evidence of the Father and Mrs H in relation to the qualified potential for suitable accommodation in L which may be available for the Father and the child. To that extent it represents a limited capacity to meet the child’s physical needs and the limitations in that respect are also highlighted by some prospects of employment, but the evidence does not advance the issue much further. In that regard the Father states, which I accept, that he could only rely on his family’s enquiries and could not make an application for any particular employment on a more precise or reliable basis until such time as he became aware through the determination of these proceedings of the Orders that are made concerning with whom the child would live and, inferentially, the fate of his application for the child to live with him preferably by relocating to L in South Australia.

Expert Evidence

The Court-appointed child expert, Dr R, child and family psychiatrist furnished four reports dated 22 June 2008, 10 September 2008, 25 November 2008 and 6 July 2009 which became Exhibits 1, 2, 3 and 4 respectively. In addition, Dr R gave oral evidence. I have set out the substance of his evidence, drawn from Exhibits 1, 2, 3 and 4 and given orally in the following paragraphs in relation to each of the parties and the child, culminating with his recommendations.
In Exhibit 1, Dr R expressed the opinion that the Mother does not have any major mental health issue. He emphasised that “the major concern about [the mother] is her involvement in the sex industry and her commitment to that industry which may be at the cost of being available to be a full-time carer of her child.”
With regard to the incident in January 2008 to which earlier reference has been made, Dr R understandably expressed a view that it was an extreme situation when the Mother behaved erratically and the police attended. However, he then gave his opinion that “I don’t believe that she is an unacceptable risk to the child. I believe that she is very invested in caring for the child and having a good relationship with her”.
That last opinion was qualified by the view expressed by Dr R that in the event of the child residing with the Mother, he considered that the Mother was “unlikely to reduce her work as it appears very important to her. [The child] would need to be cared for by a nanny or the Father.” Dr R corrected the fourth paragraph on page 13 by stating that the word “less” had been omitted from the report and that the view that he was expressing was that should the family remain in Sydney it would be “less” difficult and the child would be able to have a relationship with both parents.
Dr R considered it to be “extremely difficult to make lasting recommendations” due to the issues of concern that each of the parties have and the difficulty of addressing the Father’s proposal that the child be able to live with him by way of relocating to Adelaide. Ultimately, Dr R’s recommendations were that the child remain living with the Father who appeared to be coping adequately and that the Father “may be the more competent of the two parents as the Mother appears to find it difficult to prioritise the child over her work and appears to “be somewhat erratic and volatile in her behaviour when under stress.” He did not consider that there was an unacceptable risk of harm to the child by the Mother “as a contact parent” and suggested that such contact take place during mid-week. He made further recommendations including counselling; that the Mother not expose the child to any aspects of the sex industry; neither parent consume alcohol in front of the child nor use any form of physical punishment; that the relevant government department by its services take a monitoring role in the progress of the child, particularly bearing in mind the difficulty of ascertaining a level of alcohol consumed by the Father and whether the Mother may be exposing the child to the sex industry, as well as the degree of conflict between the parties.
Dr R further recommended a reassessment of the issues in 12 months time.
Exhibit 2 commences with Dr R’s review of documents produced on subpoena by the Proper Officer of the Department of Justice. It is not a matter of controversy that those documents reveal that the Mother had been convicted of manslaughter and had been sentenced to a non-parole period of 18 months in 1993, although the Mother’s recollection is that the period was 23 months.
In addition, the Father’s criminal record provided particulars of many charges of alcohol and driving offences, larceny, break and enter as well as a custodial sentence of four months for driving related offences in the 1980s. In addition there were numerous apprehended violence and domestic violence proceedings.
The documents produced by the Intervenor referred to an incident in June 2008 when the police were called. Allegations were made by the Mother that the child had been sexually abused by the Father and the child apparently made statements which may have raised that issue.
Dr R reviewed information provided to him by Ms F, a case worker with the Intervenor, and provided his observations and the results of interviews with each of the parties and the child.
Exhibit 3 contains the report which is dedicated to the issue of whether or not the child had been sexually abused by the Father, as well as the capacity of each of the parties to provide appropriate care of the child.
Dr R referred to an earlier assessment of his when he had concluded “that is appeared highly unlikely that the child had been sexually abused” but following his viewing of “the JIRT interview I found it difficult to make a clear assessment” for the reasons explained by him.
Dr R expressed the firm view that he considered that the Mother’s behaviour and attitudes referred to in the earlier report “are very disturbed” and he had “very little confidence” in her judgement. He concluded that she was not capable of caring for the child and considered it most likely that the child’s report of alleged sexual abuse had been influenced by the Mother’s questioning. However, the matter does not end there. Dr R expressed his “major concerns about the Father’s judgment of allowing the Mother back into the house and to be near the child when it is clear that the situation always results in major conflict.”
Dr R reiterated the qualification to the issue of sexual abuse, noting the “extremely disturbed nature of the parents’ relationship and extraordinary pressure on the child.”
Dr R concluded by stating:
“I hold serious doubts about the parenting capacity of both parents. I regard the Mother as an extremely unfit Mother who should not have care of the child. The Father shows very poor judgment and I believe does place the child at risk by being exposed to the Mother.”
He reiterated his belief “that there is a great risk that [the child] will not be appropriately protected in the care of either parent.”
Exhibit 4 commences with a review of concerns and recommendations made by Dr R in his earlier reports, being Exhibits 1 to 3 inclusive.
Exhibit 4 substantially deals with the following further material. A summary is given of the interview with the supervising care worker who “described the Mother as a loving, generous person who interacted well with the child.” The care worker noted that the child responded well to the Mother and enjoyed the time that she spent with her. The Mother was a caring parent with a tendency at times to attempt manipulation of the child when misbehaving. The care worker noted that the Mother was “very careful not to confront the child” and that the Mother seemed “quite anxious about keeping the child happy for it to not reflect badly on her.”
With regard to the Father, the care worker stated that he is regular, implicitly, in his time to be spent with the child and enjoys seeing her who responds well to him. However, it was noted by the care worker that the Father “doesn’t appear to connect as well emotionally” and that the food he brings does not seem to reflect careful thought.
The care worker further informed Dr R that the child “is living with a carer who is quite strict with her and [the child] seemed to like that. [The child] seems to be a bright active child.” The child apparently has been interacting well with other children and her carers. In conclusion, the care worker noted that “[the child] appears anxious and is constantly saying she wants to live with her Mother and Father.”
Dr R also interviewed the child who presented well and made positive comments in relation to her carers family and each of the Mother and Father in these proceedings. However, in relation to her parents, she appeared to Dr R to be “rather confused” but also made the same statement to him as she had apparently been frequently saying to the care worker that she wanted to live with her parents.
Dr R had also conducted interviews with each of the parents and a former case manager, as well as having joint interviews with the Mother and the child and separately with the Father and the child.
The Mother informed Dr R that she was living in a two bedroom unit in E and spending time with the child for two hours each Monday. In addition, the Mother also stated that she had recently left the management of her business to someone else and was now earning $100 a day from it. The Mother stated that she had previously obtained an Apprehended Violence Order against the Father which had now expired and did not communicate with him and had no desire to do so.
The Mother stated to Dr R that she wanted to have the child in her full time care. Her proposal was that the child live with her at E and attend a nearby school with “contact” to take place with the Father as ordered by the Court. The Mother expressed a concern that the Father has a change of personality when he drinks at night and she did not think it would be safe for the child to be with him in that situation. The Mother also stated that she did not want to see the Father at “handovers” and suggested that there be a supervisor. Further concerns were expressed by the Mother in relation to scratches on the child and that allegedly one of the children of the foster carer apparently throws things that might hurt the child. The Mother also had a concern that the child was not being given enough fruit. Regular complaints have been made by the Mother to an employee of the Intervenor.
The Father was also well presented through his interview with Dr R, and as with the Mother stated that he had supervised weekly periods of two hours with the child. The Father stated that “he found the whole concept extremely difficult.” The child showed in effect extremes of emotions, often cried at separation and the Father stated that the child wants to be with him.

The Father emphasised that the time he had spent in gaol for driving under the influence had been on a prison farm many years ago. He stated that he “mainly drank on the weekends” and that after he “lost [the child]” his intake of alcohol had escalated as he was feeling upset. The Father emphasised that he had now “turned myself around. Some weeks I have no alcohol at all. I don’t get drunk. I am over it.” He further stated that he was now in the process of rehabilitating himself and had applied for a bus operator’s licence. His last employment was about two years ago before an accident. At that time he had been working in the security industry. He now held a bus driver’s licence.
The Father stated that his proposals were for the child to return to live with him. He did not wish to have contact with the Mother. He shared a three bedroom residence and stated that the child would have her own bedroom. He further stated that he would like to move to L in South Australia due to the family support that he would have there and the opportunity for work. He recognised that distance would be a problem so far as the child having “contact” with the Mother, but nevertheless he suggested that she “could come every three weeks or something.”
The Father stated “I am broke. I am on the dole. I will never stop fighting for [the child].”
The former case manager, Ms F, during the course of her interview with Dr R stated that the child had “settled well into the foster carer’s home.” Some concerns were raised in relation to the Mother’s alleged inability to manage the child when the child is upset and when boundaries had to be set in relation to the Mother’s desire to buy things for the child.
With regard to the Father, it was stated that “he was much more appropriate. However there were still concerns about his alcohol consumption and lifestyle.”
The former case worker supported the idea that it was appropriate for the child that “a long term order be made in order for stability.” In that regard, it was noted that the child appeared to adjust well to the family life provided by her current carers. Concern was reiterated regarding the Father’s “poor insight” about his lifestyle and judgement about the Mother, although there had been some improvement. However, the former case worker considered “there was still a lot of concern about whether he would be able to care for the child or whether he had good insight into her needs.”
The child was happy and pleased to see the Mother. They interacted well together.
The child happily separated from the Mother to be seen with the Father. The child strongly held onto the Father.
The parties informed Dr R that they could not communicate with each other.
Dr R concluded that the Father and the child have a close relationship and that there was a stronger attachment between them than with the Mother. However, he was of the view that although statements that the Father made seemed to indicate a better understanding of what was required of him to overcome his past lack of insight and poor judgement in relation to providing for the child should be have full time care of her, he considered that the Father “is still a long way short of having achieved that.” In addition, Dr R was of the view that the Father did not appear to have insight into the fact that the child may need to have some contact with the Mother. The Father was “very vitriolic towards the Mother.”
Dr R concluded that the Father had not reached the stage of being able “to provide a stable environment and care for the child as a primary residential parent.” However, Dr R was of the view that the Father was important to the child and it is also important that the child “continue to have contact with him.”
Dr R reiterated that the child does have a bond with the Mother who is “desperate to try and impress [the child] and also impress others.” He considered that the Mother does have difficulty in understanding an implicitly better approach and management to help the child settle. He also stated that there is a need for the child to have contact with the Mother.
Dr R noted that the child “is a bright engaging child’ and has formed a relationship with her foster family, although wants to be reunited with the parents together. He considered that she was not mature enough or able to comprehend all the issues and complications in relation to problems associated with the parents.
Dr R concluded that there did not appear to be major issues with regard to allegations of sexual abuse implicitly by the Father.
With regard to the Mother, Dr R stated “the major issue with regard to the child’s care by the Mother is her inappropriate management and approach to the child and her difficulty understanding the child’s needs. [The mother] appears very depressed and confused. She has stopped working directly in the sex industry and appears to handed over the management role of her business.”
Dr R finally concluded that he was of the same belief as previously that “it would be better for the child to be placed in long term care.” In that regard, he considered that “the amount of contact and degree of contact that she would have with either parent needs to be managed carefully.”
In Exhibit 4, Dr R made the following recommendations:-
“1.I recommend that the best outcome for the child is to be placed in long term out of home care in order for the child to have security and stability.
2.If the child is placed with a new family there would need to be a period of perhaps three months to establish a secure relationship with the foster family. During this time, to not destabilize the child, the contact with the Father could state at perhaps two hours per month supervised and gradually increased to fortnightly weekend unsupervised contact overnight over a period of twelve months.
3.I recommend that there be very limited contact with the Mother, perhaps every two or three months for a few hours in order to maintain some identity contact but I don’t believe she has a great deal to offer the child as she is inappropriate with her and I fear will attempt to undermine the relationship with the foster family.
4.I recommend that none of the adults denigrate any of the other adults in front of the child.
5.I recommend that none of the parents use any drugs, alcohol or use any physical form of punishment.
6.If the Father were to have been considered a possible candidate for the primary care for the child, he would have needed to demonstrate that he was able to maintain suitable employment; support the child emotionally and financially; have an appropriate residence for the child; be able to encourage some constructive contact with the Mother; not drink alcohol at all; attend appropriate child-rearing and parenting classes; follow the instructions of the child welfare agencies and comply with close monitoring by PANOC Services or equivalent.”
I will now proceed to refer to the substance of the oral evidence given by Dr R.
He agreed that it was quite clear that the child has an attachment to both of her parents and that she was seeing them weekly.
Dr R acknowledged that it was an important matter to consider the impact on the child of moving from the temporary foster carer to a long-term foster carer who is currently unknown. In addition, Dr R’s recommendation of a change to the sequence in which the child spends with the parents was also an important matter. He agreed that he had not dealt with those matters “specifically” in his last report, being Exhibit 4.
With regard to the child moving from temporary foster care to long-term care, the transition needed to be carried through “in a considered way”. That would reflect the introduction to the new family and a period of time to establish a relationship with such family to the point of the child feeling a sense of security with them. He added that the Intervenor briefs and assesses new foster parents on a regular basis and its employees are skilled at the process and that “generally, it’s well managed.” He considered that whilst he could not be certain about this particular matter, that it would be helpful for the child to have the benefit of an independent counsellor or psychologist to assist her with continuity in relation to the care of the child. In addition, consideration should be given by the Intervenor as to the periods of time that should be spent by the child with the parents during that process to ensure that “any transition is managed successfully and isn’t destabilised by perhaps unwitting interference or input from either or both of the parents.”
With regard to his recommendation of supervised periods of two hours per month that the child spends with the Father, he acknowledged that he has not been prescriptive in that regard because the process needs to be managed according to the carers involved and the manner in which management is being carried out by the Intervenor. A balancing of all the factors that are affecting the child must be carried out.
In regard to the indicia for increasing the time to be spent by the child with the Father, he considered that such indicia would include the child settling with the new foster family and developing a strong relationship with the carers. He considered that it may be expected that anxiety or disruption, so far as the child is concerned, may begin to settle and the child have an opportunity to develop secure bonds with the new family. The process involving all of those factors he considered may take place over a period such as 12 months, with possible variations.
He considered that it was a question of striking a balance by taking into account that a contributing factor to the time that the child may take to settle is anxiety that could be anticipated as being displayed by a very young child of four, given the interruption to routine in terms of periods of time and frequency of it with each parent.
Dr R acknowledged that there are potentially a number of significant changes to take into account so far as the child is concerned, having regard to his recommendations to which I have referred. They include the following:-
i)Periods of time being spent with the Father to decrease from supervised weekly to supervised two hours per month with gradual increases over the period of 12 months.
ii)The child who is four years old (at trial), having already been impacted upon by significant changes in adult care during her short lifetime and currently showing attachment to both parents.
iii)The child has lived with both parents at one period.
iv)The child has lived with her Father for another period.
v)The child has lived with her Mother for another period.
vi)The child has moved to complete strangers namely the temporary foster carers.
vii)It is reasonable to expect the child has had to adjust to all of those changes.
viii)He agrees that for a child of this child’s age, stability and routine are important.
ix)The child no longer living with the family with whom she is supposed to have settled on a temporary basis.
x)Leaving that family is another significant change and potentially disturbing for the child.
xi)The proposal to move to a family utterly unknown is a significant change.
xii)The child being too young to understand that concept.
xiii)No longer seeing the Father for the regularity and periods of time that she has been accustomed to for some time.
xiv)No longer seeing the Mother for the relevant regular periods of time that the child has become used to.
xv)There is an anxious attachment with each of the parents.
In the short term, should neither parent be found to be capable of caring for the child, then one would be considering the transition process to which he has earlier referred.
This child, aged four, with the background to which I have referred now moving to an unknown family requires reliance on departmental officers to ensure that the right family is chosen, that the child will fit in positively and her care will be well monitored by the Intervenor. Dr R considered that the Department manages those types of placements well.
With regard to his previous concern about the Mother’s lack of stable employment, given that there is currently no problem with her licensing her business, in the short term that subject is no longer an issue.
The Mother’s commitment to her work has now completely changed.
In addition, concerns regarding stable accommodation have been laid to rest in view of her evidence that she has sold her home which had been subject to a high mortgage and now leases a two bedroom home unit, sub-letting a room to a student for extra income.
So far as her social network is concerned, that does not appear to be a significant problem any longer.
There remains a concern regarding the Mother’s capacity to meet the child’s needs in terms of insight, interpersonal interactions and understanding. He is now informed that the Mother has completed two parenting programs which shows a positive step and that she is attempting to improve.
With regard to the Father, Dr R has “some concerns about his openness about the degree of alcohol consumption.”
With regard to the Mother providing the Father with an opportunity not to consume alcohol, that was a matter out of her control.
So far as the ability of the parents to communicate with each other, it can fluctuate.
The Mother did tell him that the report by a case worker of the Mother having shown the child a photograph of the donor Mother was “absolutely incorrect.” By consent the case worker gave evidence by telelink as she was residing in the United Kingdom. Her evidence in part was that the Mother had made comments to the child that she in effect was born of an IVF procedure and told her or showed her a photograph of the donor. During the course of cross-examination the case worker acknowledged that the mother spoke to the child in another language and that the case worker could not understand it. In addition, the Mother’s language implicitly in English was broken. The Mother had denied the allegations. Having regard to the case worker’s lack of understanding of Mandarin, some difficulty in the Mother’s use of English and the Mother’s firm denial, I am not satisfied on the balance of probabilities that the allegation in the case worker report should be accepted.
In summary, Dr R stated that should the Court be satisfied that the Mother is no longer involved with the sex industry as previously; that she leased her licence for that business and it is no longer prioritised over the child and what he had then described as “the major concern” about the Mother no longer persists.
The current major concern was the Mother’s capacity to appreciate the child’s needs. Dr R recognised that this is something that can be improved and whether she can achieve a satisfactory ability to understand those needs and respond to them has yet to be determined. He acknowledged that the Mother has shown determination to improve matters in that regard.
Dr R reiterated that there was a loving commitment between the Mother and child and a strong relationship between the Father and the child.
He also expressed the view that should the Mother engage in a realistic way with agencies to improve her parenting capacity and that was proven, then his previous views about her capacity to meet the child’s needs would of course also change.
Dr R agreed that “it comes down to” the balancing of the matters in relation to the parents, as against moving to the unknown in terms of faith to be placed in the Intervenor to be able to find the appropriate foster family on a long term basis without any opportunity for Dr R, quite apart from the Court, to assess all of the relevant matters in terms of whether an unknown adult or adults can provide proper care for the child.
Dr R restated that whilst the cultural aspect in terms of who might care for the child was important, the level of care is the most important matter.
With regard to the sexual abuse allegation against the Father, there was a range of possibilities in terms of interpretation of the Mother’s actions. One was that if she was really concerned that such abuse was occurring and she allowed the child to remain in that situation and did not take action to protect the child until the next day, then that was an inappropriate course for her to follow. Another possibility was that the Mother may not have been sure and having considered it further that night left for the police station in the early hours of the next day with the child.
So far as Dr R was concerned, there was a lack of an unacceptable risk of inappropriate conduct by the Father with the child.
Dr R stated that from his reading of relevant documents, there is a suggestion that the Father has significant changes in his liver from alcohol abuse, correlating with a considerable amount of alcohol use. He considered it to be a matter of concern that the Father did not have the script filled for a drug that decreases the inclination or the desire to consume alcohol, given his history of alcohol use and abuse which has affected his judgement and manner of managing situations. In particular, it is a concern that he continues to take alcohol from time to time despite knowing that alcohol has been regarded “as a major complicating factor to his ability to care for the child.”
Dr R stated that “traditionally, individuals with alcohol abuse problems will underestimate their alcohol use quite considerably.” He considered that the Father does in fact suffer from “an alcohol-related problem”.
Dr R’s view was that the restriction on non-consumption of alcohol by the Father should not only be during such periods that the child is in his care, but also at least 24 hours prior thereto.
Dr R stated that he was aware of the recommendation that the Intervenor has made in terms of contact frequency for two to four year olds where there is going to be a permanent placement in foster care so far as periods spent with parents. That recommendation refers to a frequency of two to six times per year. He understands that the purpose behind such a recommendation is that the child needs to form a strong attachment to the foster family which should not be undermined by a contest between the biological parent and the foster parent which may then affect the child. The clear priority is the child’s attachment to the foster family.
Dr R also voiced his agreement with the proposition that government or the departmental policies of the nature to which I have referred “are very blunt instruments trying to cover the lowest common denominator.” Consequently, his recommendations vary from the Intervenor’s policy statement.
Dr R also gave his opinion that as the child has been in alternative care now for close to a year, such an uncertain situation should not continue much longer and “it would be better for the child to be placed into a certain predictable placement.” He considered it unlikely that the parents could engage in cooperative parenting. He supported each of them having the benefit of having individual counselling from a counsellor or psychologist who understands the issues.
In response to questions put to him by the Father, Dr R stated it would be “very destructive” for the child should she be placed in permanent foster care and that placement broke down and the child then had to be moved to another foster carer.
With regard to the restriction upon the child not seeing the Father for a lengthier period than that with which she had been accustomed, he considered it important that the child have the opportunity to become securely attached to the foster carer. He also stated that whilst it was important for the child to maintain a link with her parents, it is a process that needs to be managed in a sensitive way by the Intervenor.
Affidavit evidence was given by Ms D and Ms A, both being managers of case workers for the Intervenor as well as Ms F, a case worker with the Intervenor. Ms D and Ms F at the time of swearing their affidavits were each employed in the Joint Investigative Response Team (“JIRT”). Ms D swore her affidavit on 4 July 2008 whilst the affidavits of Ms F were sworn on 1 August 2008 and 31 March 2009 respectively. Ms A swore her affidavit on 18 March 2009.

The evidence of Ms D is that she is the case worker responsible for the JIRT investigation in relation to the child. Ms D states that on 2 July 2008, having regard to concerns that the child was in serious risk of harm, the Intervenor assumed care of the child from the Father pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The child was then placed with foster carers in out of home care placement and continues to live with them.
Ms D provided evidence of investigations carried out by JIRT and the family’s history of being known to the Intervenor since 29 October 2004. It was on that basis that the Intervenor successfully sought leave to intervene in the proceedings on 8 July 2008.
During her oral evidence Ms D stated that her relevant involvement in relation to the child was for a couple of months towards the end of 2008.
So far as the Intervenor deciding to become involved in the care of the child, an aspect to take into account is the issue of exposure of the child to domestic violence and the capacity of parents for such violence. In that regard an adverse view was taken by the Intervenor so far as the Mother and Father were concerned.
In her affidavit the reference to knife usage by the Mother was in relation to the incident which occurred in January 2008.
Ms D was aware that counselling had been requested for the child given past behaviour of the child approaching strange men, but Ms D was unaware if such counselling had actually taken place. Ms D had not reviewed the Departmental file.
In her first affidavit, Ms F referred to similar history in the matter as provided by Ms D. Ms F states that in relation to the child’s placement with foster carers, that has continued “and that the placement is going well.”
Ms F proceeded to give particulars of the time spent with the Mother being fortnightly periods of time during the period from 9 to 30 July 2008 on a supervised basis. The supervisor’s reports were annexed to Ms F’s affidavit. As at the date of that affidavit, Ms F notes that there had not been contact between the child and the Father since the child was assumed into foster care.
In her second and more recent affidavit, Ms F states that the child remains in the relevant out-of-home care placement and which continues to be proceeding well, supervised by the Life Without Barriers agency which is contracted by the Intervenor to provide a placement for the child and “limited case management”. Ms F annexed a copy of a placement report received from that agency on 8 January 2009 which covers the period from 1 to 30 November 2008. There does not appear to be anything untoward referred to in that report. Indeed, it was not the subject of cross-examination.
Ms F proceeded to refer to communications with the Father’s sister, Mrs C, who stated that she was withdrawing her previous application as a carer for the child.
Ms F stated that supervised periods of time spent by the Mother with the child has continued and that weekly supervised periods of time with the Father had resumed since 6 August 2008. In her affidavit, Ms A expands upon her current position which is the manager of the Foster Care Recruitment Assessment and Training Team for within the metro-central region. Responsibilities also include maintaining a database of authorised and available long-term foster carers which provides assistance in matching them with children and young people in need of care. For the purpose of assessing carer applicants and members of their household, defined criteria are applied as explained in her affidavit. A training program is also conducted, followed by other procedures which include assessment interviews.
Ms F gave oral evidence. During the course of that evidence she stated that the temporary carers for the child were not Chinese, but rather a family of Samoan background from New Zealand. No one spoke to the child in Mandarin. The children in that family group, apart from the child the subject of these proceedings, included two teenage boys aged 13 and 15 years and a boy about three years of age. Ms F’s understanding was that the younger child appeared to have a good relationship with the child. The agency Life Without Barriers provides a monthly report, although that does not include an individual assessment of the child, unless specific concerns were raised. Ms F was of the view that the child’s concerning behaviour of approaching strange and older men had ceased. Ms F was unaware of any specific allegation of the child being hit by the youngest child in the family group or that the child had been showing scratches on her face.
Ms F confirmed that the Department does not take steps to seek a permanent foster carer until a final Order has been made.
Ms F also stated that she was aware that the child had made comments that she wanted to live with both of her parents. Ms F was unaware of the child calling her carer “Mum”.
In answer to questions put by the Father, Ms F said that although she had attended the foster carer’s home and had seen the child’s bedroom, she was unaware of the number of bedrooms in the house. Ms F stated that it could not be guaranteed that the child would have the same long-term carer for the future.
Ms A explained that for the purpose of identifying a placement for the child, she ultimately selected a family of Chinese heritage. The general practice is to refrain from contacting foster carers regarding a placement until a final order is made. The family to whom I have referred was approached and responded that they were interested in caring for the child. During the course of her oral evidence, Ms A explained that the family to whom I have referred was no longer available.
The following emerged during the course of the oral evidence given by Ms A.
The process of interviewing, assessing and approving a long-term carer family does not commence until there has been what she described as “a long term order” which is synonymous with “a final order”. The rationale for that approach is that practical considerations militate against the process starting earlier.
As part of the assessment process, the Intervenor ensures that the family approved are “culturally competent to be able to facilitate cultural maintenance of the child.” In relation to the child the subject of these proceedings that has obvious importance. That factor does not mean that the family in question must have the same cultural background as the child but rather that it has the capacity and implicitly willingness to ensure that the child’s cultural background is maintained. In that regard, Ms A has a family in mind, although the process for possible assessment and approval has not yet begun for the reasons previously given. The particular family should also indicate their preparedness to do certain things for the purpose of maintaining the culture such as language, food and lifestyle.
The relevant family must also be assessed having regard to the needs of the child, including background of matters that have affected the child such as family violence.
Ms A agreed that the child moving from one family to the other is potentially very damaging and traumatic for the child.
It is expected that there will be a period of about four to six weeks for the purpose of the process of preliminary investigations and selection. That process was then described in detail by Ms A. The assessment by the Intervenor is a joint decision between two particular case workers.
With regard to a child having a strong reaction against wanting to move from the temporary carer to the proposed long term carer family, Ms A’s evidence was that it is recognised that there will be a period of “grief and loss” and the particular proposed carers have training in that regard. The movement of the child to the long term carer will continue nonetheless. Ms A’s experience is that ultimately the child does settle, although there have been cases where “we see breakdowns around 11 and 12 years of age when children are adolescents and they virtually – and if I can say – they vote with their feet because they are not happy.”
During the first year of the new placement, there are in effect two carer support workers who are allocated, namely one case worker for the child and the other to support the family. In the first three months, it is expected that there would be two or three visits by such case workers. An automatic review of the child’s placement takes place within 12 months of a final Order being made.
With regard to contact with parents during that first 12 month period, the policy is that the new carer family should be prepared for such contact taking place between two to six times a year. The parents are able to contact the child’s case worker so far as any concerns or questions that they may have regarding the child’s care.
As can be seen by my summary and review of the written and oral evidence of Dr R and case workers, there have been serious doubts expressed in relation to the Mother’s capacity to provide for the emotional needs of the child. Dr R in particular has recorded in his reports, major concerns in that regard centering upon the Mother’s past involvement in the sex industry, lack of availability to care for the child and serious doubts in relation to her parenting capacity for the reasons expressed. At the same time, Dr R also concluded that the Mother did not have a major mental health issue and as stated in Exhibit 4, he was informed by a supervising case worker of very positive views expressed in relation to the Mother’s interaction with the child and that the Mother is a caring parent. Concerns were expressed so far as the Mother not setting appropriate boundaries for the child.
During the course of his oral evidence, Dr R was much more positive so far as the Mother’s capacity to provide for the child’s emotional needs are concerned. I do accept the evidence of the Mother, in the absence of any evidence of substance to the contrary, that she is no longer directly involved in the sex industry and that for a considerable period of time she has leased her licence for that business. Consequently, on the basis of such a finding, Dr R was of the view that the Mother’s historic involvement in the sex industry no longer had priority over the care of the child and as a consequence “the major concern” that he had in relation to the Mother no longer was relevant. With regard to the Mother’s capacity to have the appropriate insight in relation to the child’s needs, I accept the evidence of the Mother that there has been significant improvement in that regard due to a combination of the parenting courses that she has satisfactorily completed and her commitment to her relationship with the child as observed by the supervising care worker. In that regard the Mother has shown herself to be “a loving, generous person who interacted well with the child” who responded positively to the Mother and enjoyed the time with her.
As was made clear in submissions on the Mother’s behalf, the Mother is open to continuing to receive professional assistance to improve her parenting capacity.
Consequently, I find that the positive planks of the matters referred to as features of Dr R’s oral evidence in paragraphs [120] to [123] hereof have been established to my satisfaction. Accordingly, I find that the Mother does have a capacity to provide for the emotional needs of the child, qualified to the extent that she will be assisted by ongoing professional guidance.
The Mother gave evidence in relation to her proposals for education of the child at a local school. The Father acknowledged that such evidence was appropriate so far as the child’s future is concerned. Indeed, there is no criticism of it. I find that the Mother does have the appropriate capacity to provide for the intellectual need of the child in concert with her qualified capacity to provide for the child’s emotional needs.
I have made findings in relation to the Father’s capacity to provide for the physical needs of the child in terms of accommodation in Sydney and potential accommodation in L in South Australia as well as his income earning ability in each of those places. Accordingly, there is no need to reiterate those findings. The reports of Dr R which are in evidence and to which I have referred by distilling the substance of them, demonstrate so far as he is concerned, a lack of satisfaction as to the level of alcohol consumed by the Father and his commitment to follow medical advice that he received to cease the consumption of alcohol altogether.
In addition, Dr R and relevant case workers have also expressed concerns regarding the Father’s continuing lifestyle, implicitly referring to time spent at hotels. Exhibit 4 records the views of the case worker that the Father does not appear to have connected well emotionally with the child and food brought by him for her was inferentially not entirely appropriate. That does not mean that the Father lacks the relationship with the child, the subject of my earlier findings or, his love for her.
Dr R’s oral evidence repeated the concerns that he had regarding the Father’s openness in relation to “the degree of alcohol consumption” that he has. A qualifying factor, so far as the Father’s capacity to provide for the child’s emotional needs according to Dr R, was the Father’s continued consumption of alcohol from time to time despite his knowledge that alcohol has been “a major complicating factor” so far as his ability to care for the child is concerned.
I accept the evidence of Dr R and the relevant case workers that on the balance of probabilities the Father may not as yet have his level of alcohol consumption under complete control and his resistance to following medical advice for the purpose of avoiding such consumption, particularly having regard to the Father’s unfortunate history in that respect, represents a limitation upon his capacity to provide for the emotional needs of the child as he may not always be in a state to do so. In making that finding, I recognise and accept the Father’s evidence that he has made significant strides in overcoming his past propensity to be intoxicated to the extent of being drunk and otherwise out of control.

Family violence and any Family Violence Orders

The Father and Mother have had a volatile relationship. It has been marked by allegations of domestic violence made by the Mother as well as counter-allegations made by the Father. There have been Apprehended Violence Orders made in the Local Court. In addition, there was an incident when the Mother brandished a knife following an altercation between the Father and Mother. I will now set out the substance of the evidence in regard to those matters and my findings.
The Mother alleges that in the year 2000 the Father had become intoxicated with liquor, they argued in relation to his gambling and the Father physically assaulted her. Subsequent proceedings did not result in the Father being found guilty. The Mother and Father then separated. They resumed cohabitation in the same year which continued until late 2002.
Following a further separation between the Mother and Father, they resumed cohabitation again in Sydney in 2003. The Mother claims that shortly thereafter there were a number of occasions prior to the birth of the child when the Father was affected by intoxicating liquor and physically assaulted her. Subsequent proceedings instituted by the police resulted in Apprehended Violence Orders being made. Indeed, following a further application for an Apprehended Domestic Violence Order in about July 2005, made after the Father assaulted the Mother, they separated and the Father commenced to live elsewhere. At the request of the Father, the Mother did not offer evidence against him and the proceedings were withdrawn.
Due to the imprecise drafting of the affidavit of the Mother sworn 6 February 2008, it is not clear as to when it was that case workers with the Intervenor became involved out of concern with the welfare of the child.
On 7 January 2008, mistakenly referred to as “2000” in the Mother’s previously mentioned affidavit, a further altercation took place between the Father and her. He is alleged to have prevented the Mother from entering the child’s bedroom. The Mother claims that he was drunk and assaulted her. The Mother telephoned the police. The Mother waited outside of her home for the police to arrive. Upon the police arriving and following a conversation they had with the Father, they brought the child to the Mother and the Father left the home. He returned the next morning as a locksmith was in the process of changing the locks at the request of the Mother. The police arrived again. They allegedly claimed that they could not ask the Father to move out of the home. The Father was holding the child. The Mother became upset and felt that she was being forced to leave her own home and not allowed to take the child with her. The Mother picked up a knife from the kitchen, walked to the front door where the police were standing and threatened to harm herself. The police subdued her and she was taken to Hospital and ultimately discharged following a medical examination. The Mother returned to the home.
The Mother was then contacted by responsible employees of the Intervenor. The police arrived at the home again and served the Mother with a summons in relation to apprehended violence proceedings. The next day the Mother had a further meeting with a case worker of the Intervenor.
On 16 January 2008, at the Local Court, the Mother, although legally represented, consented to Apprehended Violence Orders being made which apparently had the effect of her being required to leave the home and as a consequence implicitly leaving the child in the care of the Father. The Mother claimed that she had only a brief conversation with her solicitor whom she had never met before and an interpreter had suggested that she consent to the orders being sought.
The Mother appealed from the last mentioned orders. Her appeal was heard in the District Court of New South Wales in February 2008. The appeal was allowed and the orders made in the Local Court set aside.
The affidavit of the Mother sworn 25 July 2008 provides further evidence in relation to subsequent event.
Following the Mother’s return to the home to live during the evening of 12 June 2008, she remained living there, cared for the child and also went to work and on the way took the child to the child care centre. The Mother collected the child late in the afternoon. The Mother cared for the child in all respects by herself. The Father also remained living in the home but apparently was out during the day before returning at about 7.00 or 7.30pm.
The Mother alleges that on 20 June 2008, the Father abused and threatened her. The Father called the police who then attended the home and the Mother accompanied them to E Police Station. The Mother returned home.
On 21 June 2008, the Mother alleges that the Father assaulted her. The Mother left the home and again attended at E Police Station. To the amazement of the Mother she was arrested rather than the Father. The Mother was taken to Hospital where she was in-patient overnight. The Mother returned to the home. The Father remained living there.
The Mother states that upon receiving legal advice, she sought alternative accommodation. Whilst doing so, she left the child in the care of the Father. The Mother further contends that on the evening of 27 June 2008 she entered the Father’s room and saw the child lying uncovered on the bed and her underpants were around her knees. The Mother claims that she saw the Father’s head “in about the same area”. The child called out to her and the Mother said to the Father “what are you doing?” The Mother states that the Father then shouted at her and said “its fine, we’re just playing. Get out.” The Mother also alleges that the Father then said to the child in a loud voice “if you move, I will smack your bum.” The Mother left the room. The Mother states that “I was very frightened for both myself and for [the child]. I was shocked and I did not know what to do. I thought that if I went again to the police that night I would again be arrested as I had on other occasions that I had gone to the police by myself. I thought it would be for the best to stay in the house that night so that I could be there for [the child] and when she woke up and go to the police the next morning.”

The Mother’s affidavit evidence further states that the next morning she drove with the child to the police station to enable the child to tell the police what would happen as she did not believe that the police would accept the Mother’s statements.
During the course of cross-examination, the Mother’s evidence in relation to the incident on 8 January 2008 was consistent with her affidavit evidence. The Mother further stated that at the time when the Mother threatened to harm herself with a knife and the police subdued her, the child was inside the home although calling out to her and did not see those particular events.
The Mother also provided consistent evidence in relation to the Father’s violent conduct towards her in the home on 21 June 2008 and her subsequent attendance with the child at the police station. It is clear from her further evidence that both she and the Father behaved in an appalling fashion to each other on that occasion probably in the presence or hearing of the child.
The Mother was further cross examined in relation to the allegations of child sexual abuse perpetrated by the Father on 27 June 2008. During the course of that evidence, the Mother stated that she noticed that the Father’s head was on the child’s thigh and that he shouted at her to leave. The Mother said she left the room as she was apprehensive that the Father was about to hit her. Her evidence then became inconsistent. On the one hand the Mother’s evidence was that she thought the Father had performed oral sex on the child and then upon being taken to Exhibit 2, she stated that she was “not sure” about what the Father had done and indeed had been sure then she “would have taken the child away that night.” The Mother stated that the police station was about five minutes distance from her home and she took the child to the police station early in the morning. The Mother’s further evidence was that during that next morning, upon her asking the child what had happened in the night, the child said that the Father kissed her and the child pointed to the lower part of her body.
During the course of further cross examination by the Independent Children’s Lawyer, the Mother stated that at the time of seeing the Father with the child in his room to which previous reference has been made, the Mother “was very confused” as it was “the first time she had seen that situation”. She stated that the child subsequently said on one occasion that in relation to the Father “he kissed my pee pee”.
With regard to the Mother’s affidavit evidence of allegations of family violence, she did not resile from that evidence during cross-examination. Indeed, during the Father’s cross-examination of her, he acknowledged that the Mother had withdrawn charges on a couple of occasions.
The Mother, when pressed, denied the allegations of child sexual abuse had been concocted by her.
In his affidavit evidence, the Father denied the allegations made by the Mother in relation to his drinking habits and physical violence.
The Father further states that since about 2001, the police attended the home on many occasions following being called by the Mother. He states that apart from having consented on one occasion to an Apprehended Violence Order, no other such orders were made against him.
With regard to the incident on 8 January 2008, he suggests that the Mother threatened to call the police and have him “kicked out”. He denies there had been violence on his part. He further states that he saw the Mother take a knife from the kitchen and that at the front door he saw the Mother holding the knife and pointing it at her stomach whilst she was also holding the child with her other arm. He in effect agrees with the Mother’s evidence limited to threatening to harm herself and that the police subdued her. The Father took the child back inside. Subsequently, an Interim Apprehended Violence Order was made on 9 January 2008 and a further final Order was made in the Local Court on 16 January 2008.
The Father has strongly denied the allegations made that he has sexually abused the child. He claims that on the evening in question, the Mother entered his room and alleged that he wanted “to do sexy” with the child and that he “was a very bad man.” He claimed that at the time he was half asleep and that it had been a regular occurrence for the child to sleep with either him or the Mother. He states that he was “totally stunned that the Mother could contemplate that he had behaved in an improper way towards the child.” The Father says he was subsequently interviewed by the police in the presence of his solicitor. He states that on the following day he attended O Police Station for DNA testing. Implicitly, no adverse testing result occurred given the absence of any evidence to the contrary.
With regard to the incident in the home on 21 June 2008 to which previous reference has been made, the substance of the Father’s evidence was that the Mother was violent towards him. He acknowledged that an Interim Apprehended Violence Order was made in the Local Court on 16 July 2008.
During the course of his oral evidence, the Father acknowledged that Apprehended Violence Orders had been made against him for the protection of the Mother on 5 October 2004 and 11 July 2005.
With regard to the disturbing allegations of child abuse arising out of the Mother’s evidence in relation to events at the home on 27 June 2008, he reiterated that such allegations were “a total fabrication”. He stated that he did not kiss the child as alleged, nor had he been drinking. He further stated that the child was wearing pyjamas. He acknowledged that the child sometimes calls her genital area “my pee pee”. He denied having kissed the child on the thigh and his mouth did not touch the child’s genitals whether she was clothed or unclothed. He alleged that the child had been coached by the Mother to make the allegation earlier referred to.
With regard to substantial factual issues in relation to whether or not the Father sexually abused the child, or if not, whether there is an unacceptable risk of such abuse being perpetrated by the Father, the High Court has held in M v M that in reference to tests for defining risk:-
“The courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed that a court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.”[5]
[5] (1988) FLC 91-979 at 77,081.
The allegation made by the Mother of child sexual abuse is a very serious one from the point of view of the child, as well as the Father and Mother and of course the other parties in these proceedings. The civil standard of proof applies, namely the Court being required to be satisfied on the balance of probabilities that the facts alleged have been established. However, given the gravity of the allegations, I am required to be cautious in being satisfied that the civil standard of proof has been established in view of s.140(2)(a)-(c) of the Evidence Act 1996 (Cth).[6]
[6] Johnson & Page (2007) FLC 93-344 at 81,891.
I am not satisfied that the Father did sexually abuse the child. My reasons for reaching that conclusion are as follows.
The evidence of the Mother was far from firm and she herself was “confused”, as she quite frankly acknowledged. Parts of her evidence as to her observations of the Father with the child certainly raise alarming features. In addition, the disclosure that the child made to the police the following day is very concerning indeed. However, against those matters are the Mother’s actions in leaving the child in the room, not calling the police or attending upon them until the next morning and her own state of uncertainty and confusion that evening subsequent to leaving the Father’s room. It must be remembered that the Mother is a worldly person with an alertness in relation to sexual matters, which I infer from her own many years experience in working in and then owning and operating businesses in the sex industry. At the same time, I have no doubt that the Mother has always loved the child and would not deliberately expose the child to harm. Whilst the Mother did attend with the child upon the police the next morning, that delay is hardly consistent with the reaction that one might have expected from a concerned, loving and responsible parent.
In addition, the investigation by the police unit JIRT was inconclusive. I have also accepted the evidence of Dr R in relation to this matter.
I have also not lost sight of the fact that in accordance with Exhibit 15, the Mother seeks orders that she and the Father have equal shared parental responsibility for the child and that he spend periods of time with the child. No order was sought by her that such periods be supervised.
Last but far from least, the Father has been vehement in his denials throughout and he impressed me as a truthful witness in relation to this particular serious allegation.
I am also not satisfied that there is an unacceptable risk of the Father sexually abusing or indeed otherwise abusing the child. My reasons for reaching that conclusion are set out in the following paragraphs.
In relation to this matter, the civil standard of proof also applies to which I have made earlier reference and which I do not now need to reiterate. I am also required to be cautious in being satisfied that on the balance of probabilities there is an unacceptable risk.[7]
[7] Evidence Act 1995 (Cth), s.140(2)(a)-(c); Johnson & Page, ibid.
I have carefully reviewed the evidence as earlier summarised by me. The Father’s care of the child, at times by himself for some months, had never previously given rise to any suggestion whatsoever that he has or might have abused the child in any way. Whilst there have been historically concerns regarding his capacity to provide for the needs of the child so far as his parenting skills are concerned, that has been a reflection of the impact upon him of the volatile relationship that he has had with the Mother and at times his level of intoxication. Notwithstanding those matters, it is clear to me that the Father loves the child and has always done so, notwithstanding his limitations in his parenting of her that have occurred on occasion.
In addition, I have taken into account and given weight to the findings that I have made, referred to in paragraphs [199] to [202] inclusive. Accordingly, the “test” laid down by the High Court[8] has not been satisfied.
[8] M v M, supra.
An allegation was made by the Father that the Mother probably “coached” the child for the purpose of the disclosure that she made to the police. I am also not satisfied that such an allegation has been made out. Indeed, the Mother was hardly pressed in relation to that matter, if at all, during cross examination. There is no other evidence from which I can safely infer that such unacceptable influence was brought to bear by the Mother upon the child.
I am satisfied that the Father has been violent to the Mother in accordance with her allegations. The Mother was not shaken in that regard in cross-examination. The Father acknowledged that there have been Apprehended Violence Orders made against him and that at least on one occasion, if not more, the Mother withdrew her evidence in the Local Court, either at the Father’s request or, in order to assist in the improvement of their relationship. In addition, the Father has undoubtedly has had a problem in relation to alcohol intoxication over several years. I accept the Mother’s allegations of the state of the Father’s intoxication which appeared to precipitate or accentuate his violent and abusive behaviour towards her at different times.
However, the Mother has also engaged in violent and abusive behaviour to the Father in the circumstances to which earlier reference has been made by me.
The Mother has also had disturbed emotional behaviour at times which has culminated in what has been referred to as “the knife incident” in January 2008 notwithstanding that holding the knife was in the circumstance of possible self-harm, rather than a threat to the Father or indeed the child. The Mother was required to be subdued by the police and ultimately hospitalised overnight.

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.

Each of the Mother and Father expressed in different ways their willingness to facilitate and encourage a continuing relationship between the child and the other parent. The orders sought by them make that clear.
Their communication has been poor in relation to the child, if not non-existent, prior to the child being placed under the care of the Intervenor. Their relationship has also been marked by substantial conflict. However, each made positive remarks during the course of the evidence which leads me to find that there is some sign of some positive and constructive communication between them in the future, particularly having regard to the evidence of the Father.

Likely effect of any changes in the child’s circumstances including separation from either of her parents or other person with whom she has been living

There are a number of likely effects of changes in the child’s circumstances. The child is currently living with temporary carers pursuant to past orders that have been made and the overall supervision of the Intervenor earlier referred to.
On the application of the Father, a likely effect may be that the child would live with him either in L in South Australia or in Sydney. In either case, the child’s relationship with him is likely to improve due to his obvious love for the child. On the other hand, significant changes for the child would result. They include moving interstate into new accommodation and with family relatives of the Father who the child has not met. The transition would also be marked with some uncertainty as to not only accommodation, but also employment which the Father may be able to gain as only preliminary enquiries have been made by him so far. A further effect would be that the child would have even less contact with the Mother unless she was able to also move interstate and find suitable accommodation at L. The Mother indicated that she would give serious consideration to such changes. The success of implementation of those changes so far as each of the Father and Mother are concerned are uncertain.
The alternative put forward by the Father, namely that the child live with him in Sydney, would mean her sharing accommodation with not only the Father but also the other occupant who the child has not met. In those circumstances, it is not possible to assess how positive the relationship would be with that other occupant, especially as there is an absence of any evidence from that person. The Father is still at the preliminary stage of seeking employment so that he can have sufficient income to provide substantial support for the child. A benefit would be that regular and frequent periods of time which the child might spend with the Mother could be facilitated, given that both parents live in Sydney.
In the event of the child living with the Mother, she can provide stable and suitable accommodation. The Mother has a student boarder who the child is also not acquainted with and there is a similar question of uncertainty so far as the relationship between the child and the boarder is concerned.
However, the Mother now has a stable personal situation both in relation to accommodation and income as well as being free from the unsuitable atmosphere for a child of the Mother being directly engaged in the operation of her business. The Mother’s income is sufficient to enable her to provide substantial financial support for the child. The Mother has a history of consistently doing that when the child lived with her and/or the Father and indeed was for considerable time the major, if not the sole income earner, in the family. Unlike the Father, the Mother does not have any health or lifestyle issue any longer which may cause concern. There is qualification to the Father’s capacity to meet the child’s needs having regard to his history of alcohol consumption and his lack of commitment to implement the full extent of the medical advice that he has received.
The findings that I have made in relation to this topic are against the certainty of there being changes in the child’s circumstances having regard to the child currently living with temporary foster carers. Should the Application of the Intervenor be successful then of course the child will move into the care of long-term carers who she has never met, cannot be identified, let alone assessed in terms of parenting ability for the purpose of evidence in these proceedings and the considerations which I must apply in accordance with s 60CC(2) and (3).

The practical difficulty and expense of a child spending time and communicating with a parent

There is obvious practical difficulty and expense which will arise in the event of the Father being successful in his Application for orders which permit the child to live with him on a full-time basis in L in South Australia. On the basis of the Mother continuing to reside in Sydney and orders being made that permit her to spend time with the child in L, then subject to her moving to L to live there permanently or indefinitely, there could be considerable practical difficulties and expense involved. The Mother’s current financial resources are significantly limited, although her situation in that regard is better than the Father.

Maturity, sex, lifestyle and background of the child and the child’s parents

The child has the maturity commensurate with her age and has been progressing quite well in the care of the temporary carers. The child has shown herself to be emotionally needy, especially in terms of attachment with each of the Mother and Father the subject of the evidence given by Dr R and to some extent of one or more of the case workers.
The child has a mixed background represented by the Father’s Anglo-Saxon background and the Chinese background and culture of the Mother. It is not suggested that it would be anything other than beneficial for the child to have the full benefit of both cultures. Obviously, the Chinese culture would be more prominent should the child live with the Mother.

The parental attitude of each of the parents

Subject to the findings that I have made in relation to family violence and the capacity of each of the parties to provide for all of the needs of the child, they have an appropriate parental attitude in terms of now being child-focused and having a genuine love and concern for the child.

An order least likely to lead to the institution of further proceedings in relation to the child

Consideration of this particular matter is fraught with such difficulties that I am not prepared to make a finding as to the preference for one parenting order compared to another. Those difficulties range from periods of time that the Father or Mother may be permitted to care for the child, the frequency of such periods, whether such periods be supervised, to the effect of the unknown parenting skills of the as yet to be identified long-term carers postulated by the Intervenor. I can not quantify the degree of likelihood of further proceedings when considering one of those scenarios compared to others.

Conclusion

I have determined that the presumption of equal shared parental responsibility of the child in favour of the Mother and Father, to which earlier reference has been made, has been rebutted.
Section 61DA(2) does not contain a discretion to rebut the presumption once it has been established that the Court has “reasonable grounds to believe that a parent of the child has engaged in” family violence. I have made findings of fact which establish that family violence as defined in s 4(1) has occurred. Consequently, it follows that the presumption of equal shared parental responsibility has been rebutted. Accordingly, there is no need to consider the ground of “best interests of the child” referred to in s 61DA(4).

However, notwithstanding that the presumption of equal shared parental responsibility has been rebutted, it is still open to me to make an order for equal shared parental responsibility in favour of the Mother and Father or, alternatively, sole parental responsibility in favour of the Intervenor. Neither the Mother nor the Father sought an order for sole parental responsibility. These considerations arise because an order for parental responsibility is a parenting order. Section 60CA makes it clear that a parenting order may only be made if it in the best interests of the child to do so.
This process may seem a little convoluted to a non-lawyer. However, the provisions of the Act make it necessary for me to state their effect in that fashion. I accept that pursuant to Pt.VII of the Act I do have power to make the full range of parenting orders in favour of the Intervenor. Indeed no submission to the contrary was made.
I have accepted the submissions of the Intervenor supported by the Independent Children’s Lawyer in relation to this issue. The Mother and Father have a history of conflict not only in relation to themselves personally, but in circumstances which have created a volatile atmosphere for the child, periods of instability for her and poor communication which do not auger well for future cooperative parenting.
In contrast, since the child has been under the care of the Intervenor in terms of the Intervenor having sole parental responsibility on an interim basis, stability and routine have been established for the child in the care of the temporary foster carers, assessed or monitored from time to time by the Intervenor and on the evidence that I have accepted the child has progressed satisfactorily. I am not persuaded that the positive findings that I have made in relation to the Mother and Father so far as the nature of their respective relationship with the child and capacity to provide for the child’s needs are of such a degree that notwithstanding their shortcomings otherwise detailed in this judgment, it is in the best interests of the child that they have equal parental responsibility for her for the foreseeable future. I am satisfied that the Intervenor will continue to exercise parental responsibility in a manner that is in the best interests of the child as has generally occurred since the relevant interim orders were made.
The Intervenor’s sole parental responsibility for the child especially in relation to major long-term issues will ensure that in carrying out that responsibility, the Intervenor provides regular monitoring and assessment of each of the Mother and Father in relation to all aspects of the care that each of them provide for the child having regard to the other parenting orders that I will make. Such assessment, monitoring and implicitly guidance provided to each of the Mother and Father by the Intervenor can only be in the best interests of the child, given the historical difficulties and relevant findings to which I have referred.
I have also determined that it is in the best interests of the child for Orders to be made that the child lives with the Mother and have weekly unsupervised periods of time with the Father commencing during the day on a weekend and gradually moving to regular overnight periods with a suitable period during the week. My reasons are as follows, reflecting the summary of the evidence and findings of fact made by me, the weight which I attach to such findings and a balancing of those matters against the proposals of the Intervenor.
There is no issue that the child is attached to the Mother and Father. I have found that each loves the child.
The relationship of the Mother and Father has been of much focus in these proceedings due to the history of family violence and conflict between them, fuelled in part by the Father’s uncontrolled consumption of liquor. Much of the physical family violence was perpetrated by the Father in those circumstances. In addition, there were the appalling events of 21 June 2008. The behaviour of the Mother and Father to each other on that occasion was simply dreadful.
However, the Mother and Father have lived separate and apart from each other since the end of June 2008. There is no suggestion in the evidence that they are likely to resume cohabitation.
I have found that the Mother has the capacity to provide for the physical needs of the child. The Mother has established a stable home and has regular and reliable income to meet all of her living expenses and the financial support of the child. Historically, it has been the Mother in the main who has provided that financial support.
I have also made findings that the Mother does have the capacity to meet the emotional needs of the child with qualification that further parental guidance is desirable. That can be provided by the Intervenor, consistent with the sole parental responsibility Order that I will make.
The Mother had a number of significant issues that were raised in relation to her capacity having regard to the expert written evidence provided by Dr R in Exhibits 1 to 4 inclusive. However, those prior significant concerns expressed by Dr R no longer apply, subject to the qualification which he stressed of being confident in the Mother’s insight and judgement so far as the child’s needs are concerned. The Mother has made significant progress in that regard as is demonstrated by her completion of appropriate parenting courses and the positive aspects of her parenting skills which have been noted by one or other of the case workers, based on observations at the contact centre and their own particular enquiries and/or assessments to which I have earlier referred.
There is no longer concern in relation to the Mother’s past direct involvement on a daily or weekly basis in the actual operation of her licensed business in the sex industry or indeed her social lifestyle which previously had been assessed by Dr R as representing distractions from the Mother’s parenting of the child.
In addition, it was made clear that the Mother is now emotionally stable in contrast to the alarming incidents of her behaviour in January and June 2008.
The Father has sought Orders that the child live with him and that he be permitted to relocate with her to reside interstate in L. Whilst there are positive features to his proposals in that regard, particularly in relation to the family support that he and the child will have in L, as my findings have made clear, there is nonetheless significant uncertainty for the future should he be permitted to live with the child in L.
The Father has reasonably stable accommodation in Sydney. As with the Mother the child does not have any acquaintanceship, let alone relationship with the person also living in their respective Sydney homes.
The Father currently has very limited income sourced entirely on social security benefits. To his credit, he has sought to be re-employed in the workforce as a bus driver. He has potential in that regard which is not yet realised and the likelihood of that occurring is not clear to the degree that I can find that on the balance of probabilities he will be so employed.
Equally, if not more concerning, is the Father’s lifestyle habits, revolving around consumption of alcohol and attendance at hotels. He has had an alarming history in relation to high levels of consumption of alcohol. He has undoubtedly made much progress, the subject of my relevant findings. However, he does not appear to be yet fully committed to following medical advice to the ultimate by abstaining from the consumption of alcohol altogether, which I infer is desirable for him to achieve given the disturbing history to which I have referred. I have recorded the submission made by the Father that if he is granted “custody” he “will give up alcohol”. I have no doubt that the Father is sincere in that aspiration. The real question is whether that aspiration can be completely relied upon in circumstances that if the Father was truly dedicated to demonstrating that alcohol was no longer a factor in his life, he would have ceased to consume alcohol in order to show his real commitment for the purpose of these proceedings, rather than waiting to see whether “custody” of the child was granted in his favour. I have already taken into account and given weight to the expert evidence of Dr R in relation to that subject.
The Intervenor’s policy is not to identify and assess potential long-term carers for a child until such time as a final parenting Order is made. There are practical considerations that have driven that policy which I completely understand. They include applying resources to identify such a carer, creating the possibility of that carer having the child live with him or her, a potential carer then no longer being available to be considered for the care of another child, against the possibility that ultimately an order as sought by the Intervenor may not be made.
It seems to me that such a policy, whilst understandable, is really tailored by bearing in mind the proceedings that are otherwise instituted and determined in accordance with state legislation which does not have the considerations which the Act requires to be undertaken pursuant to Pt.VII. As I pointed out to counsel for the Intervenor at the commencement of the trial, I am required, in effect, to make findings of fact in relation to a range of matters which underpin both the primary and additional considerations, the subject of s 60CC, for the purpose of ultimately making a parenting order which is in the best interests of the child being the paramount consideration. Those considerations in s 60CC lie at the heart of arriving at that ultimate conclusion in accordance with s 60CA. There are obvious difficulties in following that approach which I am required to follow, when none of the relevant findings of fact can be made in respect of unknown potential long-term carers who cannot as yet even be identified.
I was at pains to emphasis during the trial that having pointed out those last-mentioned matters to counsel on more than one occasion, that should not be construed as a criticism of the Intervenor or case workers. They have a particular arduous set of responsibilities in circumstances where they, in effect, have to take over the care of someone else’s child in one way or the other, often in circumstances where a parent or parents have neglected the child. It is notorious that the Intervenor and the case workers concerned have a very stressful responsibility for a variety of reasons.
Nonetheless, in order to ultimately arrive at the conclusion of the appropriate orders to serve the best interests of the child, I have balanced the strengths and shortcomings of the Mother and Father consistent with the considerations that I am required to apply pursuant to s 60CC, as against the lack of findings that can be made in relation to any potential long-term carer for the child in accordance with the proposals and submissions made on behalf of the Intervenor.
It must be recognised that neither the Mother nor the Father is currently a parent in respect of whom there is such a dearth of relevant positive findings and considerations that there is no alternative other than to, in effect, take a chance on the child being placed with unidentified long-term carers as to do otherwise could not be in the best interests of the child.
The mother has made very important positive adjustments to her life which provide her with a capacity to meet the needs of the child in all respects to a degree which would not have been contemplated during last year, highlighted by the expert evidence of Dr R. It is true that the Mother will still need guidance and assistance to continue to improve her parenting skills and the application of them. The Intervenor will be in a position to do so, consistent with the Order for parental responsibility that the Intervenor will now assume on a final basis and as sought by the Intervenor.
So far as the Father is concerned, an important primary consideration which requires focus is “the benefit” to the child “of a meaningful relationship” with each of the Mother and Father. Whilst there are positive aspects in that regard that flow from the Father’s proposal that the child live with him in L, there are difficulties in a “benefit” also being experienced by the child of a meaningful relationship with the Mother, unless she is able to permanently move to L which she indicated she would consider. That aspect of the Mother was left on a vague and uncertain basis.
I agree with the interpretation given in another judgment that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one.”[9]
[9] Mazorski & Albright [2007] FamCA520 at [526].
As s.60CC(2)(a) makes clear, it is not enough to simply focus on “a meaningful relationship with both of the child’s parents” but there is the requirement to link it to “the benefit to the child” of such a relationship.
I am satisfied on the balance of probabilities that the child will have such a relationship with each of the Mother and Father should they live with the Mother in Sydney. In those circumstances, the Father will also continue to live in Sydney. The Independent Children’s Lawyer submitted that the past history of family violence as between the Father and Mother may reoccur. However, the relationship between the Mother and Father has substantially changed. They no longer live together. Their past personal problems have largely receded. They will have the guidance of the Intervenor. Consequently, the second primary consideration does not require particular weight to be given to it. In any event, should there be a significant change of circumstances affecting the child, then any of the parties may institute fresh proceedings if so advised.
The proposal of the Intervenor is not conducive to “the benefit of a meaningful relationship” with the Mother and Father consistent with s.60CC(2)(a). Indeed, should the proposal be acceded to, the policy of the Intervenor is that the focus then shifts to developing a secure relationship with the proposed long-term carers. That is at the expense of regular and frequent time with each of the Mother and Father as has been the case for many months and which, generally speaking, the child has benefited from and has assisted in maintaining the attachment and parent-child relationship conducive to the well-being of a small child. Instead, the policy of the Intervenor is that given the child’s age, she spend much reduced and infrequent periods of time with each of the Mother and Father for many months to come. This represents potential serious trauma for the child in coping with such a change which has to be understood in the context of all the other past and future significant changes to be taken into account so far as the child is concerned, particularised in paragraph [108] of this judgment. Whilst the appropriate case officer may ameliorate that policy having regards to the needs of the child, I did not have reliable evidence that that in fact would occur. Indeed, it might have been contemplated that such a qualification would be part and parcel of the one policy in relation to a child of this child’s age. However, that is not the case in the opinion of Dr R whose description of departmental policies of this type and his recommendations I have referred to in paragraph [132] of the judgment.
I will make orders which provide for regular assessment, monitoring and guidance to be provided by the Intervenor to each of the Mother and Father in the care of the child by each of them. As previously referred to in paragraph [232], this will be a child-focused and important residual consequence of the order for sole parental responsibility for the child being made in favour of the Intervenor. The Intervenor applies resources to carry out such work whenever a child is placed with either a temporary or long-term carer. Consequently, those experienced resources should be readily available for this particular purpose as well.
I have decided to make a rather arbitrary assessment of such periodic responsibilities on the basis that they are continued monthly for a period of six months which seems a reasonable settling-in period for the both the Mother and Father in the care that each will provide for the child. Thereafter, it will be left to the discretion of the Intervenor to continue such service as the Intervenor deems fit.
As earlier indicated I will make orders for progressively longer periods of time for the child to be spent in the unsupervised care of the Father. In that regard, I will provide for a period of six month during which the Father will have the child in his care on alternate Saturday and Sundays. That will allow the child to establish a stable routine with the Father on an unsupervised basis. During that period, the Father’s prospective employment as a bus driver or alternative employment should have been ascertained with his commitment for shiftwork, if necessary. Against that background and in the expectation that the Father’s care will proceed satisfactorily from the point of view of the child and the Father as well as the ongoing monitoring by the Intervenor, I will make an order for extended periods for the child to be in the Father’s care. That will include alternate weekends in school term and for such periods during school term holidays that the Intervenor considers appropriate after consultation with both the Mother and the Father. The Intervenor will by then be in a position to have assessed the progress in the Father’s care of the child, the suitability of the Father’s accommodation, his employment obligations and continued progress in overcoming his past history of an unacceptable level of alcohol consumption.

I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 30 October 2009

[2009] FamCA 1026

30 October 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Abuse of Process