Tusk and Scailer

FAMILY COURT OF AUSTRALIA

TUSK & SCAILER

[2010] FamCA 751

FAMILY LAW – CHILDREN – Parental Responsibility – Parties to have equal shared parental responsibility for the child
FAMILY LAW – CHILDREN – With whom a child lives and spends time – The mother and father both seek orders for the child to live with them and spend time with the other parent – Mother alleges the child at risk of harm in the father’s care – The Court finds on the evidence that the father does not constitute an unacceptable risk of sexual, physical or emotional harm to the child – Child to live with the mother and spend unsupervised time with the father each alternate weekend and half of school holidays

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth)

Bradshaw v McEwan’s Pty Ltd (1951) 217 ALR 1
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Jackson v Lithgow City Council [2008] NSWCA 312
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
M v B [2001] FamCA 894
MRR v GR (2010) 42 Fam LR 531
Palmer v Dolman [2005] NSWCA 361
Re David (1997) 22 Fam LR 489

APPLICANT:

Ms Tusk

RESPONDENT:

Mr Scailer

INDEPENDENT CHILDREN’S LAWYER:

Ms Adam, Adams & Associates

FILE NUMBER:

NCC

1030

2007

DATE DELIVERED:

27 August 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

21 & 22 July 2010 and
20 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rees SC

SOLICITOR FOR THE APPLICANT:

Ms Carty, Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hollins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Adams, Adams & Associates

Orders

All former parenting orders relating to the child S, born on … February 2005 (“the child”), are discharged.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
4.1During New South Wales public school terms, each alternate weekend from 5.30 pm Friday until 5.30 pm Sunday, commencing on the first Friday in each school term.
4.2During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
4.3During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Order 4.3 hereof is suspended from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
For the purposes of implementation of Orders 4.2 and 4.3 hereof, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day between those first and last days.
For the purposes of implementing the time spent by the child with the father, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at R, NSW, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the McDonalds Service Centre Restaurant at T, NSW.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
8.1The father each Wednesday night that the child is living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother for that purpose, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.
8.2The mother each Wednesday night that the child is spending time with the father pursuant to Orders 4.2 and 4.3, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father for that purpose, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.
8.3The parent with whom the child is not then staying, on the child’s birthdays, between 6.00pm and 6.30pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
The parties are restrained from causing or permitting the child to be known by any surname other than “Tusk”.
The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the father’s paternity of the child, and that a fresh birth certificate issues for the child disclosing the father’s paternity of the child.
Pursuant to s 65LA of the Family Law Act, the parties shall forthwith enrol themselves to commence, and thereafter participate in and complete the post-separation parenting program known as “Keeping in Contact” conducted by Unifam Counselling and Mediation.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications, excluding the father’s Application in a Case filed on 19 June 2009, are dismissed.

Notation

A.For avoidance of doubt, the first occasion upon which the child will spend time with the father pursuant to Order 4.1 will commence at 5.30 pm on Friday 3 September 2010.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1030 of 2007

MS TUSK

Applicant

And

MR SCAILER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The child who is the subject of these proceedings has the misfortune of being embroiled in continuous bickering between her parents, which began before she was born over 5 years ago.
Litigation was commenced between the parties in 2005 and, although there have been some brief periods of respite, the controversy has continued largely unabated ever since. It has caused all of their lives to be unnecessarily traumatic.
The current proceedings were commenced by the mother in November 2009 as a consequence of her allegation against the father that he sexually assaulted the child. As the proceedings have progressed, the mother’s allegations against the father have broadened to encompass allegations that his conduct causes emotional abuse to the child, and that he is also neglectful of her.
The mother’s case is that existing parenting orders, made consensually between the parties in May 2008, now need to be substantially revised because of the risk that the father poses to both the physical and emotional health of the child. In order to ameliorate that risk, the mother proposes restriction of the child’s time with the father, and the imposition of supervision.
The father’s case is that the mother’s allegations are baseless, and although the child’s emotional health is compromised, that is only because of the mother’s needless involvement of her in conflict and continued litigation. He proposes that, in view of the mother’s unwillingness or inability to promote the child’s relationship with him, there is no option but to reverse the parenting arrangements so that the child lives with him.

Proposal and Primary Evidence of the Mother

The mother seeks the allocation of parental responsibility for the child solely to her, together with orders that the child live with her and spend restricted time with the father, often but not always subject to supervision by the paternal grandmother.
In support of the proposed orders set out in her Amended Application filed on 31 March 2010, the mother reads the following evidence:
(a)Affidavit of the mother filed on 4 June 2010.
(b)Form 4 Notice of Child Abuse or Family Violence, filed on 19 November 2009.
(c)Affidavit of the maternal grandmother, filed on 4 June 2010.
(d)Affidavit of Ms W, filed on 6 May 2010.
The mother sought leave to adduce in evidence the family report dated 7 December 2007, prepared by the Family Consultant in the last proceedings between the parties, but leave was refused for a number of reasons.
Firstly, the procedural orders made by the Court on 15 March 2010 did not contemplate the admission of such evidence at the trial and the application by the mother to adduce it was made without notice to the father and Independent Children’s Lawyer. They were taken by surprise, which was particularly salient in the circumstances of this case because the father was self-represented.
Secondly, the family report created in December 2007 necessarily addressed issues which were the subject of contest between the parties in the last proceedings, which issues were compromised by the parties’ agreement to proper parenting orders for the child on 14 May 2008. Antecedent controversial issues therefore merged in that agreement, which was ratified by the Court’s orders on that date.
Thirdly, the opinions and recommendations of the Family Consultant, formed well over two years ago, were overtaken by the opinions and recommendations of the single expert psychiatrist, who was consensually appointed in the present proceedings.

Proposal and Primary Evidence of the Father

The father seeks a reversal of the parenting arrangements for the child. He wants parental responsibility for the child allocated solely to him, except for decisions related to matters concerning the child’s health, for which he proposes there be equal shared parental responsibility. Otherwise, he proposes that the child live with him, and spend time with the mother on alternate weekends, for half of school holidays, and on special days. Although he does not propose that the child’s time with the mother be supervised, he is open to that possibility and leaves that decision to the discretion of the Court.
In support of the orders set out in his Response filed on 7 May 2010, the father reads the following evidence:
(a)Affidavit of the father, filed on 24 June 2010. Although the father was informed that the sealed copy of his affidavit held on the Court file did not comprise all annexures, and he did provide some further copies, the father failed to ensure that the Court was furnished with a complete set of those annexures.
(b)Affidavit of the paternal grandmother, filed on 16 November 2009.
The father sought, but was denied, leave to adduce in evidence a series of other documents and historical affidavits. They did not conform to the evidence he was permitted to rely upon pursuant to the procedural orders made on 15 March 2010 and 30 June 2010.

Proposal of the Independent Children’s Lawyer

The Independent Children’s Lawyer did not conduct the trial with any concluded view about the proper parenting outcome. Although no Minute of Order was ever produced, the Independent Children’s Lawyer announced during final submissions that she was generally supportive of the father’s position. She proposed that the child live with the father and that the father have sole parental responsibility for the child. She furthermore proposed that the child spend unsupervised time with the mother on alternate weekends and during school holiday periods.

Background Facts

The following recitation of facts is uncontroversial. Neither party was challenged about the accuracy of the facts recited, in which case I find the stated facts established.
The parties commenced their relationship in about September 2002.[1]
[1] Mother’s affidavit, par 6
They separated in June 2004, but remained living under the same roof, until the mother vacated their household and returned to live at her current home in R on 30 September 2004.[2]
[2] Mother’s affidavit, par 7
At that time the mother was pregnant with the parties’ child S (“the child”), who was born in February 2005. The child is now 5 years of age.[3]
[3] Mother’s affidavit, par 4
The mother was embittered by the parties’ separation. She wrote a letter to the father during her pregnancy, in which she said to the father:[4]
“…Now I am to have a child fathered by a person who I not only despise, but who will also have some genetic influence over my child. Make no mistake I will do everything in my power to raise this child so they never know who you are, and what sort of ___ you have been! Thanks to you my father is calling my baby a bastard.”
[4] Father’s affidavit, par 48, Annexure H
It seems that the mother did as she promised once the child was born in February 2005. She registered the child’s birth without disclosing the paternity of the child, even though she was well aware that the father was the biological father. The child’s birth certificate does not disclose the identity of her father.[5]
[5] Exhibit M5
The parties were unable to compromise their disagreement over the child and so the father instituted parenting proceedings against the mother on 27 September 2005.[6]
[6] Mother’s affidavit, par 304
The Court made interim parenting orders on 9 December 2005, which provided for the child to live with the mother and have supervised contact with the father.[7] Those orders prevailed until September 2006.
[7] Mother’s affidavit, par 308
The father was found to have contravened the parenting orders on one occasion. The contravention was established in September 2006.[8]
[8] Mother’s affidavit, par 319
A contemporaneous contravention application brought and sustained by the father against the mother in 2006 was later dismissed on appeal in 2007.[9]
[9] Mother’s affidavit, pars 318-298 (sic)
In September 2006 further interim parenting orders were made providing for the child to spend supervised time with the father at a contact centre.[10]
[10] Mother’s affidavit, par 320
In June 2007 the mother was found to have contravened the interim orders on numerous occasions, for which she was placed on a good behaviour bond for a period of 12 months.[11]
[11] Mother’s affidavit, par 321
The former parenting proceedings were finally concluded by agreement between the parties on 14 May 2008.[12] The Court made final parenting orders in accordance with the parties’ agreement, which in part provided that:
(a)The child would live with the mother (Order 1)
(b)The mother would have sole parental responsibility for all major long-term issues in relation to the child, except for education and health, for which the parties have joint parental responsibility (Order 2).
(c)The child would spend time with the father on a gradually escalating basis, which culminated in a regime of alternate weekends, one evening in intervening weeks, and half of all school holiday periods, once the child commenced school in 2010 (Order 4).
(d)There was no requirement for any of the time spent by the child with the father to be supervised, but the father was to provide the mother with his monthly drug screens until December 2008 (Order 6).
[12] Mother’s affidavit, par 324
Unfortunately, not even the making of final consent orders in May 2008 attenuated the parties’ conflict.
In June 2008 the mother brought a contravention application against the father, which was dismissed in July 2008.[13]
[13] Mother’s affidavit, par 327(a)
In February 2009 the mother brought another contravention application against the father.[14] The mother alleged two contraventions against the father. The first alleged contravention, concerning the father’s failure to comply with the order requiring his provision of drug screens, was dismissed by the Court in July 2009. The second alleged contravention, concerning the father’s failure to comply with an order requiring his attendance at a dispute resolution course conducted by Unifam, was sustained. No penalty was imposed upon him.
[14] Mother’s affidavit, par 327(b)
In June 2009 the father brought a contravention application against the mother, which he later withdrew in November 2009.[15]
[15] Mother’s affidavit, par 327(c)
In June 2009 the father also filed an application against the mother seeking orders against the mother pursuant to s 118 of the Family Law Act (“the Act”).[16] At the time of the present proceedings that application had not been prosecuted and was lying fallow.[17] The father asked that it remain so, pending the outcome of this trial.
[16] Mother’s affidavit, par 327(d)
[17] Order 5 made by Registrar on 11 November 2009
The mother alleges that she was told certain things by the child on 2 November 2009, which led her to suspect that the father had sexually abused the child. As a consequence, she immediately petitioned the Court for interim orders suspending the final orders made in May 2008 providing for the child to spend time with the father.
On 6 November 2009 interim orders were made temporarily suspending the child’s time with the father, and the proceedings were transferred from the Federal Magistrates Court to this Court.
The mother filed her Application in this Court to commence the present proceedings on 13 November 2009, and the matter came before the Court for further interim consideration some days later on 16 November 2009. On that date the matter was adjourned until 9 December 2009 and the suspension of the May 2008 orders providing for the child to spend time with the father was continued until that time.
The Court also appointed an Independent Children’s Lawyer, and the lawyer now fulfilling that role in these proceedings is the same lawyer who acted in that capacity in the prior proceedings concluded in May 2008.

When the matter came back before the Court on 9 December 2009 it was not dealt with and was consequently adjourned to the following day. On 10 December 2009 orders were made with the consent of the parties and Independent Children’s Lawyer to the following effect:
(a)The single expert witness was appointed (Order 1).
(b)Those orders made on 14 May 2008 which made provision for the child to spend time with the father were suspended (Order 2.1).
(c)Until the child commences school, the child was to spend time with the father each Thursday from 9.00 am until 4.30 pm (Order 2.2.1).
(d)Upon the child’s commencement at school, the child was to spend time with the father each Saturday from 9.00 am until 4.30 pm (Order 2.2.2).
(e)The time spent by the child with the father on those Thursdays and Saturdays was to be supervised by the paternal grandmother (Order 2.3).
The single expert conducted his interviews with the child, parties, and other relevant persons on 18 January 2010. The single expert prepared a report dated 18 February 2010, which was released to the parties and Independent Children’s Lawyer shortly thereafter.
The matter came before the Court for the first day of trial pursuant to Rule 16.08 of the Family Law Rules on 15 March 2010. The trial was resumed on 21 July 2010 and adjourned part-heard on 22 July 2010 due to the unavailability of the single expert for cross examination. The trial was resumed and concluded on 20 August 2010, at which time judgment was reserved.

Summary of Parenting Law

Orders in respect of children are regulated under Part VII of the Act. The legislation defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.

Evidence of the Single Expert

Dr B is the single expert witness appointed in the proceedings. He is an experienced psychiatrist.
The consent orders appointing the single expert required him to prepare a report commenting upon the mental state of the parties, the allegations of physical and sexual abuse of the child, and a raft of other considerations proscribed under s 60CC of the Act.[18]
[18] Order 1.2 made 10 December 2009
In his report, the single expert concluded that the mother was an anxious person. He described her as “somewhat obsessional”, who had difficulty managing her anxiety when there was uncertainty.[19] He had concerns about the mother’s anxiety and the way she interacted with the father,[20] noting that the communication between the parties was poor.[21] The single expert concluded that the mother’s anxiety about the father is irrational and not objectively valid.[22]
[19] Single expert report, pages 15.2, 15.4, 16.8
[20] Single expert report, page 14.5
[21] Single expert report, page 15.3
[22] Single expert report, page 18.4
The single expert expressed no criticism or caution about the father’s mental state, although he noted that the father finds it “extremely difficult” to deal with the mother’s anxiety.[23]
[23] Single expert report, page 17.1
The single expert formed the view that there was no unacceptable risk to the child.[24] He concluded that the allegations of abuse against the father had arisen in the context of the mother’s high anxiety, poor communication between the parties, and feelings of misgivings between them.[25] He believed that, in respect of the allegations of sexual abuse, the child had “most probably responded to the questions having been led by the mother’s anxiety”.[26] The single expert opined that the mother incorrectly interpreted the report made by her general practitioner to the NSW Department of Human Services as being substantiation of the allegation of sexual abuse against the father.[27]
[24] Single expert report, page 16.7
[25] Single expert report, page 17.2
[26] Single expert report, page 17.5
[27] Single expert report, page 17.6
The single expert recommended against a long-term arrangement of the child spending time with the father under supervised conditions, as that would cause the deterioration of the relationship between the child and father.[28] The imposition of supervision would only be for the purpose of reducing the mother’s anxiety,[29] which would likely fail as an objective because the mother would then probably baselessly come to regard the supervision as warranted because of an ongoing risk posed to the child by the father.[30]
[28] Single expert report, page 17.8
[29] Single expert report, page 17.9
[30] Single expert report, page 18.1
The final recommendation of the single expert was that the child’s care should be shared equivalently between the parties,[31] subject to the mother being able to contain herself and refrain from making “further spurious allegations” against the father.[32]
[31] Single expert report, pages 18.6, 19.2
[32] Single expert report, page 19.1
Although the single expert did not have the benefit of the parties’ more recently prepared affidavit material at the time he prepared his report in February 2010, he said when cross examined that he was generally aware of the parties’ concerns and views about events over the last two years.
The single expert’s comments about the mother’s irrational beliefs were moderated to some extent under cross examination. He conceded that some of the mother’s expressed concerns about the standard of the father’s care for the child were objectively reasonable, but he adhered to his views that the mother’s conclusions about the father were unreasonable. He found no reason to extrapolate that the father posed any risk to the child. He stated during his oral evidence that none of the fresh affidavit material furnished to him, nor inferentially the questions asked of him about it, caused him to change his professional opinion in any material respect.
Although the single expert is generally dismissive of the mother’s allegations against the father, the mother does not accept the veracity of his expert opinions and the evidence therefore needs to be considered carefully.

The mother’s allegations against the father

The mother’s case is that the consensual parenting orders made in May 2008 need to be revised because of the nature of the father’s conduct since that time. It is convenient to categorise the mother’s allegations and evaluate them discretely.

Allegations about unacceptable risk of sexual abuse

The mother alleges that on 25 October 2008 she had a conversation with the child as follows:[33]
Child: Daddy has a tail on his front bottom. Daddy shows me his tail.
Mother: Is it in the shower?
Child: No, he just shows me his tail.
Mother: Do you touch Daddy’s tail?
Child: No, its stinky
(the conversation continued later)
Child: I sleep in bed with Daddy and he doesn’t want me to wear undies. He says I don’t need to wear undies and he keeps taking them off.
[33] Mother’s affidavit, pars 95-97
The mother reported that conversation to the NSW Department of Human Services (“the Department”) the following day,[34] but she heard nothing more about the matter from the Department. She did not instigate any further parenting proceedings on the strength of that conversation, from which I impute that she did not regard the child’s report as sufficiently reliable to establish improper behaviour by the father. She paid the matter no further heed until the occurrence of much later events.
[34] Mother’s affidavit, par 98
Over a year later, on Monday 2 November 2009, the mother was bathing the child at about 8.45 pm. The mother noticed some red marks on the child’s legs in proximity to her groin.[35]
[35] Mother’s affidavit, pars 33-37
The child had spent the preceding weekend with the father, and so she began a conversation with the child about the marks that she observed. The conversation is relevantly recited as follows:[36]
[36] Mother’s affidavit, par 38
Mother: What are those marks on your legs?
(the child did not reply)
Mother: It is important for you to tell mummy how you got those marks on your legs.
Child: I don’t want to tell you.
Mother: Did Daddy make those marks?
Child: Yes.
(some further conversation then followed, before resuming)
Mother: Did Daddy touch you down there? (with the mother pointing to between child’s legs)
Child: Yes (with the child pointing and touching between her legs)
(some further conversation then followed, before resuming)
Child: Daddy did it with a pen.
By even asking about the marks on the child’s legs, the mother was signifying her interest in them. It is important to appreciate that the mother’s interest was not casual or isolated. The mother had been displaying a heightened degree of interest in marks on the child’s body for nearly 18 months. The mother conceded in cross examination that on the child’s very first return from an overnight visit to the father, following the making of final orders in May 2008, she had examined the child’s body and taken photographs of marks on her body. The mother continued to do so periodically thereafter, perpetuating a practice that started when the child was barely 3 years of age. Photographs taken by the mother of the child were tendered in evidence.[37] In many of the photographs the child is depicted with naked genitals in graphic poses. When the mother began the conversation with her on 2 November 2009, the child was therefore well aware of both the mother’s long-standing interest in marks on her body, and any connection between such marks and her visits with the father.
[37] Exhibit ICL1
In that context, it is unsurprising that the child was initially reluctant to discuss the marks observed by the mother at that time. When the mother prompted the child, by indicating the importance of the issue, the child was obliged to give a verbal response. She did so by saying that she did not want to discuss the matter. The mother pressed on, asking the most loaded question that could possibly have been posed at that point, positively suggesting that the father was at fault. Having regard to the imbalance of power in the relationship between the mother and the child, there was really no escape from the conversation for the child – she agreed with the mother’s proposition. The mother then suggested to the child that the father had touched her on the vulva by graphically pointing to that part of her body, even though the child had not mentioned her genitals. The marks on her skin which prompted the conversation were on the upper inside of her legs. The child affirmed that the father had touched her in the area of her body to which the mother had pointed. Perhaps unsurprisingly, she did so because she felt the need to accede to the pressure exerted by the mother.
It is extremely difficult to interpret that conversation as confirmation of sexual molestation of the child by the father, unless one construes the words and actions literally and ignores the manner in which the child was led. The single expert described the questions posed by the mother to the child as quite inappropriate. The mother now realises that. In cross examination she conceded that her questions were highly suggestive to the child, who was then still only 4 years of age. The mother now accepts that what the child said is most probably what she put into the child’s mind by her leading questions, rather than what was truthful. The mother also now accepts that the practice she intermittently adopted of taking photographs of the child’s body upon her return from visits with the father is “not a good thing”, which I infer is a euphemistic acknowledgement that her conduct potentially caused emotional harm to the child. That conclusion is easy to reach, since the child told the father that she did not like being photographed by the mother, which information the father drew to the mother’s attention as early as June 2008.[38]
[38] Father’s affidavit, pars 256-257
Although the mother is prepared to make those concessions now, she certainly did not feel that way on 2 November 2009. After the mother finished bathing the child she took her to the hospital.[39] The child had no treatable injury, so the visit must have been for the forensic purpose of documenting the allegation, or having the child examined, or both.
[39] Mother’s affidavit, par 40
The mother’s willingness to have the child medically examined is perplexing because the child’s allegation, construed at its worst, was that the father had touched her on or near the vulva, perhaps with a pen. A medical examination of her genitals could neither confirm nor discount such an event. The idea of a medical examination could only be conceived in an attempt to shed light on the probability of penetration of the child’s vagina, which was not a feature of anything the child had expressly said or inferred to that point.
The mother was referred from the local hospital to the district hospital, and she was informed that hospital staff had notified the Department.[40]
[40] Mother’s affidavit, pars 41-42
The mother was advised against a medical examination of the child by staff at the district hospital, who the mother then alleges referred her to her general practitioner.[41] Although the mother was not challenged about that evidence, I find it quite illogical that a member of a specialist sexual assault response team would recommend against medical examination of the child at the hospital, but then recommend later examination of the child by an ordinary general practitioner at a time much less proximate to the alleged abuse.
[41] Mother’s affidavit, pars 43-44
The next day, being 3 November 2009, the mother took the child to day care where the mother discussed her belief about the child’s possible sexual abuse with the child’s day carer. The day carer then reported the conversation to the director of the day care centre, who made a contemporaneous note of the report, and then herself notified the Department of the matter. The notes of the day care director are in evidence.[42]
[42] Exhibit F7
The notes were shown to the mother and she was asked about them. Her evidence was somewhat equivocal. Firstly she agreed that the contents of the notes were correct, but then later said that her conversation with the day carer was not held in the presence of the child, as the notes clearly suggest it was. I cannot reconcile the apparent inconsistency in the mother’s evidence on that issue. The mother was recollecting a conversation from many months ago, so some erosion in the accuracy of her memory may be expected. I prefer to rely upon the notes, which are likely more accurate, because they were made contemporaneously by a child care worker who undoubtedly regarded the discussion as important. The notes reveal that the mother held her conversation about the suspected sexual abuse of the child in the presence of the child, and that when the day carer asked about the identity of the perpetrator the child interjected in the conversation and said “Daddy”, apparently on a prompt from the mother.
There can be little doubt that the child was by then well aware that her mother believed that she had been handled in some improper way by her father, and that it was a matter of such significance that it was being discussed by her mother with staff at hospitals and her day care centre. In those circumstances, even though probably nothing untoward had occurred to the child, she would likely thereafter respond affirmatively to the anxiety and suspicion of the mother.
In accordance with the advice that the mother alleges having received from the hospital staff, she took the child to her general practitioner. The appointment was on 5 November 2009,[43] by which time some four days had elapsed since the child was last in the care of the father. The doctor examined the child.
[43] Mother’s affidavit, pars 45-46
The mother alleges that the doctor reported to her as follows:[44]
“I suspect that there has been interference with [the child] due to the appearance and location of the bruising and grazes between her legs…I am greatly concerned and will make a report to [the Department]”
[44] Mother’s affidavit, pars 48-49
If accurate, the words attributed by the mother to the doctor are most perplexing. So far as the evidence goes, the marks observed on the child by the mother and doctor were on her legs, not her vulva. How the doctor could offer a reliable opinion about a causal connection between those marks and improper interference with the child’s genitals is deeply mysterious.
Understandably, the doctor’s notes of that consultation with the child generated some interest in the proceedings, and they were tendered in evidence.[45] The notes disclose that the doctor found the child to be her “usual playful self”. He examined her without removing her underwear. The doctor observed “a lesion consistent with a healing abrasion on her right inner thigh”. The doctor’s notes also record “P.D. Physical abuse”, the precise meaning of which remains uncertain, although the single expert believes that it means “provisional diagnosis of physical abuse”.[46] Consistently with the belief of the single expert, I impute that the note means that the doctor suspected that the child may have been the subject of physical abuse, because he made a mandatory report to the Department on 9 November 2009.
[45] Exhibit M3
[46] Single expert report, page 4.4
The doctor’s notes are illuminating for two reasons. They are not corroborative of the mother’s evidence about what the doctor allegedly said to her, and they do not demonstrate that the doctor was satisfied, or even suspicious, about the occurrence of any sexual abuse. He apparently reported only physical abuse of the child, and then only the possibility thereof, to the Department. I therefore do not accept the mother’s evidence of what she was told by the doctor as being accurate, or alternatively, probative of any diagnosis or opinion.

Later on the evening of 5 November 2009 the mother took the child to the maternal grandparents’ home, where she stayed overnight with them. That permitted the mother to attend Court on 6 November 2009 alone to deal with the interim application she had filed with the Court seeking suspension of the orders providing for the child to spend time with the father.
On 6 November 2009, at about 3.45 pm the child had a conversation with the maternal grandmother in the following terms:[47]
[47] Affidavit of maternal grandmother, pars 13-21
Child: Daddy put me on the table and put a pencil in me.
MGM: Where did daddy put the pencil?
(the child pointed between her legs to her genitals)
MGM: Did it hurt?
(the child nodded affirmatively, but did not speak)
MGM: Did you tell daddy that it was naughty to do that?
(the child shook her head negatively, but did not speak)
MGM: Were you in bed when daddy did this?
Child: No, it was day. It was sunny.
It is instructive to note the material differences between the report by the child to the maternal grandmother on that day, and the report by the child to the mother some days before. Firstly, the child alleged the father’s use of a pencil, not a pen, as she had previously said to the mother. Secondly, the child implied that her body had been penetrated with the object, when no such penetration had been alleged or implied before. The differences are striking. By the time of this conversation, the child’s body had been the subject of intense interest and examination by the mother, hospital staff, and the mother’s general practitioner, all within the preceding few days. The child’s intrigue about such interest must have been compounding. Although the curiosity and worry of the maternal grandmother, who reported the conversation to the mother, is understandable, the inherent unreliability of anything the child said was rapidly worsening.
On 11 November 2009 the mother alleges that she and the child had the following conversation:[48]
[48] Mother’s affidavit, pars 63-71
Child: My bottom is sore
Mother: Show me where
(the child pointed to the area between her legs at the front of her body)
Mother: Does it sting when you do a wee?
Child: No, it just hurts.
(the mother looked between the child’s legs)
Mother: It looks fine. Mummy can’t see anything wrong.
(a little later in the evening the conversation continued)
Child: Mummy, my bottom is sore. Mummy can you rub it?
Mother: No, we don’t rub down there.
Child: Daddy does.
The child had spent no time with the father since the morning of 2 November 2009 after he delivered her to day care. It was impossible for him to have been the cause of any new soreness felt by the child on 11 November 2009, of which she complained to the mother.
Nor is it particularly alarming that the child would indicate that the father had rubbed her in the area of her genitals or bottom. If she were chaffed, or had reddened or dry skin, it would be plausible and unremarkable for the father to inspect and treat the ailment by rubbing ointment into the soreness. Indeed, there is evidence that the maternal grandmother had herself done precisely that to treat the child. The fact that the mother saw the need to adduce evidence of that conversation demonstrates that she tends to jump to adverse conclusions about the father. She inferred that the child had described something sinister, when it is equally capable of innocent explanation. The view of the single expert, which I accept, is that the mother’s tendency to think the worst is borne of her anxiety and lack of trust in the father.
On 28 January 2010 the child was delivered by the mother to the maternal grandparents for an overnight stay. The child had spent the day with the father under the supervision of the paternal grandmother, pursuant to fresh interim parenting orders made on 10 December 2009.
That evening the child was bathed by the maternal grandmother, who noticed that the child was red around the area of the vulva and bottom. She had the following conversation with the child, as she dried and applied Vaseline to the skin around the affected area of the child’s body:[49]
MGM: Has anybody checked you today about this?
Child: My daddy looked.
MGM: Did daddy touch you?
Child: I am not allowed to say.
[49] Affidavit of maternal grandmother, pars 37-40
It would not be surprising for the father to have looked at that area of the child’s body earlier in the day if her skin was as red as the maternal grandmother says. If it evoked the interest of the maternal grandmother, it is unsurprising that it evoked the interest of the father. Similarly, it would be unsurprising for the father to have touched the child on that part of her body if he was checking or treating her, just as the maternal grandmother later did by applying Vaseline.
If, as the child allegedly reported to the maternal grandmother, the father had earlier instructed the child not to discuss with the mother or members of the maternal family him touching her, that was unwise of him, but not particularly surprising. Serious allegations had recently been made against the father that he had sexually abused the child, which allegations he refutes. It is understandable how the father might not have wanted ordinary physical interaction between himself and the child reported back to, and misconstrued by, the mother and members of the maternal family.
Later that evening when the maternal grandmother accompanied the child to the toilet, the child said “My bottom’s sore.”[50] The child’s bottom may well have been sore from the redness earlier observed by the maternal grandmother, or for a myriad of other unexplained reasons. In isolation, as the evidence has been adduced, the child’s complaint about soreness is utterly meaningless.
[50] Affidavit of maternal grandmother, par 36
Why the maternal grandmother thought it noteworthy to give evidence of those conversations with the child is puzzling, but equally revealing. She reacted to information, only some of which was about the father, and all of which was relatively innocuous, in an alarmist way. The very next day the maternal grandmother reported the conversation to the Department.[51] The only reason for making the report is that she drew some nexus between the child’s conversation and the child being at the risk of sexual molestation at the hands of the father. Firstly, those conversations on 28 January 2010 hardly provide any logical basis for such a suspicion, and secondly, her belief demonstrates that she had lost the capacity for objective appraisal.
[51] Affidavit of maternal grandmother, par 41
The child was interviewed by the single expert on 18 January 2010. Nothing said by the child,[52] and nothing about her observed interaction with the father,[53] was suggestive of any sexual molestation of her by the father.
[52] Single expert report, page 10
[53] Single expert report, page 12
At the commencement of the trial, senior counsel for the mother fairly conceded that the mother was not pressing for a positive finding that the father had sexually molested the child. Tellingly, it was not directly put to the father in his cross examination that he had sexually molested the child. Although the father was not therefore called upon to positively deny the allegation in evidence, it is implicit from other evidence adduced in the case that he denies handling the child in any sexually inappropriate way. The single expert had earlier interviewed the parties together, and the father flatly denied the allegations to the mother’s face, suggesting that the allegations were scurrilous.[54]
[54] Single expert report, page 13.7
The evidence falls far short of establishing as a fact, on the balance of probabilities, that the father has sexually abused the child. The conduct of the mother’s case represented a frank acknowledgement of that.
Nevertheless, the mother still submitted that the evidence was sufficient to satisfy the Court of the existence of an unacceptable risk of sexual abuse of the child by the father. I reject that submission. The circumstances of the evidence adduced by the mother are far too tenuous and unreliable to be so satisfied. I comfortably conclude on the available evidence that there is no unacceptable risk of the child being sexually abused by the father.

Allegations about actual emotional abuse

In cross examination the mother said that she believed that the father emotionally abuses the child “to a certain extent”, but the mother did not reveal to what extent she believes the emotional abuse is perpetrated. She did not quantify her concerns about it as being substantial, mild, or merely trifling.
The mother was asked about the matters that gave rise to her concerns about emotional abuse of the child by the father. Her answer was confined to three issues, which were:
a)Her observations of the child’s past distress when being prepared for visits to the father, evidence about which was adduced in the mother’s affidavit.[55]
b)The child reporting to the mother that the father tells the child that her surname is “Scailer”, rather than “Tusk”, which is the name on her birth certificate and the surname by which she is known whilst in the mother’s care.[56]
c)The child reporting to the mother that the father says disparaging things to her about the mother.[57]
[55] Mother’s affidavit, pars 77-82, 86-87
[56] Mother’s affidavit, par 93
[57] Mother’s affidavit, par 92
Although the mother did not directly refer to it in her answer during cross examination, her affidavit also discloses that she is concerned about reports of the father locking the child in a room as being another cause of her emotional harm.[58]
[58] Mother’s affidavit, pars 72-74, 83-84, 87-88
The mother gives evidence that the child has become distressed at changeovers in the past. She has cried, protested about going with the father, and pleaded to stay with the mother. The mother said in cross examination that such behaviour began in about April 2009, which is generally consistent with her affidavit evidence.[59] The mother was corroborated by her friend, Ms W, who said that she accompanied the mother on changeovers,[60] and that the child has become distressed on the majority of occasions she attended.[61]
[59] Mother’s affidavit, pars 77, 80
[60] Affidavit of Ms W, par 12
[61] Affidavit of Ms W, par 18
Although the mother was curious about why the child would behave in that way, her inclination was to infer that it was related to the manner in which the child was treated in the father’s home.[62] The mother instructed her solicitors to write to the father in September 2009 inquiring whether he could advance any reason for the child’s behaviour.[63] The father promptly responded to the inquiry in writing.[64]
[62] Mother’s affidavit, par 82
[63] Mother’s affidavit, par 87
[64] Mother’s affidavit, par 88
In his letter, the father admits that the child has occasionally been upset at changeovers, but asserts that she settles quickly in his care. That evidence was consistent with the evidence of the single expert, who said that the mother’s anxiety was impressed upon the child, and that the child’s anxiety on separation from the mother was liable to quickly settle once that process of separation was complete. The father also alleged that the child has been upset on occasions when handed back by the father to the mother at changeovers. That evidence was not refuted by the mother.
Evidence was given in the mother’s case by the maternal grandmother. She observed the child to become distressed upon leaving the care of the mother to be minded temporarily by the maternal grandmother for a period of months in the latter part of 2009.[65] The most vivid example of that behaviour occurred on 12 November 2009 when the child became highly distressed about leaving the mother.[66] Evidence of a similar event on 19 November 2009 was given by the mother’s witness, Ms W, when she cared for the child.[67]
[65] Affidavit of maternal grandmother, par 25
[66] Affidavit of maternal grandmother, pars 26-28
[67] Affidavit of Ms W, pars 30-34
It is clear from the evidence of both the maternal grandmother and Ms W that the child’s distress at leaving the mother is behaviour that she exhibits for adults other than the father, because she has acted that way for them too. It is not behaviour intrinsically linked to the child being passed into the care of the father. That evidence corroborates the opinion of the single expert, which I accept, that the child’s anxiety occurs when she is being separated from the mother.
The mother said in evidence that the distress of the child ceased in late 2009, which the mother correlates with the cessation of the child spending unsupervised time with the father, and the imposition of supervision by the paternal grandmother. The maternal grandmother corroborates the mother.[68] Of course, the correlation drawn by the mother and maternal grandmother is conjectural. Apart from simply observing the coincidence in timing of the two events, neither the mother nor the maternal grandmother is seized of the psychological expertise necessary to offer a reliable opinion about any connection between the two events. The single expert was not asked to posit an opinion upon the connection. He was simply asked to assume the temporal correlation and then concede that a link was possible, which he did. Although the link may be possible, there is no evidence that it is probable.
[68] Affidavit of maternal grandmother, pars 30-33
Given that the child exhibited distressed behaviour with other important adults in her life besides the father, and in the absence of probative expert evidence on the issue, I do not draw any inference that the subsidence of episodes of the child’s distress was linked to the imposition of supervision by the paternal grandmother. That is one inference, but there are other equally plausible explanations for why the child became distressed upon separation from the mother during the closed period between April 2009 and late 2009. It may simply have been a phase of childhood. It could also have been caused by the child acting out in response to the pressure she felt in dealing with the mother’s anxiety or the intense conflict between her parents, which the single expert also discussed.
To establish the fact inferentially alleged by the mother she must do more than rely upon evidence that gives rise to conflicting inferences of equal degrees of probability, otherwise the choice between the inferences is a mere matter of conjecture (see Bradshaw v McEwan’s Pty Ltd (1951) 217 ALR 1 at 5; Palmer v Dolman [2005] NSWCA 361 at [35-40]). The law does not permit the Court to choose between guesses (see Jackson v Lithgow City Council [2008] NSWCA 312 at [9-12]).
The evidence does not therefore establish the inference pressed by the mother. I am not satisfied that the episodes of distress exhibited by the child during 2009 were a sign of emotional harm suffered by the child which was in any way connected to improper conduct of the father.
It is common ground that the father has asserted his entitlement to use the surname “Scailer” for the child. He told the single expert that in the mother’s presence. The mother bridled at him doing so. The father was apparently surprised by the mother’s reaction and asserted that the child liked being called “Scailer”.[69] He is well aware now, if he was not before, that the mother steadfastly opposes the use of any surname other than “Tusk” for the child.
[69] Single expert report, page 13.5
Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan v Handcock (2001) FLC 93-074 at [19-38]; M v B [2001] FamCA 894 at [35-37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).
The child’s surname was registered as “Tusk” by the mother upon her birth. Since then the child has lived primarily with the mother, who enrolled her at both day care and school by that surname. Those facts are beyond argument. Consequently, I infer that the child has come to identify herself by the surname of “Tusk”. The child reported to the mother that the father told her that she has different names, depending upon the parent with whom she is living, and that she does not like that.[70] The child raised the same concerns with Ms W.[71] The anxiety exhibited by the child to the mother and Ms W about the father referring to her by his own different surname is indicative of her acceptance of “Tusk” as her true surname.
[70] Mother’s affidavit, par 93
[71] Affidavit of Ms W, pars 50-51
The father is keen to retain and cultivate a paternal influence in the child’s life. The child’s use of his surname would be an obvious way of promoting that objective. However, the father demonstrates a lack of insight by disturbing the child’s stability over the issue. I infer that the child is anxious about the issue of her name, but I am far from satisfied that she has been caused emotional harm over the issue by the father. Lacking insight is one thing, but being emotionally abusive is quite another. It would be de-stabilising for the child to have her surname changed at this point in her life, or for her to be known by a different surname when living or spending time with the father, so the orders preclude that occurring.
Nevertheless, the absence of details about the child’s paternity upon her birth certificate requires rectification. Having regard to the mother’s admission about the father’s paternity of the child, the father’s details should be included as registrable information in the register kept pursuant to the Births, Deaths, and Marriages Registration Act 1995 (NSW).[72] The orders require amendment of the register. Orders of that ilk by this Court are authorised by that legislation.[73] The Independent Children’s Lawyer proposed in final submissions that such orders be made, and neither the mother nor father demurred.
[72] See ss 18(d), 19(2), 20, 43, and 45 of the Act
[73] See ss 19(2) and 45(2) of the Act
The child reported that the father has made disparaging comments to her about the mother. She has made those reports to both the mother[74] and Ms W.[75] The child reported that the father refers to the mother as “psycho” and “bad”. She is obviously troubled by the father saying such things to her. If the child accurately reported the comments of the father it reflects poorly upon him. Whatever exasperation he may feel about the mother, to denigrate her that way in the presence of the child is reprehensible. The only plausible outcome of such conduct is distress for the child. I am not however satisfied that the child has been emotionally harmed to the extent necessary that there is now a need to impose supervision upon the time spent by the child with the father to prevent the future occurrence of such denigration. An injunctive order will suffice.
[74] Mother’s affidavit, par 92
[75] Affidavit of Ms W, par 16
The mother alleges that the child reported to her in April 2009 that the father locked her in a room overnight.[76] The mother reported that complaint to the Department.[77] The absence of evidence about subsequent action by the Department in response to the complaint leads me to infer that the Department either did not investigate or substantiate the complaint.
[76] Mother’s affidavit, par 72
[77] Mother’s affidavit, par 74
The mother alleges that the child made another complaint to her in September 2009 of being locked in a room by the father.[78] Some days later the mother instructed her solicitors to write to the father advising him of the child’s complaint and inviting his response.[79] The father promptly replied in writing.[80] The father asserted that there were no locks on internal doors within his residence, with the exception of the bathroom door. On his version, what the child allegedly told the mother could not be true. There is no evidence to refute the father.
[78] Mother’s affidavit, pars 83-84
[79] Mother’s affidavit, par 87
[80] Mother’s affidavit, par 88

When the father was cross examined it became apparent that it was his intention to consult with the mother on all major long-term issues relating to the child falling within the province of parental responsibility. He did not intend to act on such decisions without consulting the mother, even if parental responsibility was allocated solely to him in respect of all matters but health. Rather, he regarded the allocation of parental responsibility to him in those terms as providing him with only ultimate decision-making responsibility in the event of deadlock between the parties.
There is no evidence that the mother would consult with the father in the same way should she have sole parental responsibility for the child. In fact, the evidence suggests that the mother would use that authority in such a way as to exclude the father from involvement in decisions of importance in the child’s life. Under the orders made in May 2008,[154] the mother was allocated sole parental responsibility for the child, other than in respect of issues relating to the child’s education and health. There is no evidence that the mother has voluntarily consulted with the father since then on any issue other than education and health. In fact, the evidence demonstrates that the mother has failed to consult the father on issues for which they retained joint parental responsibility. The incident concerning the mother’s arrangement of eye surgery for the child is an obvious example.
[154] Order 2
The single expert said in cross examination that he lacked confidence that the parties would rectify their communication problems. However, his lack of confidence should not be interpreted as a belief in the opposite. The single expert was not unduly pessimistic, because he tempered his misgivings about the communication difficulties by saying that “the stakes are now high” for the parties, and they “have a lot to lose”. What he clearly meant was that he believed the parties were intelligent enough to realise they now had to put their petty bickering to one side and communicate efficiently for the benefit of the child, and whilst he had reservations about that occurring, he thought they were capable of it.
Despite the uniform but polarised submissions of the parties and Independent Children’s Lawyer, I am not satisfied that the best interests of the child require rebuttal of the presumption of allocation of equal shared parental responsibility. Whilst there remains the prospect of communication difficulties, I am not satisfied that the prospect is so pronounced as to rebut the presumption. The parties are undoubtedly capable of rational discussion about the child, such that an arrangement of equal shared parental responsibility will likely work. Allocating sole parental responsibility to one of them, particularly the mother, would isolate the other party and potentially work to the long-term disadvantage of the child.
The evidence persuades me there is an enhanced prospect of harmonious interaction between the parties if each undertakes a post-separation parenting program. While each party previously investigated enrolment in such a program, neither participated, for the reasons discussed. The orders require the parties to successfully complete such a program. For the purposes of s 11E of the Act, I record that I considered but refrained from seeking advice about such an order from the Family Consultant because the single expert recommended that the parties submit to counselling.[155] Although a post-separation parenting program is not counselling, it is still a form of therapy designed to overcome a party’s disaffection with family dysfunction. For the purposes of s 65LA(2) of the Act, the best interests of the child require the parties to participate in a post-separation parenting program in the hope their communication can be improved.
[155] Single expert report, page 18
No order has been made for the parties to undertake therapeutic counselling beyond the post-separation parenting program. Neither the parties nor the Independent Children’s Lawyer identified the source of statutory power to make such an order on a final basis. If the parties are genuinely desirous of professional intervention of that sort they will seek it out voluntarily, particularly in the knowledge of the single expert’s opinion that they would likely benefit from it.

Parenting Orders

Given the allocation of equal shared parental responsibility, the Court must consider the options of the child living for equal time with the parties, or living with one and spending substantial and significant time with the other. Those outcomes are to be considered in light of both the child’s best interests and the practicability of such arrangements.
The child currently lives with the mother at R. The father had been living on the central coast, but recently relocated to the mid north coast of NSW. The households are too far apart for the child to live for equal time in each household. It would be impracticable.
Similarly, it would be impracticable for the child to spend substantial and significant time in the non-residential household because of the geographical separation of the parties’ households.
Those conclusions are vindicated by the attitudes of the parties. They do not believe that such arrangements are feasible either. Each proposes that the child live with them and spend time with the other party. In each case, the time spent by the child with the other party would probably not amount to substantial and significant time, as defined in the Act. The father proposes that the child spend time with the mother on alternate weekends, during school holidays, and on some special days. The mother proposes that the child spend even less time with the father in reversed circumstances.
Since the alternatives of equal time and substantial and significant time are both impracticable, there is no need to consider whether such alternatives would meet the best interests of the child. That is because the conditions requiring the outcome to meet the best interests of the child and be practicable must both be met before either outcome is viable.
It is therefore common ground that the child should live predominantly with one party, in which event the first question to address is the party with whom the child should live.
The father conceded in cross examination that the child was primarily attached to the mother. He could not rationally do otherwise. The child has lived continuously with the mother at R since her birth. She attends the local school. She has regular contact with friends and family of the mother.
The father proposed that the child live with him on the mid north coast. The father is now in permanent part-time employment in the local area, which he commenced in April 2010. He works 40 hours per fortnight. He proposed that the child live with him in that area and that she attend a local school. The father further proposed that his sister would assist him in the care of the child in the event of him being precluded from doing so by work commitments.
The only basis promulgated by the father for a reversal of the child’s residential arrangements was the emotional abuse he alleged was being caused to the child by the mother’s involvement of the child in perpetual conflict, and in particular, the maintenance of the accusations of sexual abuse of the child by the father. The father maintains that the accusations are false.
For reasons already discussed, there is no basis to conclude that the father poses a risk of physical or emotional abuse to the child. Although the child is at some risk of emotional harm if the mother causes damage to the relationship between the child and the father, the circumstances are not such as to yet dictate that the child should be removed from the primary care of the mother. The harm that would be suffered by the child in being separated from her primary attachment figure is, presently at least, more likely to be of greater moment than any emotional harm caused to her by the mother. On balance, the evidence justifies the current retention of the child’s residence with the mother.
The single expert initially posited a parenting arrangement that would entail the parties caring for the child equivalently. That recommendation in his report was made in the belief that the parties lived close enough to one another for such an arrangement to be practicable. In the knowledge that they now do not, the single expert conditionally proposed an arrangement where the child would live with the mother and spend unsupervised time with the father. He described that as the “ideal outcome”. As the evidence stands, I accept that such a parenting arrangement most suits the child’s best interests.
Having determined the child’s residence, it then falls to consider the time that should be spent by the child with the father.
It will be observed from the mother’s Amended Application that she does not propose that all time spent by the child with the father is the subject of supervision – only some of it. The mother explained in evidence that any time spent by the child with the father of less than one day’s duration did not need to be supervised. Even with the benefit of that explanation, the logic of the mother’s position is difficult to understand. Either supervision is warranted or it is not. Whatever danger to the child might exist over a period of days, so as to warrant supervision, could just as easily exist over a period of hours.
Although the orders proposed by the mother in her Amended Application suggest that the partial supervision should apply indefinitely, that was not the mother’s position. The mother said in cross examination that she only proposed that the partial supervision continue until the child was aged 8-9 years, when she expected that the child would be capable of engaging in self-protective behaviour to guard against the threat of sexual abuse.
The evidence demands a conclusion that there should be no supervision of the time spent by the child with the father. He does not pose an unacceptable risk of harm to her. That was the opinion of the single expert, which accords with my findings of fact.
The unsupervised time spent by the child with the father is therefore shaped by the pragmatic consideration of the distance between the parties’ households. The duration of the time spent by the child with the father should be as expansive as the distance between the households will reasonably allow.
The orders made provide for the child to spend time with the father on alternate weekends during school terms, and for half of school holidays. That regime will involve, each alternate weekend, the child in two car journeys of a little less than 2 hours duration, and the parties in a single return journey of about 3.5 hours duration. Such an arrangement is practicable for the parties and the child.
That arrangement coincides with the parenting regime to which the parties previously agreed under the consent orders of May 2008, once the child commenced school in 2010, and provided the father lived more than 20 kilometres from the child’s school.[156] It also broadly correlates with the regime proposed in these proceedings by the father in the event that the child lived with him and spent time with the mother.
[156] Orders 4(e) and 4 (f)
The time spent by the child with the parties in school holiday periods is confined to a week at a time, and alternates between the parties.
Alternating arrangements are made for the few days across the Christmas period each year so that the child shares Christmas Eve, Christmas Day, and Boxing Day equitably with the parties.
Changeovers are to be implemented at public venues in proximity to the parties’ homes. The parties are required to share the travelling equitably, which reflects their mutual intention. It will be of advantage to the child to witness each parent participating equally in the changeover process. She is more likely to conclude that the time she spends with the father is supported by both parents if each participates in the changeovers.
The orders also make provision for the child to communicate regularly with each parent by telephone at fixed times. The regular weekly routine will assist both the child and parties adjust to that arrangement.
There could be no sensible argument about the mutual obligations of the parties to keep one another informed of their contact details and medical events concerning the child. Nor could any party be reasonably heard in opposition to the order restraining the parties from denigrating one another in the presence of the child.
The orders pertaining to the child’s surname, amendment of the child’s paternity details on the NSW register, and the issue of a fresh birth certificate for the child have already been explained earlier in these reasons.
I am satisfied that the orders set out at the commencement of these reasons promote the child’s best interests.

I certify that the preceding 263 (two hundred and sixty three) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 August 2010.

Associate:

Date: 27 August 2010

[2010] FamCA 751

27 August 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies