VARNEY & CARNE

[2018] FamCA 148

FAMILY COURT OF AUSTRALIA

VARNEY & CARNE [2018] FamCA 148

FAMILY LAW – CHILDREN – With whom the child lives – where there are allegations the father and paternal grandmother sexually abused the child – whether there is an unacceptable risk of harm to the child in the father’s care – where the child has speech and language  delays – where the child had spent unsupervised time with the father after separation – where the parties entered into final Consent Orders in October 2015 – where the allegations arose after that – where the child has been spending supervised time with the father since October 2016 – where the mother obtained a domestic violence protection order against the father in 2015 – where an order for equal shared parental responsibility is not in the child’s best interests – where an unacceptable risk of harm is not found – where the mother is granted sole parental responsibility – where the child will continue to live primarily with the mother and spend unsupervised time with the father on an increasing basis.  

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Cox v Pedrana (2013) FLC 93-537
M v M (1988) 166 CLR 69
W v W (2005) FLC 93-235

APPLICANT: Mr Varney

RESPONDENT: Ms Carne

INDEPENDENT CHILDREN’S LAWYER: Bruce Legal

FILE NUMBER: BRC 3585 of 2015

DATE DELIVERED: 9 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23, 24, 25, 26 & 27 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast of Counsel

SOLICITOR FOR THE APPLICANT: Browns Lawyers

COUNSEL FOR THE RESPONDENT: Mr Balzamo of Counsel

SOLICITOR FOR THE RESPONDENT: Hunter Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bruce Legal

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders are discharged.

2. The child, B, born … 2012, live with the mother.

3. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the child’s name and changes to the child’s living arrangements that make it significantly more difficult for him to spend time with the father, in respect of the child, save that the mother shall, prior to making a decision about any such issue:

   (a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

4. The parties shall have equal shared parental responsibility in relation to the issues of the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father.

5. The father shall have sole responsibility for making decisions about the child’s day to day care, welfare and development whilst he is in his care.

6. The mother shall have the sole responsibility for making decisions about the child’s day to day care welfare and development whilst he is in her care.

7. The child shall spend time with and communicate with the father at all times as agreed between his parents in writing and, failing agreement, as follows:

   (a)until 30 March 2018: each Saturday for a period of three (3) hours, with such time to be supervised by Ms C from D Contact Centre, E Street, Suburb F at such times as she can accommodate and, at Ms C’s discretion, to occur at either D Contact Centre or at the public park, the shopping centre or the playground located near the D Contact Centre; and thereafter

   (b)until 30 June 2018: each Saturday from 11.00 am until 2.00 pm (unless otherwise agreed between the parents in writing), with changeover to occur at D Contact Centre, E Street, Suburb F with the assistance of Ms C or such other supervisor as she recommends; and thereafter:

   (c)from 1 July 2018 until 30 September 2018: each Saturday from 11.00 am to 5.00 pm; and thereafter

   (d)from 1 October 2018 until 30 November 2018: each Saturday from 9.00 am to 5.00 pm;  and thereafter

   (e)from 1 December 2018 until 31 May 2019: each alternate weekend from 9.00 am Saturday to 4.00 pm  Sunday; and thereafter

   (f)from 1 June 2019: each alternate weekend from after school Friday (with the father to collect the child from school at the commencement of this time) until 4.00 pm Sunday;  and

   (g)provided that the blocks of consecutive nights are not themselves consecutive: for three (3) consecutive nights in each week of the September/October 2019 school holiday period, with the father to advise the mother in writing of these dates by no later than 30 June 2019; and

   (h)provided that the blocks of consecutive nights are not themselves consecutive: for four (4) consecutive nights in the first, third and fifth weeks of the school holidays at the end of Term 4 in 2019, with the father to advise the mother in writing of these dates by no later than 30 September 2019; and

   (i)commencing with the holidays at the end of Term 1 in 2020:

   (i)for the first half of the school holiday period at the end of each of Terms 1, 2 and 3 in even numbered years; and

   (ii)for the second half of the school holiday period at the end of each of Terms 1, 2 and 3 in odd numbered years,

   (j)commencing with the school holidays at the end of Term 4 in 2020:

   (i)for half of each end of year school holiday period: being the second, fourth, sixth and eighth (if applicable) week in even numbered years; and

   (ii)for half of each end of year school holiday period being: being the first, third, fifth and seventh (if applicable) week in odd numbered years.

   (k)commencing in 2018:

   (i)from 4.00 pm Christmas Eve to noon on Christmas Day in even numbered years; and

   (ii)from noon on Christmas Day to 4.00 pm Boxing Day in odd numbered years;  and

   (l)commencing in 2019: on the child's birthday (if the child is in the mother’s care on that day):

   (i)if a school day: for three (3) hours, from 3.00 pm or after school to 6.00 pm, with the father to collect the child from school; and

   (ii)if not a school day: for four (4) hours from 12.00 pm to 4.00 pm.

   (m)on 2 September 2018 (Father’s Day): from 10.00 am until 3.00 pm; and

   (n)from 2019 onward: from after school Friday until 4.00 pm on Sunday on the weekend on which Father’s Day occurs;  and

   (o)from the date of this Order: by telephone each Monday afternoon, commencing at 5.00 pm and concluding no later than 5.10 pm, with the father to telephone the mother's mobile telephone and the mother to make the child available to receive the call;  and

   (p)from the date of this Order:  by FaceTime each Wednesday afternoon commencing 5.00 pm and concluding no later than 5.30 pm, with the father to telephone the mother's mobile telephone and the mother to make the child available to receive the call.

8. The child’s paternal grandparents are at liberty to attend at any of the supervised time the child spends with his father pursuant to Clause (7)(a) of this Order.

9. From the commencement of the September/October 2019 school holiday period, the operation of Clause (7)(f) shall be suspended during all school holiday periods and shall resume with the child’s weekend time with his father commencing:

   (a)on the first weekend of school Term if the child has spent time with the father in the first half of the holiday period; or

   (b)on the second weekend of school Term if the child has spent time with the father in the second half of the holiday period;  or

   (c)if the child has spent the last week of the school holiday period with the father:  on the second weekend of school Term;  or

   (d)if the child has spent the second last week of the school holiday period with the father:  on the first weekend of school Term.

10. In the event that the child is not otherwise spending time with his mother (pursuant to the terms of this Order) on the following occasions, he shall spend the following time on those occasions with her:

    (a)from 4.00 pm Christmas Eve to noon on Christmas Day in odd numbered years; and

    (b)from noon on Christmas Day to 4.00 pm Boxing Day in even numbered years;  and

    (c)for the weekend on which Mother’s Day occurs;  and

    (d)       on the child's birthday (if the child is in the father’s care on that day):

    (i)if it falls on a school day: from 3.00 pm or after school to 6.00 pm, with the mother to collect the child from school; or

    (ii)if it is not on a school day:  from 12.00 pm to 4.00 pm.

11. During any period when the child is spending time with the father, the child shall communicate with the mother:

    (a)by telephone each Monday afternoon, commencing at 5.00 pm and concluding no later than 5.10 pm, with the mother to telephone the father's mobile telephone and the father to make the child available to receive the call;  and

    (b)from the date of this Order: by FaceTime each Wednesday afternoon commencing 5.00 pm and concluding no later than 5.30 pm, with the mother to telephone the father's mobile telephone and the father to make the child available to receive the call.

12. Neither parent shall enrol the child in any activity which occurs during any time the child is in the other parent’s care without first obtaining the written agreement of that parent.

13. Unless otherwise agreed in writing, the parties continue to engage Dr G as the child’s general medical practitioner.

14. Both parents shall use their best endeavours to follow the reasonable recommendations for treatment of the child as provided by his treating professionals and shall jointly engage such treating practitioners to continue to provide a coordinated treatment plan for the child.

15. The father shall use his best endeavours to:

    (a)encourage the child to use the toilet; and

    (b)follow all reasonable strategies recommended by all the child's treating professionals; and

    (c)follow the rules of the D Contact Centre, and to accept and comply with all directions given by staff.

16. Unless otherwise provided for in this Order or agreed between the parties in writing, all changeovers that do not occur at school shall occur at a public place as agreed between the parties in writing or, failing agreement, outside D Contact Centre, Suburb F.

17. Each parent is at liberty to arrange for another person to collect the child at the commencement of his time with that parent, or to return him at the conclusion of such time, provided that any such person is known to the child.

18. In the event that D Contact Centre is unable to continue to supervise the child’s time with the father:

    (a)the father shall provide the mother with a list of three (3) other Contact Centres available to supervise the time; and

    (b)the mother shall select a Contact Centre from the list provided and notify the father of her selection within seven (7) days of the provision of the list; and

    (c)each party shall, within seven (7) days of the date on which the mother notifies the father of the selected Contact Centre, arrange to attend the first available intake session at that Centre and do all things necessary to ensure that the child’s time with the father at that Centre commences as soon as possible.

19. The father shall pay any costs associated with a Contact Centre’s supervision of the child’s time with him.

20. During the times the child is in their care, the parties shall not:

    (a)engage in any acts of verbal or physical violence or perpetuate any violence on the other party to or in the presence of the child;  or

    (b)       denigrate the other party in the presence of the child;  or

    (c)denigrate each other or the child’s extended family to or in the presence of the child;  or

    (d)consume alcohol to excess;  or

    (e)consume or be under the influence of illegal drugs;  or

    (f)expose the child to any person who is under the influence of illegal drugs;  or

    (g)permit any other person to discuss the proceedings with or in the presence of the child unless such discussion occurs within a professionally conducted therapy session.

21. Each party shall immediately notify the other of any medical emergency relating to the child and shall provide all details and information necessary to enable the other party to attend upon the child forthwith.

22. The parties shall:

    (a)keep each other informed at all times as to their residential address;  and

    (b)keep each other informed at all times of a mobile telephone number on which they can be contacted;  and

    (c)keep each other informed at all times of the names and addresses of any treating medical practitioners, health care practitioners and allied health care providers upon whom the child attends;  and

    (d)inform each other as soon as reasonably practicable about any significant injury suffered by the child or significant illness which necessitates him receiving medical or hospital attention;  and

    (e)keep each other informed at all times of the names and addresses of any educational or child care institution or facility at which the child attends;  and

    (f)take all reasonable steps to remove the child from the presence of any person under the excessive influence of alcohol or under the influence of illegal drugs.

23. By this Order, any medical practitioner, health care practitioner, allied health care provider or hospital upon whom the child attends is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner, allied health care provider or hospital may lawfully provide about the child.

24. By this Order, any educational or child care institution or facility at which the child attends is hereby authorised to provide to each party, at that party’s request and cost, all information about the child’s education, progress and participation in school or child care related activities.

25. The parties shall communicate about significant issues relating to the child via email or text message and shall ensure that each has an operative mobile telephone and email address, the details of which are to be provided and/or confirmed to the other in writing within seven (7) days of the making of this Order.

26. The parties have liberty to provide a copy of the Reasons for Judgment to the Department of Child Safety, Youth and Women and to any therapist upon whom they or the child attends.

27. The Independent Children’s Lawyer is discharged.

28. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3585 of 2015

Mr Varney

Applicant

And

Ms Carne

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Dr G, the child’s General Practitioner, acknowledged during her cross-examination on the last day of the trial that she had compiled her summary of her notes of a consultation on 11 July 2016 on the basis of her assumption that the child had been brought in to see her on that occasion.  

2. If Dr G had not been asked to reflect, and her assumption had been accepted, it is highly likely I would have concluded that the child was present:

   a)when his mother and Dr G discussed, amongst other things, his prior disclosure of alleged child abuse by the father; and

   b)when his mother played to Dr G the audio recording she had made of her conversations with him about this (about which more will be said later); and

   c)when Dr G told his mother that it would be expected she (the mother) do everything she could to protect him, because she (the mother) had significant evidence to support her concerns of abuse by the father.[1]

   [1]          Exhibits 3 and 10.

3. However, the child was not in fact present during that particular consultation.

4. The above is, I think, a very good illustration of the dangers of assumptions. This is particularly relevant to this case, which involves (amongst other things) determining whether the child’s mother has assumed – from the combination of his comments to her, his behaviours and her overarching view of the father’s deficiencies as a person and a parent and her view of the paternal grandmother – that the child has been sexually abused by his father and his paternal grandmother or whether there is a foundation in fact for such assertions.

5. There is no doubt that the mother and the child’s maternal grandmother share in a critical assessment of the father. They also appear to share a critical view of the paternal grandmother, at least about her parenting of the father. 

6. Given the father’s decision to take methamphetamine in June 2016 – apparently to help with weight loss – their reluctance to see him as anything but reckless, impulsive and potentially neglectful of the child’s care is certainly understandable.

7. However, poor decision making does not mean that a parent has sexually abused their child. Recklessness or impulsivity do not, of themselves, mean that a parent has sexually abused that parent’s lineal descendant.

8. Consideration of this primary issue[2] (and the others which, by law,[3] must be the subject of consideration in the determination of those parenting orders which are in the child’s best interests) and additional issues, including whether the child will be at an unacceptable risk of suffering physical harm in the unsupervised care of his father and whether he will be at an unacceptable risk of suffering psychological harm if he continues in the primary care of his mother, occurs within the following factual context.

   [2]The statutory imperative being the need to protect the child from harm from being subjected to abuse: Sections 60CC(2)(b) and 60CC(2A) of the Family Law Act 1975 (Cth).

   [3] See: ss 60CA, 60CC, 60CG(1)(b), 61DA, 65AA, 65D of the Family Law Act 1975 (Cth).

Overview of relevant factual circumstances

1. The child, who is now about five and a half years of age, was born in 2012. His mother (who was born in 1977) and his father (who was born in 1985) commenced cohabitation on 29 July 2011. They separated on a final basis on 20 January 2015, when the child was about two and a half years of age.

2. Neither parent has any child other than B. In fact, the mother thought she was unable to have children.

3. Since separation, the mother and the child have lived with the maternal grandmother in Suburb H. The mother is not working for remuneration, having deferred her online accountancy studies in July 2016. She is in receipt of Centrelink benefits and receives $73.00 per week by way of child support from the father.

1. The father remains living in the former matrimonial home (which is owned by his parents) at Suburb I. He is employed as a driver. He works five days each week (Monday to Friday). He starts early in the morning and finishes between 2.00 pm and 5.00 pm each day. Each of his parents (the child’s paternal grandparents) has told him that they can assist with the child’s day-to-day care if necessary.

2. The residences of the child’s parents are approximately 26 kilometres apart. Consequently, there are no geographical impediments, practical difficulties or expenses associated with the child spending whatever time with each of his parents is found to be in his best interests.[4]

   [4] Section 60CC(3)(e) of the Family Law Act 1975 (Cth)..

What happened after separation in January 2015?

1. From the father’s perspective, the mother controlled his time with the child after separation. He subsequently applied to the Federal Circuit Court on 27 April 2015 for parenting orders.

2. Given what transpired in July 2016, it is relevant to note some of the events which pre-dated the parenting orders made by consent in October 2015.

3. The maternal grandmother said that, in February 2015, the child started having nightmares after visits with his father. From about May 2015, he started to hold his bowels when he thought he would have to be with his father.[5]  On occasion, he would walk in the door after returning from time with his father and immediately wet and soil himself.[6] Further, he sporadically wet the bed after spending time with his father.[7]

   [5] Affidavit of Ms J filed 21 August 2017 at [83].

   [6] Affidavit of Ms J filed 21 August 2017 at [51].

   [7] Affidavit of Ms J filed 21 August 2017 at [50].

4. The maternal grandmother also said that, on occasions after the child spent time with his father he would kick, punch, bite, pinch and generally be aggressive and angry towards her, the mother and the dogs.[8] He would ask “how many days before I have to see Daddy” (from which she concluded he was upset that he had to see his father).[9] On occasion, when overnight time started and the child knew his father was coming to get him, he would hide in his room and run away from his father.[10]  

   [8] Affidavit of Ms J filed 21 August 2017 at [52].

   [9] Affidavit of Ms J filed 21 August 2017 at [64].

   [10] Affidavit of Ms J filed 21 August 2017 at [62].

5. The Department of Communities, Child Safety and Disability Services (the Department)[11] has recorded a total of seven Child Concern Reports[12] in relation to the child since April 2015. On 29 April 2015, the Regional Intake Service received the following information about the child:

   a)he was in his mother’s primary care and his father was having “access” every Sunday for four hours; and

   b)every time the child returns from time with his father, he shows signs of being visibly distressed: whilst toilet trained he walks through the door and soils himself; has nightmares (the frequency and intensity of which is increased after time with his father); is uncharacteristically aggressive and clingy toward his mother after time with his father; and

   c)the mother had described the father’s behaviour as aggressive and intimidating: he had been physically and verbally abusive toward her to the point that she has CCTV footage installed at her home; and

   d)the notifier was aware that the mother had attempted to report “it” to the CPIU (the Child Protection Investigation Unit) but they said they could not investigate as there were no explicit disclosures; and

   e)the notifier was aware the mother had contacted K Group who have “concerns” that the child “exhibits behaviour that is indicative of sexual abuse or trauma”: they offered the mother counselling but she was about to have an intake with another service; and

   f)the mother had attempted to take the child to a child psychologist but that person said it was outside their scope.

   [11]         Exhibit 1: the Magellan Report. 

   [12]Being a note of information received which does not meet the threshold for recording a Notification, that being where significant harm to the child is identified.

6. At that time the Department concluded that, while some of the reported behaviours were “concerning”, there was no child protection history for the family and therefore, no pattern of harm could be established. In addition, the Department concluded that the child was having very limited contact with his father (the person alleged to be responsible for harm to him) and that, whilst his behaviour could be indicative of harm, there was insufficient information to indicate that the harm was as a result of parental action or inaction.

The mother’s diary entry for 2 May 2015: sore penis

1. The mother’s diary entry for 2 May 2015 is:

   dribbling wee 30 minutes after going to toilet. In bath, noticed willy a bit pink near wee hole. The child said willy was sore. Asked if anyone had touched it. He said. “yeah. Daddy got wee on his finger.

2. When asked why she had asked the child if anyone had touched his “willy”, the mother explained that she did so because it was red and pink and it had never been like that before. Whilst she denied she asked him this question because she had it in the back of her mind at that time that he may have been being mistreated, this seems to me to be the more likely explanation – particularly given the information recorded by the Department on 29 April 2015 and that it was only after the parental separation in January 2015 that the child started to spend time away from her.

3. My conclusion that it is more likely than not that the mother was, at this time, concerned about the possibility that the child might be being mistreated when not in her care is buttressed by the fact that, according to her diary notes, she spoke with him the next day about “secrets”.

Diary entry for 3 May 2015: talk to the child about secrets

1. According to her diary entry for 3 May 2015, the mother spoke with the child (then nearly three years of age) about “secrets”. She told him to tell her if anyone told him to keep a secret. Her entry continues: “he looks down”. That she recorded this suggests to me that she interpreted that behaviour as meaningful in some way.

2. During her cross-examination, the mother was asked why she had decided it was then appropriate to speak with the child about “secrets”. She said he had been talking about “secrets” a lot and she was being safe, looking after him and trying to do the right thing. 

3. The mother also said, during her cross-examination, that at or around the time the child was speaking about “secrets” a lot, the father was telling him things like: “don’t tell mummy, it’s a secret”.  The mother said that, when she heard this comment, she did not instantly think that the reference to “secrets” was a reference to something bad or inappropriate. I am somewhat sceptical about her evidence in this respect.

4. The mother denied the suggestion made by Ms Pendergast (for the father) that she had raised the issue of “secrets” with the child in the manner she did on 3 May 2015 because she was concerned that someone had inappropriately touched him. I do not accept her evidence in this respect. It seems to me to be very clear that, at this time, the mother was alert to such a possibility and was inquiring of the child in the manner in which she did on 2 and 3 May 2015 in an attempt to ascertain whether anything inappropriate was happening to him. After all, if the information recorded by the Department on 29 April 2015 is accurate, the mother had by then contacted K Group and had been told that organisation had “concerns” that the child “exhibits behaviour that is indicative of sexual abuse or trauma”.

5. Whilst I do not think that there was anything inappropriate in the mother’s decision-making at this time, it indicates to me that it is much more likely than not that she was then anxious about the child’s care when he was away from her and in the care of his father.

6. I am not persuaded by the mother’s evidence that, as at May 2015, she did not care about the content of whatever “secrets” the child and his father had. I think it much more likely than not that, by speaking with the child about secrets and by emphasising to him that he could tell her anything, she was conveying to him that he and his father should not have any secrets. As noted, at this time, the father was – to the mother’s knowledge – telling the child that he should not tell his mother whatever they were talking about and that it was “their secret”. Is it any wonder that, in such circumstances, the child put his head down during the mother’s discussion with him about secrets? Is it any wonder that his behaviour was unsettled and/or that he began to manifest signs of anxiety and stress? After all, a not quite three year old was being told one thing by one parent (namely, to keep whatever it was a secret) and the complete opposite by the other (namely, to tell if he was asked to keep a secret).

7. The mother’s diary entry for 3 May 2015 also outlines that, after she had dried the child, she asked him if anyone touched his “willy”. According to her diary entry, he said “maybe. Maybe [L] did. Maybe someone else”.

8. That the mother returned to the topic of the child’s “willy” being touched by anyone after he had told her, the night before, that his father had touched it and “got wee on his finger” certainly suggests to me that the mother was somewhat focused upon, and concerned about, this issue at that time. It is, I think, a further indicator that she was anxious about the child’s care when he was with his father.

9. I note, in passing, that parental touching of the genitals of a not yet three year old child, whose toilet training was a “work in progress” until at least about April 2015, seems to me to be highly likely to have occurred frequently. I suspect it is much more likely than not that both of the child’s parents have touched his genitals on numerous occasions and come into contact with his faeces and urine on occasions as a consequence.

The child sees Dr M: 4 May 2015

1. The mother took the child to see Dr M on 4 May 2015.  According to that practitioner’s notes,[13] she told him the child had a painful penis for “2/7” on return from staying overnight with his father (with whom he stayed weekly). She said the parents had separated “3/12” years ago; that there was conflict and they were going through the Courts. The mother told the doctor that the father was aggressive when he picked the child up and dropped him off and that she had called the police “last week” with concerns regarding “abuse”; she said it had been suggested to her that she phone K Group, who informed “DOCS”.  The doctor records that the mother had been referred to a “Child Protection Officer”.

   [13]Exhibit 3 (Tender bundle; “AJG-4”).

2. Dr M noted that the mother was concerned about the child’s penis: the tip was red and he had difficulty urinating; he recorded that the child had urinated in the bath previously, but seemed better on the day of presentation.

3. Having examined the child, Dr M noted:

   Minimal redness of foreskin which is not particularly tight and can be retracted back over glans. ABdo and inguianl region soft. – Likely balanitis that is resolving. Advised re hygiene. Mum concerned about possibility of abuse, whilst not dismissing this there is no specific evidence of this today but I have documented her concerns and advised to watch for a particular pattern in the future.

4. Balanitis is an inflammation of the foreskin and head of the penis. According to Dr G, it is not uncommon for the age group in which the child was then.  As I understand it, its causes include infection, poor hygiene and harsh soaps; its symptoms include pain and redness. 

5. That the mother specifically raised her concern about the possibility that the child was being abused with Dr M in May 2015 makes it clear that such concern arose well before the child’s reported comments to her in July 2016.  Such concern also occurred well before the parties entered into consent orders in October 2015.

6. The mother’s evidence – which I accept in this respect – is that she took up Dr M’s advice “to watch for a particular pattern in the future”.

The mother’s diary entry for 12 May 2015: the child likes staying at “daddies”

1. According to the mother’s diary, the child told her, on 12 May 2015, that “me like staying at daddies”. She asked: “did daddy ask you if you wanted to stay?” and notes that the child “put his head down”. It seems to me to be more likely than not that, when the child told his mother that he liked staying at his father’s, she assumed that the father had told him to tell her that.

2. During her cross-examination, the mother denied that, by May 2015, she was concerned the child may have been withholding information from her that was relevant to whether he had been inappropriately touched in some way. However, her diary entry for 13 May 2015 outlines that, at bedtime, she returned again to the subject of “secrets” and told the child that he could tell her anything and she would not be angry. She noted he put toys in front of his face and “hid”. That the mother interpreted the child’s actions in the manner in which she did certainly suggests to me that it is likely she was starting to consider he had some secret that he was not telling her.

3. Despite all of these events, it seems that the child’s parents had started to communicate constructively about issues relating to him. For example, on 20 May 2015, the father accepted the mother’s suggestion that he allow the child to take his toys with him when he moved between them because that would cause him less anxiety; further, the father told her that the child would not tell him when he needed to go to the toilet and agreed with her suggestion that the child might feel scared to do so.

The mother takes photos of the child’s penis

1. The mother noted in her diary that, on 3 June 2015, the child wet himself three times. She also recorded that: “willy tip red last night in bath. The child was saying it was sore. Took photo”. 

2. These observations and complaints seem to me to be very similar – if not identical – to the matters recorded in the mother’s diary on 2 May 2015, which led to the 4 May 2015 consultation with Dr M.

3. During her cross-examination, the mother said she took the photo because she wanted to show the doctor that the tip of the child’s penis was red and she did not know if it would still be like that by the time the child saw the doctor. However, Dr G’s evidence was that the child’s medical notes do not contain any reference to a photo; further, she said that, if a photo had been provided, the practice procedure would have been to keep a copy or record of this.

4. In any event, the mother accepted during cross-examination that the child had had a red penis intermittently. She appeared to me to link this occurrence to his time with his father because she clearly said it happened after he returned to her care from spending time with his father.

5. However, even if this is correct, the presence of redness on the child’s penis does not of itself indicate that he was being sexually abused by his father, especially given his medical history of balanitis.

6. According to the maternal grandmother, quite often after the child had a bath or had been cleaned up after soiling himself, he would run out with no underpants on and stick his bottom up in the air in front of her and spread his “bum” cheeks apart.[14] She also said that, on several occasions, she saw the child ‘masturbating’ frequently after returning from visits with his father[15] – she first saw this in about July 2015 and last saw this in August 2016; from about June 2015 onward, he would run around the house naked, grab his penis and thrust it forward with a hip movement, which caused quite a “commotion”; he would bend over and spread his (buttock) cheeks directly in front of her: she told him not to do that and put a towel around him.[16] These behaviours stopped in or around July 2016.

   [14] Affidavit of Ms J filed 21 August 2017 at [46].

   [15] Affidavit of Ms J filed 21 August 2017 at [48].

   [16] Affidavit of Ms J filed 21 August 2017 at [60].

7. Further, according to the maternal grandmother, in July 2016, the child was upset at having to go see his father and hit and hurt himself (thereby exhibiting “self-harming” behaviour).[17] On another occasion, he had a tantrum, which included him saying that he did not want to go to his father’s, before his father collected him.[18]

   [17] Affidavit of Ms J filed 21 August 2017 at [70].

   [18] Affidavit of Ms J filed 21 August 2017 at [71].

Dr N’s report

1. As part of the proceedings commenced by the father in the Federal Circuit Court, the parties were interviewed by Dr N on 26 August 2015 (about seven months after their separation).

2. The mother says she provided Dr N with “numerous examples” (which included the child awakening during the night, falling out of bed, having stomach aches, enuresis, encopresis and diarrhoea, hitting her and their small dog, being clingy, crying and screaming, calling out in his sleep and vocalising that he was going to kill her) to illustrate her perception that the father was the cause of the child’s described emotional and behavioural difficulties.[19]

   [19]Family Report of Dr N dated 14 September 2015 at [62].

3. Given this, it seems clear the mother’s contention that there is a causal connection between the child’s interaction with his father and the child’s emotional and behavioural difficulties was an issue which predated the parties’ agreement about the terms of what was (presumably) intended to be a final parenting order.

4. Dr N’s Family Report was filed on 14 September 2015. According to its contents, as at the date of interview, the child was spending time with the father each Tuesday afternoon and, on an alternating basis, between 10.00 am and 5:30 pm on Saturday (first week) and 10.00 am Saturday until 10.00 am Sunday (second week).

5. That is, at three years of age, the child was being asked to manage transitioning four times each week between his parents who were in litigation about the appropriate parenting arrangements for him.

6. Despite the information the mother provided, Dr N concluded she had not made it clearly apparent to him how the father was the cause of the child’s emotional and behavioural difficulties.[20] He recommended that:

   a)the child live with his mother and, until he turned five (which occurred in June 2017), spend time with his father from 9.00 am Saturday until 5.00 pm Sunday each alternate weekend and, on the other weekend, from 10.00 am until 5:30 pm Saturday (that is: for one overnight each fortnight); and

   b)once the child turned five years of age, he spend equal time with his parents on an alternate week basis; and

   c)it was appropriate for the child to have the opportunity to communicate by telephone with the parent with whom he was not then living.[21]

   [20] Family Report of Dr N dated 14 September 2015 at [113].

   [21] Family Report of Dr N dated 14 September 2015 at [115].

The 20 October 2015 final parenting Order

1. Judge Howard made final parenting orders by consent on 20 October 2015. These orders provided that the child’s parents have equal shared parental responsibility for him; that the child live with his mother and spend time with his father as agreed or, failing agreement, as follows:

   a)until he turned four (June 2016): for one overnight stay per week; and

   b)between June 2016 and June 2017: for three nights per fortnight; and

   c)between June 2017 (when the child turned five) and June 2018 (when the child turns six): from Friday afternoon until Tuesday morning (that is: for four nights each fortnight); and

   d)between June 2018 (when the child turns six) and June 2019 (when the child turns seven): from Friday afternoon until Wednesday morning (that is:  for five nights each fortnight); and thereafter

   e)from June 2019 (when the child turns seven): each alternate week.

A brief overview of what happened after 20 October 2015

1. The parties implemented the terms of the October 2015 Order until 2.27 pm on 15 July 2016, when the mother sent the father a text message in which she stated that, as the child had told her that his father was touching his private parts, she did not agree to their son spending time with him that weekend.

2. The father’s immediate response to that text message was to tell the child’s mother he wiped the child’s “bum” up to 10 times a visit and that, if the child was saying he was touching his private parts, it was an “absolute lie”. Given the internal inconsistency in the father’s response, it is clear that his latter assertion carried with it the implication that the “absolute lie” to which he was referring was any suggestion that he had inappropriately (as opposed to “in the usual course of carrying out parenting duties”) touched the child’s private parts.

3. The father’s explanation did not dissuade the mother. She did not take the child to the changeover and he did not spend time with his father that weekend/day. He has not spent any unsupervised time with his father since July 2016.

4. As at 15 July 2016, the child was spending time with his father for three nights each fortnight: namely, from Tuesday afternoon until 6.00 am Wednesday morning in “week 1” and from Friday afternoon until Sunday afternoon in “week 2”.[22] This regime had only started when he turned four on 12 June 2016. 

   [22]         Affidavit of the father filed 31 August 2017 at [27] and [28].

5. Between early July 2016 and about mid/late October 2016, the child did not spend any time at all with this father. They started to spend supervised time together at D Contact Centre (the Contact Centre) in about mid/late October 2016.[23]

   [23]This seems to me to be the best I can do given the evidence of the mother, the father and Ms C, (Contact Supervisor) about this issue, all differ.

The current interim parenting Order

1. On 24 October 2016, Judge Howard appointed an Independent Children’s Lawyer and transferred the proceedings to this Court. He also made interim parenting orders (by consent).  The October 2016 Order provides that the child live with his mother and spend supervised time, at the Contact Centre, with his father for two and a half hours each Saturday. The paternal grandparents had liberty to attend the Contact Centre on one occasion every three weeks.

2. Unfortunately for the child, a dispute arose between his parents about how to interpret that part of their agreed order which permitted him to see his paternal grandparents when he saw his father. I consider it clearly established by the mother’s evidence during cross-examination that her objection to the paternal grandparents’ attendance during the child’s supervised time with his father was because her focus was upon ensuring that there was opportunity for the father’s interactions with the child to be observed so as to see whether the father could interact with the child “properly”.

The competing proposals

The father

1. The father seeks an order according him sole parental responsibility for major long term issues relating to the child. He seeks that the child live primarily with him and spend time with his mother each alternate weekend (from 3.00 pm Friday until 5.00 pm Sunday) and during ‘special’ days. He proposes the child and his mother communicate by telephone. The Case Information document[24] does not contain any proposal for the child to spend block time with his mother during school holiday periods.

   [24]         Filed 18 October 2017.

2. If his primary position does not find favour, the father proposes that the child live with his mother and spend time with him on an unsupervised basis – initially, for three hours per week, but increasing such that, by June 2018, he is spending five nights per fortnight and half of each school holiday period in his care.

The mother

1. The mother proposes that the child live with her. She advances that, if the Court finds that the father poses an unacceptable risk to the child, the child should not spend any time and should not have any contact (direct or indirect) with his father.

2. If the Court does not find that the child will be at an unacceptable risk of harm if he spends time with his father, her position oscillated between saying that she could not countenance or think of what should happen to saying that the child should spend supervised time with him, once a fortnight or a month. 

3. Despite this, Mr Balzamo (who appeared for her) submitted that, if the Court did not find that the father posed an unacceptable risk to the child, the mother adopted the position of Mr O (as expressed in his second report) and as expressed generally in the submissions prepared for, and made on behalf of, the Independent Children’s Lawyer. That is, Mr Balzamo submitted that the mother accepted that, if the Court rejected her primary position, then the recommendations made by Mr O and the Independent Children’s Lawyer about those orders which should be made are appropriate.

4. The mother’s evidence was that she did not know how she would deal with an order in those terms. Despite this, Mr Balzamo also submitted that, whilst the mother may have difficulty in accepting orders in such terms, she will abide them.

5. Whatever the Court’s conclusion about the allegations that the father sexually abused the child, the mother seeks sole parental responsibility for major long term issues relating to the child. If the Court does not find that the father poses an unacceptable risk to the child, she proposes that she should be required to seek the father’s input about any decision about a major long-term issue, to consider his response and then to advise him of the decision she has made.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer proposes[25] that the child live with his mother; that the parents have equal shared parental responsibility for the major long term issues relating to the child; and that, in the event the Court concludes the child is not at an unacceptable risk of harm in his father’s care, the child spend time and communicate with him as follows:

   a)until 30 June 2018 (when the child will be six years of age): each Saturday on a supervised basis (at D Contact Centre) for no longer than three hours, with the possibility that time occur at a public park or shopping centre and the paternal grandparents to be at liberty to attend every three weeks; and, thereafter

   b)from 1 July 2018 until 1 June 2019 (when the child will be seven years of age): beginning with each Saturday from 10.00 am to 3.00 pm on an unsupervised basis, with the child’s time with his father to increase over this period so that it reaches one overnight each alternate weekend;  and, thereafter

   c)from 1 June 2019 (when the child will be seven years of age): each alternate weekend from Friday afternoon until Sunday night and for half of each school holiday period (with this time to commence in the June/July 2019 school holiday period); and

   d)each Monday afternoon: by telephone, for 10 minutes, commencing at 5.00 pm; and

   e)each Wednesday afternoon: by FaceTime, for 30 minutes, commencing at 5.00 pm.

   [25]         As outlined in the Case Summary filed 19 October 2017.

2. In the event the Court concludes that the father poses an unacceptable risk of sexual harm to the child, the Independent Children’s Lawyer proposes that the child not spend any time with him.

General assessment of credit

1. The mother accepted that, when she applied to receive the sole parent pension in or about September 2012, she failed to disclose on her application that she was living in a de facto relationship with the father. Whilst she accepted that she had lied on her application form, she asserted that she “had to”. As I understood the thrust of her evidence, the suggestion was that she “had to” lie about her relationship status because the father did not provide her with sufficient financial support. Given that the parties were then living in a home purchased by the father’s parents (in respect of which they were paying rent) and the father was working in paid employment, I am not necessarily persuaded by this explanation.

2. Such conclusion does not, of itself, compel the conclusion that the mother lied about the comments she reports the child to have made to her (as discussed below). However, I am persuaded to be circumspect in my assessment of the entirety of her evidence in these proceedings, particularly having regard to the above and the following:

   a)the difference in her accounts of events said to have occurred on 7 July 2016:

   i)in her September 2016 affidavit[26] she said that the child was playing with his penis as if he was masturbating and when she asked “how come you keep doing this”, he said “because that’s what Daddy does to me”; whereas

   ii)in her August 2017 affidavit[27] she said the child “continually masturbated during the day” and, when asked what he was doing, said “this is what Daddy does to me”; when she asked what he meant, he said “Daddy tells me to do this to myself”.

   b)the difference in her accounts of events said to have occurred on 11 July 2016:

   i)in her September 2016 affidavit[28] she said that she walked into the child’s bedroom to find him putting dinosaur toys up his bottom; whereas

   ii)in her August 2017 affidavit[29] she said that she walked into the child’s bedroom to find him putting dinosaur toys up his bottom with an erection and he told her that he was doing it “because I like it”.

   c)the fact that, when first asked by Ms Pendergast (Counsel for the father) whether all of the words written in her diary were written by her the mother said “yes” but, when Ms Pendergast then specifically asked her whether her mother (the child’s maternal grandmother) had ever written in the diary, she immediately said she thought she did on one occasion.

   [26] Affidavit of the mother filed 21 September 2016 at [7].

   [27] Affidavit of the mother filed 21 August 2017 at [40].

   [28] Affidavit of the mother filed 21 September 2016 at [12].

   [29] Affidavit of the mother filed 21 August 2017 at [45].

3. The discrepancy of account in relation to what is described as having occurred on 7 July 2016 is particularly relevant given Dr G’s evidence that a lot of four year old boys play with their penis (a “normal” behaviour which might be taken as masturbation but is not in fact that).

4. I consider that the father likely downplayed the extent of the arguments which occurred during the parties’ relationship. His failure to disclose his use of illicit drugs in June 2016 demonstrates that he has the capacity to withhold relevant information which is adverse to him. Further, his use of the word “sure” in answering questions asked of him during cross-examination was accompanied by a somewhat dismissive tone.  On occasions, I found his answers flippant.

5. These conclusions do not, of course, mean that it is more likely than not that the father sexually abused the child in the manner alleged in these proceedings (or at all).  They do mean, though, that I have also been circumspect in my assessment of the entirety of his evidence.

6. There was nothing in the manner in which either the maternal grandmother or the paternal grandmother gave their evidence to suggest that either was generally untruthful.

7. To the extent that it is necessary, my assessment of the evidence given by other witnesses in the proceedings will be expressed during my discussions of their evidence.

Some uncontentious matters

1. As noted earlier, the child has not spent any unsupervised time with his father since July 2016.

2. When the child was interviewed by police on 13 July 2016, he made no disclosures of any kind to suggest that he had been subjected to sexual abuse or inappropriate touching by his father. He made no disclosures that his paternal grandmother had behaved inappropriately in front of him or to him (about which allegation more will be said later).

3. The child has not made any disclosures of sexual or other abuse by his father or paternal grandmother to the relatively many medical and allied health professionals upon whom he has attended. For example, there is no evidence to suggest he made any comment capable of amounting to a disclosure to Dr P (a child psychologist) whom he saw on 11 occasions between August 2016 and March 2017; there is no evidence to suggest he made any comment capable of amounting to a disclosure to Dr Q (a psychologist) whom he saw on seven occasions between May 2017 and October 2017; there is no evidence to suggest he made any comment capable of amounting to a disclosure to Dr R (a child psychiatrist) upon whom he has attended on 10 occasions and there is no evidence to suggest that he made any comment capable of amounting to a disclosure to Dr S (a paediatrician) whom he has seen on about three occasions.

4. Further, it is accepted that the child has not made any disclosures to Ms T (his kindergarten teacher, who supported him in dealing with the various difficulties he experienced when he started kindergarten in January 2016 and during his attendance there in 2017) about his father or paternal grandmother treating him inappropriately.

5. The child did, however, make comments amounting to an apparent disclosure to Dr G, his treating general practitioner, in April 2017.

6. There is no dispute that the child’s father has previously touched the child’s genitals. He is clear in saying that, in and around early July 2016, following discussions between the parents about how to manage and assist the child with his toileting needs, he frequently changed his son’s underwear and pants after an ‘accident’ and, in the course of cleaning him up on these occasions, wiped his bottom, his genitals and his genital area.[30]

   [30] Affidavit of the father filed 31 August 2017 at [43].

7. What is in dispute is whether, in touching his son’s genitals and genital area, the father was seeking sexual gratification (such that his interaction was sexually abusive of his son and completely inappropriate) or was simply cleaning him (in an appropriate discharge of a parenting responsibility).

8. As at late August 2017, the father had not been contacted by the police about the allegation/s that he had sexually abused the child. As at late August 2017, the father had not been contacted by the Department about any notification or complaint made by the mother which relates to the allegations that he has sexually abused the child or in relation to his parenting of the child.[31]

   [31] Affidavit of the father filed 31 August 2017 at [45].

What else happened between 20 October 2015 and July 2016?

1. As noted earlier, there is no dispute that the terms of the October 2015 Order were largely complied with until July 2016. Whilst the mother ensured the child spent unsupervised time with his father, she outlines a number of matters which caused her concerns about his safety whilst in his father’s care.

2. For example, she says that, when the father arrived to collect the child for their time together on 21 November 2015, he (the father) appeared to her disoriented, would only look at the floor and could not speak. Despite this and despite feeling uncomfortable leaving the child with him, she gave the father “the benefit of the doubt” and allowed the child to spend overnight unsupervised time with him.[32] When the child returned to her care the next day, his fingers were red and sore. She thought they looked burned.  She says that, whilst the child told her he burnt them on his grandmother’s stove, the father emailed her later that evening to tell her it was from “monkeying around the pool”.[33]

   [32] Affidavit of the mother filed 21 August 2017 at [6].

   [33] Affidavit of the mother filed 21 August 2017 at [7].

3. Whatever the cause, I am not persuaded that the father deliberately caused injury to the child’s fingers or that he deliberately failed to ensure that he was not harmed on this occasion.

4. The mother also says that, on 9 December 2015, when the child arrived home from his overnight unsupervised time with his father, he complained of a sore hip: when she checked this, she saw his hip was swollen and had skin off. When she asked the father about this, he initially told her it happened during the child’s time with her and finally said it might have happened at the park; however, the child told her he fell off the trampoline.[34]  However the child hurt his hip, I am not persuaded that it was as a result of his father’s deliberate actions rather than the result of play by an often boisterous child.

   [34] Affidavit of the mother filed 21 August 2017 at [8].

5. The mother also says that, on 2 February 2016, the father emailed her to tell her that the child had bruised his eye on a handle and that their son fought against sitting on the toilet. She says the child told her the bruise under his eye was from the toilet roll holder.[35] Each account of the manner by which the child suffered an injury on this occasion seems to me to be suggestive of an accident; neither persuades me that the father deliberately caused the child harm.

   [35] Affidavit of the mother filed 21 August 2017 at [9].

6. What is, however, clear is that these injuries caused the mother to have serious concerns about the father’s capacity to care safely for the child. In fact, the Regional Intake Service of the Department received the following information about the child from an unidentified notifier on 4 February 2016:

   a)the mother had said that the child returned from his father’s care with burns to his hand: when he was asked about this injury, the father explained it occurred whilst the child was in the pool but, when the mother questioned the child, he revealed he had been burned when he placed his hand on a hot stove; and

   b)the mother had advised that the child returned from his father’s care with a bruise under his eye: when asked he advised that the child had run into a doorknob; however, when the mother questioned the child, he said he had hit himself on the toilet roll holder; and

   c)as both parents were in the process of toilet training the child, the injury from hitting the toilet roll holder may have been as a consequence of the father placing too much pressure on the child to go to the toilet: further, the mother has noticed that the child refrains from going to the toilet for lengthy periods of time, which results in him having stomach cramps and she has also seen him soil himself after his father departs at changeovers; and

   d)the mother was concerned about the food the child was being given whilst in his father’s care and had reported that he has a scar on his hip which could not be explained; and

   e)the mother had reported that the kindergarten had told her that the child was distressed, crying and unable to self soothe: he displayed a lack of ability to interact and was continually sucking his fingers – behaviour which the kindergarten had said could be the result of trauma; and

   f)the kindergarten had recommended the child reduce the length of time there and complete half days as they believed he may not be ready for full-time care; and

   g)the mother had noticed the child’s fingers were “somewhat deformed” because he sucked them and he was being supported by an occupational therapist (who was concerned for his emotional and learning capabilities and who had suggested that he be assessed for autistic spectrum disorder) who had referred him for further support from “V Group”; and

   h)the mother had said the child watched violent movies whilst in his father’s care and had said things to her which included “I’m going to stab you in the back”, “I want to see you die” and “I’m scared of daddy”; and

   i)the mother had said that the child returned tired from his father’s care and found it hard to sleep at her home and, in the past, had woken from his sleep screaming; and

   j)the mother had said that the child’s injuries were as a result of the father’s lack of supervision and parenting skills; and

   k)the mother had said she was not willing to make a report to the Department because she was in fear for her life and believed the father had the ability to carry out violent acts toward her; and

   l)a current Domestic Violence Order is in place: the father has access to firearms (held at his parent’s residence) and is a hunter and was also previously a professional shooter.

1. If there is an order that the child’s parents are to share parental responsibility for him and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to him, such order requires the decision to be made jointly by his parents.[228]

   [228] Section 65DAC(2) of the Family Law Act 1975 (Cth).

2. During his cross-examination the father said he did not think he and the mother could agree about major long-term issues relating to the child; whilst he said he would like to think that they could reach agreement about such issues, he also thought that they could not have a future working relationship about them. This evidence was of a similar nature to other evidence given by him when, having accepted that he had previously failed to accept the mother’s suggestions and/or advice about the child because they emanated from her, he said that, as he no longer had that view, he was willing to try to accept advice from her about issues relating to the child. Neither sentiment (which I have highlighted in italics) fills me with any confidence that these parents are likely to be able to in fact agree about major long term issues relating to the child.

3. My lack of confidence in this respect is buttressed by the father’s evidence when asked to explain why he had sought an order for sole parental responsibility: he said he had done so because he was concerned the mother was not “able to see” what was really happening with the child, she had previously changed medical practitioners when they proffered opinions which did not aligned with her views and he was confident he was going to make good decisions for the child. The latter assertion must, in my view, be taken with a large grain of salt given his decision in June 2016 to use amphetamines, particularly when he had previously suffered drug-induced psychosis earlier in his life.

4. I have concluded, therefore, that this is not a case in which the parents have demonstrated the capacity for joint decision-making. Further, it is highly unlikely they could, in the future, make decisions jointly and it is also highly unlikely they would be able to make a genuine effort to come to joint decisions. The goodwill and trust required for effective parental communication and co-operation are completely absent here.

5. For these reasons, then, I consider an order for equal shared parental responsibility is not an order which is in the child’s best interests. Rather, I am satisfied it is in the child’s best interests that the mother have sole parental responsibility for major long term issues relating to him, other than in relation to his name and changes to his living arrangements which make it significantly more difficult for him to spend time with his father. Whilst I acknowledge that this restriction was not the subject of interchange during the trial, I have concluded that such limitation is appropriate and in the child’s best interests when the other orders made are considered in their entirety against the background of the mother’s evidence that she does not know how she will cope with aspects of them.

6. It is, however, also appropriate and in the child’s best interests that the mother  consult with the father and seek input from him about decisions falling within the exercise by her of parental responsibility.

Living and time orders

1. During his evidence, the father outlined that, if the court considered the mother to be “delusional” in making the allegations that he sexually abused the child, then the child should live with him but, if such a finding was not made, he accepted that the child should live primarily with her. Whilst I have not concluded that the mother was “delusional”, this is not the basis for my decision that it is in the child’s best interests at the moment that he remain living in the primary care of his mother. As, I hope, is apparent from the reasons already expressed, the impact of a change to living with his father at this time is, in my view, something which is simply too much to ask of the child and not something that could be seen, at this stage, to be beneficial to him.

2. I accept that the father has demonstrated an observable change in the way he has managed the child’s behaviour at the Contact Centre.  I also accept that, finally, he has accepted recommendations made by the child’s treating medical practitioners.  It is, I think, important to record that the child is the only person who will suffer if the father decides in the future not to follow such reasonable recommendations. 

3. Given the findings I have made about risk and about the improvement in the father’s parenting capacity and ability to manage the child’s interactions with him and generally, I consider that it is more likely than not that the child will benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with his father. I note that the mother told Mr O in September 2017 that she thought the child loved his father but felt safe at the moment in the way that he was spending time with him.

4. Despite this, given the findings I have made about risk, I accept Mr O’s evidence that there appears to be no reason to continue the imposition of supervision over their time together, particularly in the long-term.

5. I also consider that an indefinite continuation of supervision over the child’s time with his father will likely impede the child’s ability to develop a full and wide-ranging relationship with his father and members of his extended paternal family. Such impediment is not, in my view, something which is in his best interests. Consequently, I consider that affording to the child the opportunity to spend unsupervised time with his father on a gradually increasing basis will best afford him the opportunity to continue to develop and maintain a meaningful relationship with his father and members of his extended paternal family.

6. I note that, on the premise that the Court considered that unsupervised time with his father was in the child’s best interests, Mr O recommended an arrangement whereby the child could spend enough time with his father to develop a meaningful relationship with him, but not so much time as would require significant communication between his parents.[229] I have taken this evidence into account in my formulation of the orders I consider to be in the child’s best interests at this point in time.

   [229]Updated Family Report dated 19 October 2017 filed 27 October 2017; Exhibit 9 at 7.13.

7. I accept Mr O’s evidence that, given the child has spent limited periods of time with his father for a significant period of time to date and would likely feel insecure spending extended time away from his mother, the introduction and duration of unsupervised time between the child and his father should be introduced in a “staggered” way.[230] I have taken this into account in my formulation of the orders I consider to be in the child’s best interests at this point in time.

   [230]Updated Family Report dated 19 October 2017 filed 27 October 2017; Exhibit 9 at 7.15.

8. In formulating the orders that I have conclude are in the child’s best interests at the present time, I have also taken into account his awareness of his parents’ antipathy towards each other (he told Mr O on 26 September 2017 that “my mum doesn’t like my dad and my dad doesn’t like my mum”) and that, as at that time, his view was that he would just keep seeing his father at the Contact Centre - although he was unable to explain to Mr O why he felt like that.

9. In arriving at my conclusion about the manner and timing of the child’s introduction to unsupervised time with his father, I have also taken into account Mr O’s evidence about the importance of providing the child with a level of consistency in his care regime so as to best support him in his transition to Prep this year. Given this, I have concluded that it is in the child’s best interests that supervision over his time with his father remain until the end of first term holidays this year and that, thereafter, he spend unsupervised time with his father in the manner provided for in the Orders I will make. I have also taken into account that the child spent reasonably significant periods of unsupervised time, including overnight time, in his father’s care in the period from the parental separation in January 2015 until July 2016 and that it is likely the mother will likely need some time to process and adjust to the conclusions I have reached and the orders I will make.

10. However, I also consider that it is important to attempt to ensure that the process of removing the supervision from the child’s time with his father is not so drawn out that the child’s likely stress around this change is increased.

11. Consequently, at about the Easter 2018 school holiday period, the child will be afforded the opportunity to spend unsupervised time (for about the same duration as he currently spends on a supervised basis) with his father and, thereafter, via progressively increasing time, will, in the future, have the opportunity to experience his father collecting him from school on occasion and will be able to spend time with him on days which are weekdays and those which occur on weekends. Further, in the future, the child’s father will thereby have the opportunity to be involved with, and participate in, the child’s activities which occur at each of these times. In the future, the child will also have the opportunity to spend holiday time with his father. In making the Orders I have about holiday time, I have taken the child’s particular needs into account.

12. I note that, in the future, the child will have the opportunity to spend the entirety of the weekend on which Mother’s or Father’s Day falls with his mother or father respectively. It is my intention that the time on these “special” weekends does not disrupt the regime established by the other terms of the Order I will make (that is, from 2019 onwards, the child will have two weekends in a row in his father’s care around the Father’s Day weekend and will not see his father for two weekends in a row around the Mother’s Day weekend). I consider approaching the issue of these “special” days in the manner I have to be in the child’s best interests because it allows him the full weekend on those celebratory occasions with each of his parents and also means that changeover at the start of the time with his father can occur via school rather than result in an additional interaction between his parents.

13. Orders which afford the child these opportunities are reasonably practicable, given that it was not suggested by either parent that there are any particular practical difficulties and expenses associated with the child spending time and communicating with each of them, or that any such difficulty or expenses which exist are such as to substantially affect his right to maintain personal relations and direct contact with both of them on a regular basis.[231]

    [231] Section 60CC(3)(e) of the Family Law Act 1975 (Cth).

14. It also seems to me to be appropriate and in the child’s best interests that he continue to see Dr G, particularly given the father’s evidence that he would take the child to see her if he was unwell.

15. The mother’s evidence is, generally speaking, that the child is oppositional to speaking with his father on the telephone.  Her evidence contains a number of examples of the child yelling “no” and running outside when she tells him that his father is on the phone.  Difficulties have also attended the father’s attempts to communicate with the child via FaceTime.  For example, the mother’s evidence is that, on occasion, the father was critical of the child’s haircut, which made the child upset and he ended the call.

16. The father’s evidence is that, on occasions, the mother has simply told him (in the child’s presence) that the child did not want to talk to him but, when he simply started to talk to his son, the child would happily chat with him. On other occasions, the mother encouraged the child to speak with him by telephone.

17. Others may consider that the difficulties associated with telephone and FaceTime communication between the child and the parent with whom he is not then spending time outweigh the likely benefits to the child of the opportunity to engage in the same.  However, I have concluded that, whilst likely to continue to be attended by some difficulties, telephone and FaceTime communication is likely to provide the child with an additional opportunity to continue to develop his relationship with his father and members of his extended paternal family and to engage with his mother when, in the future, he is spending holiday time with his father.

18. I reiterate that, in formulating the balance of the orders I intend to make, I have attempted to strike a balance between the importance of enabling the child to have the opportunity to spend unsupervised time with his father and the importance of affording him the benefit of not asking that he deal with too many changes to his current parenting regime.  I have also taken into account the mother’s likely reaction to the Reasoning I have expressed and the conclusions I have reached but, in doing so, have also considered the importance to the child of returning him to that type of interaction with his father which predated July 2016.

19. For the reasons expressed, I make orders in terms of those outlined at the commencement of these Reasons.

I certify that the preceding five hundred and sixty-one (561) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 March 2018.

Associate:                 

Date:    9 March 2018