Weston and Weston

[2008] FamCA 124

FAMILY COURT OF AUSTRALIA

WESTON & WESTON [2008] FamCA 124

FAMILY LAW – CHILDREN – Parenting orders – issues related to mother’s history of alcohol and drug abuse - step-father’s discipline of the child - allegations of violence between parents during their relationship - attitude of parents towards the other and their willingness to promote the other’s relationship with the child - their insight into the deleterious effect of their sustained conflict on the child - the child’s attachments and any risk of harm to the child of sexual abuse having regard to unresolved allegations against him of sexual abuse of minors – failure of parents to establish effective means of communication – sole parental responsibility to mother – child to live predominantly with mother.

Family Law Act 1975 (Cth)

APPLICANT: Mrs Weston

RESPONDENT: Mr Weston

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: CSC 795 of 2007

DATE DELIVERED: 29 February 2008

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Moore J

HEARING DATE: 22, 23, 24, 25, 26 October 2007 & 18, 22 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITOR FOR THE APPLICANT: Murray Lyons

COUNSEL FOR THE RESPONDENT: Ms Benson

SOLICITOR FOR THE RESPONDENT: Lee & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Willis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The child R born … November 2000 live with the mother.

2. The mother have sole parental responsibility for the child.

3. The father spend time with and communicate with the child as follows unless otherwise agreed in writing:

   a.each alternate weekend commencing Friday after school until Monday morning at the commencement of school with the changeover to occur at the school;

   b.for the first half of each Queensland gazetted school holiday period in 2008 and each alternate year thereafter;

   c.for the second half of each Queensland gazetted school holiday period in 2009 and each alternate year thereafter;

   d.          from 10am to 5pm on Father’s Day;

   e.on the father’s birthday from 10am to 5pm if such day falls on a non school day and from after school until 7pm if such day falls on a school day;

   f.on the child’s birthday from 10am to 2pm where such day falls on a non school day and from after school until 6pm where such day falls on a school day;

   g.by telephone one evening each week as agreed between the parties but failing agreement each Monday between 6pm and 7pm with the mother to initiate the call (and no other time save and except that in the case of a true emergency, each parent may telephone the other parent or the child).

4. When handovers cannot occur at school due to holidays or special days provided for in these orders, the parent with whom the child is living with prior to the handover is to deliver the child to the other parent and the parent being the recipient of the holiday time or special day is to return the child to the other parent at the conclusion of the specified time and unless otherwise agreed in writing these changeovers will occur at the respective homes of the parents with each parent ensuring the child is delivered to the home of the other parent but each parent is restrained from entering the other’s property.

5. Notwithstanding the terms of the previous orders the child is to live and communicate with the mother as follows:

   a.on the child’s sister E’s birthday from 10am to 5pm when that day falls on a non school day and from after school until 7pm if that day falls on a school day;

   b.on the mother’s birthday from 10am to 2pm if that day falls on a non school day and from after school until 7pm when that day falls on a school day;

   c.          from 10am to 5pm on Mother’s Day;

   d.when the child is spending school holiday time with the father, by telephone one evening each week as agreed between the parties but failing agreement each Monday between 6.30pm and 7pm with the father to initiate the call (and no other time save and except that in the case of a true emergency, each parent may telephone the other parent or the child).

6. The child is at liberty to attend S School or any other school nominated by the mother in the surrounding area where the child lives with her. 

7. Both parents are at liberty to attend the child’s school in accordance with the school guidelines and to receive copies of any school report or other written material or information regarding the child’s attendance and progress at the school.

8. Neither party is to consume alcohol to excess or use any prohibited substance when the child is in that parent’s care.

9. Neither parent is to denigrate the other in speaking to the child or within the child’s presence or hearing. 

10. Each parent is to keep the other informed of their residential address and telephone number at all times.

11. Neither parent is to use physical discipline upon the child or permit any other person to use physical discipline upon the child.

12. The father is restrained and an injunction is issued preventing him from

    (a) requesting or inviting the child to provide any form of physical massage or pain relief to him;

    (b) sleeping in the same bed as the child;

    (c) requesting or inviting the child to sleep in his bed;

    (d) making derogatory comments about the child’s sister, E, in the presence or hearing of the child.

13. The mother is restrained from advising the child of the allegations and contents of witness statements made by Miss H, Ms N and Ms B.

14. Each of the parents is to attend upon a recognised agency such as Relationships Australia or Lifeline to participate in a parenting apart program within 12 months from the date of these orders and each parent is to provide to the ICL and to each other evidence of their attendance at such program.

15. Each parent is restrained from being present at the child’s school when the other parent is delivering or collecting the child to or from school pursuant to these orders.

16. The parents are to do all acts and things to facilitate the attendance of the child to the Family Court Registry in Cairns to enable the Independent Children’s Lawyer in company with the Family Report writer Ms D to explain to the child the Orders made in relation to this litigation and until this occurs neither is to inform the child of the outcome of these proceedings. 

17. The appointment of the Independent Children’s Lawyer is discharged.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Weston & Weston

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 795 of 2007

Mrs Weston

Applicant

And

Mr Weston

Respondent

REASONS FOR JUDGMENT

Proceedings

1. These are proceedings for parenting orders about the future arrangements for the parties’ daughter, R, aged 7.  In the course of the proceedings an independent child lawyer was appointed and appeared at the hearing represented by counsel. 

Approach

1. In making a parenting order, the best interests of the child are the paramount consideration [s 60CA].  That outcome is a guided one and spanning the process are stated objects and underlying principles.  The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)].  The underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)]. 

2. There is an obligation to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)], which is about decision making and not time, but it does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)]. 

3. If the parenting order provides, or is to provide, for equal shared parental responsibility there is an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be reasonably practicable and if it is to make that order [s 65DAA(1)].  If that is not the result, there is an obligation to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether that would be reasonably practicable [s 65DAA(2)].

4. The factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) (3); (4)].  The factors to be taken into account in determining what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement the time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)].  ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not, allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)]. 

5. Where the presumption of equal shared parental responsibility does not apply for permissible reason the outcome is determined by reference to the primary and additional considerations, having regard to the stated objects and underlying principles. 

Orders sought

1. The orders sought by the parents at the commencement of the hearing are to be found in the case summary presented at the outset of the hearing.  They are set out in schedules to these reasons.  In closing written submissions delivered first in time the ICL supported an outcome as follows:

   1.The Independent Children’s Lawyer supports the amended application of the mother to the following extent:

   (a)      Order 1, that the child [R] live with the mother.

   (b)Order 2, that the mother have sole parental responsibility for the child.

   (c)That the child spend time with the father on the holidays and special days her as set out in Order 3 (b) through to 3 (g) inclusive.  The ICL however does not support the conditions as set out in the terms of Order 3 relating to the father’s attendance upon a counsellor.

   (d)That the child live with the mother on the special days as set out in Order 4, (a), (b) and (c).

   (e)       The ICL does not support the terms of Order 5

   (f)The ICL supports Order 7 to the extent that as from the commencement of the school year 2008, the mother is permitted to enrol the child to attend a school local to the mother’s home, as selected by the mother.

   (g)The ICL supports Order 8 which enables both parents to attend and further to engage in activities which parents are invited by the school to attend participate in, and to receive copies of school reports or other written material or information regarding the child’s attendance and progress at school.

   (h)The ICL supports Order 9 restraining each parent from denigrating the other to or in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other party.

   (i)The ICL supports Order 10, requiring each parent to keep the other informed in writing of their residential address and land based telephone contact and mobile number at all times.

   2.The Independent Children’s Lawyer supports the father’s amended application to the following extent:

   (a)The ICL supports Order 7 that neither parent shall use physical discipline to the child and further that neither parent shall permit any other person to use physical discipline upon the child.

   (b)The ICL supports Order 4, that the child will have telephone communication with the father once a week on a day each week as agreed or in the absence of agreement each Monday (and no other time save and except that in the case of a true emergency, each parent may telephone the other parent or the child) with the telephone call commence between 6.30 and 7.00.  The mother shall initiate the telephone calls and ensure that the child is not distracted during the telephone calls.

   3. The Independent Children’s Lawyer supports the recommendations of the report writer (to the extent that they are not already dealt with)

   (a)The child spend time with the father each alternate weekend commencing at Friday after school until Monday morning with the changeover to occur at school.

   (b)That each party will do all acts and things to acquire and retain sufficient clothes and uniforms for the child to minimize the practical issue of her changing households and additionally each party will do all acts and things to promptly return to the other parent any item of clothing or uniform or school requirements that the child will need for her school attendance.

   (c)That the father will ensure that he facilitates the child’s attendance at all social, educational or sporting activities forming part of the child’s school or extra curricular activities in which the child is engaged or enrolled which occur during the time that the child spends with the father pursuant to these Orders.

   4.        The Independent Children’s Lawyer seeks the additional Orders:

   (a)That the father be restrained and an injunction issue preventing him from requesting or inviting the child to provide any form of physical massage or relief to him.

   (b)That the father be restrained and an injunction issue preventing him from sleeping in the same bed as the child and preventing him from requesting or inviting the child to sleep in his bed.

   (c)The father shall be restrained from making derogatory comments about the child’s half sibling [E] in the presence or hearing of the child.

   (d)The mother is restrained from advising the child of the allegations and contents of witness statements made by [Miss  H], [Ms N] and [Ms B].

   (e)Each of the parents are to attend upon a recognized agency such as Relationships Australia or Lifeline to participate in a parenting apart program within 12 months of the date of this Order, and each shall provide to the ICL and each other, evidence of their attendance at such program.

   (f)Each parent is restrained from engaging in anything other than courteous dialogue with the other parent in the presence or hearing of the child in the event that they are required to speak with each other during any handover, telephone communication or any face to face meeting in the presence or hearing of the child.

   (g)Each parent shall be restrained from being present at the child’s school when the other parent is delivering or collecting the child to or from school pursuant to the handovers referred to in these Orders.  

   (h)When handovers occur from one parent to the other pursuant to the holidays and special days provided for in these Orders, the parent with whom the child is with prior to the holiday or the special day will deliver the child to the other parent, and the parent being the recipient of the holiday time or special day will return the child to the other parent at the conclusion of the specified time.  Unless otherwise agreed in advance, these changeovers will occur at the respective homes of the parents with each parent ensuring the child is delivered to the home of the other parent but each parent shall be restrained from entering the other’s property.

   (i)That the parties do all acts and things to facilitate the attendance of the child to the Family Court Registry in Cairns to enable the  Independent Children’s Lawyer in company with the author of the Family Reports prepared in this matter ([Ms D]) to explain to the child the Orders made in relation to this litigation.  Until this occurs, each of the parties be restrained from informing the child of the outcome of this litigation.

2. The mother signified her agreement with the substance of these orders in submissions made on her behalf. 

Evidence

1. The evidence has been extensive and has come from many sources, lay and professional, including the tender of a good many documents produced from various sources.  Not all witnesses were required for cross-examination.  Taking the lead from the written submissions, not all of the evidence needs to be discussed and aspects of it can be left as background to the more central events that have occurred. 

2. There were submissions from the father’s counsel highly critical of the mother’s credibility and urging a general finding against her credit wherever it differs from that given by the father.  The submissions traversed the fields of inconsistent evidence given about events, her ‘attack’ approach towards the integrity of witnesses, and manipulation of the facts to support her various allegations.  Whatever might be said in response to this, I do not assess this case as one where a general finding of credit is open, including a finding in the father’s favour, because neither has established the criteria for that.  On the contrary, with objectivity long since blunted by hostility, this is a case where all the evidence has had to be carefully weighed and considered and a search made for corroboration from independent sources – documents or experts – before any findings on the probabilities could be made. 

3. There was evidence from those with professional qualifications and that will be mentioned in due course, but for now it can be noted that there are reports from two experts whose evidence is relied on by the ICL –

   (a)Two Family Reports were prepared over time by Ms D, the first in October 2006 and the second in September 2007, and she elaborated in further evidence at the hearing.  Her opinions were not the subject of challenge in the submissions although there was some commentary of no real consequence on aspects of her evidence.  Due weight can be given, therefore, to her conclusions and opinions in so far as they are consistent with the evidence as a whole and some of these opinions will be discussed in the course of these reasons. 

   (b)Mr C, forensic psychologist, gave two reports relating to his psychological assessment of the father, the first in October 2006 and an addendum in January 2007 after the provision of further materials.  He also elaborated in further evidence at the hearing.  The thrust of his evidence will be noted later. 

Brief background

1. The father is aged 56 [born in September 1951] and the mother is aged 46 [born in July 1961]. 

2. Both parents have children from previous relationships.  The mother has two children from a previous relationship, E aged 15 [born in August 1992] and J, aged 17.  J lives with his own father and E lives with her mother.  The father has three adult children from a previous marriage. 

1. The parties met and commenced a relationship in March 1999.  They began living together in September 1999 when the mother and E moved into the father’s home in northern New South Wales.  J came and went but eventually decided to live with his father, a decision the mother attributes to the father’s violent nature, which he denies.  They married in February 2000.  R, their only child, was born in November 2000.  They moved to M in northern Queensland in 2003 and they separated finally in January 2005. 

Current circumstances

1. In late 2005 the mother met Mr H (45) with whom she commenced a relationship and she moved in with him in 2006.  Mr H’s daughter, S (7) lives with him.  They live in A in northern Queensland.  She worked at an earlier time at a health facility and did some part time work at a hotel but she is not now in paid work.  Mr H works full time. 

2. The father has continued to live in the home at M.  He receives a disability pension and does some occasional part time work.  The resolution of the parties’ property settlement has meant the father has retained the home and is paying the mother out and for that purpose he borrowed money.  To meet the additional financial commitments he says he will take on additional work and he has also taken in boarders.  The mother expressed concerns about the appearance of male boarders at his home in the course of the hearing but he maintained his intention to keep boarders – he says he will ‘vet’ those who share the house – but it is clear, at least from the mother’s perspective, that the issue of boarders remains current. 

3. The father has established a relationship with another woman, Ms M, who has three children aged 16, 8 and 6 years.  He had met her on four or five weekend occasions when she had travelled to Cairns but at the time of hearing he had not met her children.  In her affidavit Ms M said her youngest child, a daughter, is the same age as R.  It was being foreshadowed that they would move into his home; the father thought at the time of the hearing she may move in around the end of the year and he said she will probably buy an interest in his house which would alleviate some of his financial pressure.  In either case - Ms M or boarders – he will not be the only one living in his household. 

History

1. Developments of more central relevance over the course of the parties’ relationship will be outlined shortly, but it becomes relevant to later events to briefly outline allegations made during 1999 of sexual abuse against the father by three women, but related to much earlier times when they were minors:

   ·In May 1999 Miss H, the daughter of the father’s former de facto wife, reported to the police that she had been sexually abused by the father.  The father was subsequently charged with sexual offences occurring between January 1994 and December 1995 at a time when Miss H was aged 10 and 11 years of age.  In July 2000 he was committed for hearing on charges including sexual intercourse with a victim under the age of 16 years.  At the subsequent trial in August 2001 records reflect the complainant was unwilling to continue and on the second day of the trial the judge directed the jury to find the father not guilty [see exhibit 10].

   ·In August 1999 the father’s sister, Ms B, reported to police that the father had sexually abused her between 1963 and 1965 and had carnal knowledge between 1968 and 1969.  She was aged between 8-10 years at the time of the alleged offences.  

   ·In September 1999 the father’s niece, Ms N, reported to the police that the father had sexually assaulted her between September 1974 and March 1975.  

   ·The father denies the allegations from all three sources. 

2. Three years before they met, the father had suffered a stroke and towards the end of 2001 he suffered a second stroke.  The mother says she ceased work at the time to care for him and was granted a carer’s pension, although he claims she was never his carer.  Whatever the case, by this time records produced by police indicate there was already instability reflected in allegations of abusive behaviour and argument between them [exhibit 6] and their history from very early on reflects an acrimonious relationship involving considerable conflict with mutual allegations of violence, police intervention and protection orders. 

3. On 9 January 2002 the mother went to the hospital in northern New South Wales after an argument between the two of them.  She told police the father had a knife and had locked himself in the house with R [who was just 14 months old at the time], the police set up a cordon around the house and the SWAT team arrived.  The father co-operated with police and no further action was taken save that he was referred for a mental health assessment [exhibit 6].  The mother later volunteered to police that E, who had alerted her in the first place to the father holding a knife, may have been mistaken and the police records note that information may have been wrong. 

4. On 5 November 2002 there were further events that precipitated their first separation when the mother moved out of the home in northern NSW and went with E to the local hospital for a couple of days before going to a women’s shelter and then renting a unit. 

5. Records reveal that when she presented at the hospital on that day after a dispute with the father she was intoxicated.  In her later police interview the mother reported that the father had hit her on the head with an object and there was a later argument in the car when he punched her in the leg.  While driving he threw her purse out of the car window and told her to get it if she wanted it but he drove off when she was attempting to get back in the car.  She fell and injured her foot and, being unable to walk home, rang him to come and get her.  She sought treatment at the hospital for her injury and argument continued when she returned home.  She alleges he tried to physically remove her from the house, he threw her down the stairs, and he pushed her out of the front door.  She and E returned to the hospital.  The father’s account of these events differs.  On his case, the initial separation was brought about by the mother’s constant drug use, he denies hitting her, and says her head injury was the result of her running into a plank he was using to do renovations when she was intoxicated and while he agrees he threw her purse out of the car, he says she misrepresented what had occurred. 

6. In the meantime, while they were at the hospital E made statements about inappropriate sexual conduct by the father towards her.  She related being in bed with her mother and the father after a bad dream and her attempts to resist the father’s efforts to put her leg on his ‘private parts’.  She was interviewed by officers from the Department of Community Services and later by officers from the Juvenile Aid Bureau when she again related what had happened but on this occasion she said he was snoring at the time.  The father was also interviewed.  He had been told that E said he was asleep and he said he did not know what had happened.  He denies any wrongdoing.  There was no further involvement by police or other authorities and the records reflect the claims of sexual abuse ‘not substantiated’.  But the mother was required to sign an undertaking to limit her consumption of alcohol and address issues with prescription drugs and she was also required her to go to a women's shelter due to concerns about domestic violence. 

7. On her exit from the home on 5 November R had remained there with her father.  Later, the mother clandestinely entered the home at night, in the company of a friend who waited outside, with the intention of taking R.  But the friend called the police when she did not emerge and the upshot of their intervention was that R remained with the father.  While she was inside the house the mother alleges the father assaulted her by pulling by her hair and dragging her back into the house when she tried to leave, conduct he denies. 

8. After the unsuccessful attempt to remove R from her father, parenting proceedings were commenced and on 11 December 2002 interim orders were made providing for R to live with her father and have contact with her mother each weekend from 9am on Saturday to 5pm on Sunday.  There were also restraining orders each obtained against the other and there followed allegations of breaches of the protection orders and further police interventions.  The father was charged with assault against the mother arising from the November events and in February 2003 he was convicted and fined after he failed to appear to defend the charge.  By this time they had reconciled and he attributes his failure to attend Court to the mother who, he maintains, told him if he defended the charge the marriage was over and he assumed the charge would be withdrawn. 

9. Obviously these developments are an indication of the dysfunctional state of their relationship by the end of 2002 and are a troubling reflection of the environment in which the children found themselves.  On the mother’s case the difficulties had been going on for some time.  She alleges the father was violent and controlling and she lived in a state of fear, particularly about R’s safety, and that his behaviour included hair pulling and assaults, he would keep the car keys with him at all times and drive off with R and stay away overnight after arguments.  The father denies the allegations about his behaviour and offers quite a different perspective about the cause of arguments.  On his case, the responsibility for it lay with the mother, he denies ever hitting her or controlling her and while he agreed he would take R away at times, that was only when the mother was ‘out of it’ on drugs and he would return when ‘things had settled down’. 

10. The period that followed their reconciliation in January 2003 was not without controversy.  The mother alleges the father raped her in that time, which he denies.  In May 2003 they moved to live in North Queensland and established themselves at M. But their relationship remained fraught with conflict and their evidence about this phase of their time together mirrors the allegations and denials and perspectives about responsibility already recounted.  They had some counselling but it was to no avail. 

11. On 22 January 2005 police intervened in a dispute that revolved around the father’s removal of a part from the mother’s motor vehicle thereby preventing her leaving.  On her evidence, he had threatened to kill her if she attempted to leave him and told her she would never be allowed to take R with her if she left.  On his evidence, he had only removed the part to prevent her from driving while she was under the influence of drugs and alcohol which had been the topic of dispute after he had found a bag of marijuana leaf lying around the house.  He alleges she threatened to stab him [she denies it, she was only trying to pick the lock to get into the bedroom] and while he concedes he refused to allow R to go with her, he did so out of fear for R’s safety.  The police record of the incident [exhibit 7] notes no complaint by either of physical violence but of mutual threats and verbal abuse.  The vehicle part was restored and no further action was taken by police.  Several days later, however, on 26 January, the police executed a search warrant of the premises and located marijuana.  The mother admitted to it and as she agreed to undertake a drug diversion program no charges resulted [exhibit 7]. 

12. Around these events the downward spiral in their relations continued.  On 27 January 2005 the father obtained an ex parte interim domestic violence order against the mother and that included R as a person in need of protection.  The following day they separated finally when the mother left the home.  As she describes it, the father attempted to stop her from taking R to day care on the basis of the ex parte order and she was then prevented from picking her up that afternoon.  As he describes it, he had decided it was the ‘absolute end’ and he had done all he could to get the mother on the road to rehabilitation.  The mother collected her personal items from the home with police assistance that evening and she moved to live elsewhere. 

13. Court proceedings followed, initially in the Magistrates Court, then the Federal Magistrates Court, and ultimately those proceedings were transferred to this Court.  Orders made over time variously related to protection from violence and also to parenting arrangements.  After her departure the mother unsuccessfully sought an ex parte recovery order in the Magistrates Court, then on 4 February 2005 interim parenting orders were made to this effect:

    ·child to live with father, shared joint responsibility for her long term care

    ·each parent to be responsible for day to day care

    ·each parent to abstain from excessive use of drugs and alcohol

    ·mother to have contact from 5pm Friday to 1pm Monday, the mother to collect and return, and telephone contact between 5pm and 7.30pm each Wednesday

    ·transfer to the Family Court at Cairns [in fact it was transferred to the Federal Magistrates Court]

14. On 17 February 2005 interim domestic violence orders were made in the Magistrates Court, being mutual orders with neither making admissions, and R’s name was removed from the order against the mother. 

15. On 26 February 2005 the mother contacted police and informed them of R asking whether ‘it was ok to suck body parts’ such as elbows and nipples.  SCAN became involved.  In the interview to follow the mother said R told her she had heard it from television, but she expressed concern about R’s safety as she had said it out of the blue and she was sleeping in the same bed as her father when she spent time with him.  She also informed police about the earlier allegations against the father of sexual abuse of minors and about the allegations made by E while living in northern NSW.  She said she did not have proof he had ever sexually abused E and she was unsure if either of the children had ever been sexually abused by him, nonetheless she held concerns.  She repeated in a later interview that she feared for R’s safety due to the father’s history but she had no reason to believe R had ever been sexually harmed. 

16. The notification led to R being interviewed by protection authorities.  She made no disclosure of sexual abuse or harm, she related the reference to sucking on elbows and nipple to having seen babies do it.  She was also medically examined and that produced a negative finding.  A check was made on the father’s premises and it was concluded the sleeping arrangements were appropriate and R and her father appeared to have a usual father/daughter relationship.  The records note the file marked as ‘unsubstantiated’. 

17. In his evidence about these events the father denies that R slept in his room, occasionally he would wake from a deep sleep and find she had come into his bed but he would take her back to her own bed and it was only when she could not go to sleep that he let her stay until she fell asleep. 

18. At this time there was also some further activity arising from the information given to police about the statements E had made in November 2002.  She attended for police interview with her mother on 11 March, but after discussion of State jurisdiction and the state of the evidence the complaint was withdrawn [exhibit 7]. 

19. In April 2005 the parties attended a Legal Aid conference and reached an agreement, although the mother contends she did not fully understand what was proposed.  In any event, on 3 May 2005 consent orders were made in the Federal Magistrates Court to this effect: 

    ·earlier interim orders vacated

    ·child to live with father and have contact on specific special occasions

    ·shared joint responsibility for long term care

    ·both parents entitled to attend the day care school or preschool at any time according to the school guidelines and both entitled to receive copies of school reports etc

    ·contact with mother at all reasonable times agreed but failing agreement for a minimum -

    oafter school Wednesday until 10am Sunday in week 1 and after school Friday until 10am Monday in week 2 and rotating thereafter in 2 week cycle

    ohalf of all school holidays

    ospecified special occasions

    oby telephone between 7.30pm and 8pm each day, the mother to initiate

    ·changeovers to be at day care or school and otherwise at a shop in M

    ·neither to use illegal drugs or drink alcohol to excess while the child in their care

    ·both to ensure child attends M school and deliver the child to school

    ·neither to denigrate the other or allow third parties to do so and neither to swear around the child

    ·each to keep the other informed of telephone number and residential address.

20. Disputes continued nonetheless with allegations in both directions of unjustified withholding of the child, which resulted in further court proceedings towards the end of 2005 and into 2006.  On 5 December 2005 the Magistrates Court at Innisfail issued a recovery order for return of the child to the father’s care and ordered the mother to pay costs.  She successfully appealed, though the recovery order had been executed, and on 16 February 2006 orders were made discharging the costs order made against her. 

21. Throughout 2006 there were further developments, but a significant one was an allegation that Mr H was physically assaulting R.  That emerged first on 7 May 2006 when, according to the father, R volunteered this information to him without prompting [paragraph 50.3] though he does not say what she volunteered.  Instead, in his affidavit he relates this development by referring to the affidavits of Dr D and Dr F to whom he took R for consultations on dates to be noted shortly.  In his discussion with the reporter about the development he said he telephoned 3 different police stations but did not get a response [he was told there was insufficient evidence to warrant investigation] and he also telephoned the Department [there is no record of a notification on 7 May].  He did not raise it immediately with the mother or Mr H; the first she heard of it was at a conciliation conference on 10 May 2006 when he refused to have Mr H involved in discussions. 

22. He took R to consult with Dr D on 17 May 2006.  The process undertaken there is not apparent but Dr D wrote to the father’s solicitor on 29 May giving a summary of what the father reported to him; namely, ‘that her mother’s partner had hit her resulting in her falling to the ground, being held on the floor with the weight of this persons foot on her and being told that she was “a loser”.’  Dr D’s letter goes on to say ‘[R] verified all these details’.  There was a further notification to the Department. 

23. Later that same day, 17 May, the father notified the Department of the child’s complaints.  He told the Department what R had told him: Mr H does not like her, he called her a ‘loser’, she had been hit by Mr H who knocked her on the head, she fell to the ground, he put a foot on her stomach and hit her on the leg, stomach and arm.  He also said that R recounted overhearing her mother and Mr H plotting to kill him.  He said R was wetting the bed the first night after she returned from being with her mother.  The father said he had taken R to the doctor that morning. 

24. The Department investigated the complaint about Mr H’s conduct and that included interviews with R, the mother and Mr H and a home visit to the mother’s residence.  In her interview on 10 August [exhibit 13] R said amongst other things that she is given time out for doing something naughty and she does not get smacked by anyone at home, she is happy at home and the only thing that makes her sad is that her mum and dad do not get along.  Asked if Mr H had ever done anything she did not like she nodded, but when asked to describe what it was she said she had forgotten.  The authorities finalised the matter as being unsubstantiated. 

1. On 19 September 2006 the interviews for the first Family Report were conducted and the report released in early October.  Aspects of that process threw some further light on issues yet to be discussed and can be left until then.  But the reporter summarised her views at the end of the report and made certain recommendations which were made available to the parties.  Her summary is this:

   ‘123.   From this assessment it seems evident that the parental relationship has been turbulent both before and after separation, and that communication and collaboration between them is very difficult.  What would benefit [R] most at this stage would be for her parents to increase their capacity to view each other with some positive regard and to be able to communicate and cooperate.  In my view both parents have sufficient involvement in the care of [R] that joint parental responsibility is appropriate.

   124.    It is of great concern that the father has past child sex abuse allegations and [E’s] allegations against him.  [E’s] comments about being uncomfortable with [the father’s] behaviour last year adds to the concern.  While there have not been any positive findings, it appears that the Department of Child Safety has substantiated a risk of harm towards[R] in relation to the father.  In the father's favour are his daughter, [NW]’s complete confidence in her father and her positive experience of being parented by him when young, and his ex-wife's support of him and his parenting.  The allegations against the father have been investigated and dismissed, and it is beyond the scope of this assessment to make any other determination.  However it is appropriate for the mother to organise some protective behaviours training for [R] from an appropriate professional.

   125.    Also of concern is [E’s] distress in recalling her past experience of living with her mother and [the father], and her conviction that she was inappropriately dealt with by [the father].  While she is now enjoying her life and feeling able to develop as an adolescent, I would encourage her to seek out some appropriate counselling and for her mother to also consider being involved.

   126.    In relation to [R’s] disclosures against the step-father, it is always of concern when a child makes disclosures of abuse, especially to non family members such as the GP. However the Department has investigated the allegations as a Notification and have not taken any further action.  Mr [H] has reported that he has built in safeguards for his own protection given this experience.  Certainly there was no evidence on the day of the assessment from [R] or from observations that she has any concern about interacting and being affectionate with Mr [H].  In my view, these allegations should not impact on any decisions about how [R] spends her time with either parent.

   127.    While the father has made allegations against the mother in regard to her dependency on drugs and alcohol both past and present, and it appears that [the mother] accepts there have been problems in the past, she emphatically denies any ongoing dependency.  She is supported in this view by both Mr [H] and her daughter, [E].  It is also worth noting that [the mother] reportedly maintains two jobs which require concentration and reliability.  While I would accept that she had a dependency on alcohol and prescription drugs in the past (this seems evident from subpoenaed records), I would accept the mother's view that this is not an issue now.

   128.    While they have shared the care of [R] since May 2005 and [R] presents as a confident and happy child, it seems likely that she is experiencing some tension from divided loyalties with the parental hostility.  The difficulty the parents are experiencing with communication and changeovers is usually a contraindication for parents having substantial shared care.  It is now more than eighteen months since separation and the hostility between the parents is still very high.  In my view the pattern of allegations between them has been a significant factor in this regard.  In view of the mother's concerns about the mid week changeover and the disruption with four changes of care each fortnight, if an interim option was available, the parents could trial a "week about" sharing of care to see if this reduces the conflict between them and the strain on[R].  However I am not optimistic the parents can improve their cooperation sufficiently for this to be successful.

   129.    If there is a need for final Orders and given the entrenched conflict between the parents, it is my opinion that [R] would benefit from living predominantly with one parent.  While she is still spending time with each parent, it is possible she will feel more comfortable being aligned with one household.  Both parents do have some merit as the primary carer.  The father has shown a dedication to his parenting and has invested considerable energy in this role.  However his hostility towards the mother may be destabilising for [R].  On the other hand, there is some evidence that the mother has moved on from her problems in the past and is able to offer [R] the advantages of a family life including an older half sibling and a step sibling.  An additional consideration might be [R’s] need for a same gender parent as she grows older.’

2. The reporter recommended there be equal shared parental responsibility.  If interim orders were an option she recommended R live with each parent for a week about on as trial basis.  If final orders were needed she recommended that R live with one parent and has a four day alternate weekend with the other with changeovers at the school.  Finally, she recommended orders provide for mutual non-denigration obligations. 

3. One of the things that occurred after the release of the Family Report was that the mother organised counselling for E.  Ms S undertook that and in her evidence she relates disclosures by E about inappropriate behaviour by the father towards her and the reporter later notes in her second report those are consistent with comments E made to her during their discussions. 

4. The father again pursued the allegation about Mr H assaulting R by taking R to consult with Dr F on 16 December 2006.  Dr F attached her notes of the consultation to her affidavit.  The reason for the visit was recorded as ‘smacks from mother’s boyfriend’.  Dr F interviewed R for half an hour on her own.  She records R saying: ‘[Mr H] hits her every time she visits, he hits her on her bottom and her back even when she is good, he spilt beer on her head once when smacking her, he calls her a liar, a loser and cheeky, he calls her dad a liar and a mean person, he also hits his 6 yr old daughter [S], her mother doesn’t hit her but her mother sometimes hits [S], scared of monsters at night at Mums because no night light, not worried at Dads as she has a night light, not scared of going to Mums but doesn’t like [Mr H] hitting her, says [Mr H] told her not to tell anyone about the smacks, says sometimes when Mum at work and sometimes when Mum at home, says Mum tells [Mr H] not to smack her.’  On examination no bruises were noted and the child was described as ‘happy’. 

5. In December 2006 Mr G, psychologist, and Ms S, psychotherapist, became engaged in a process in which R was involved and there were also interviews with the mother and E.  The catalyst for this process is not clear and not particularly explained by Mr G’s letter to the father’s solicitor of 1 February 2007.  The purpose behind it, as described by Mr G at the hearing, was to establish a rapport with R to ensure she was comfortable to share her thoughts to assist in shedding light on the concerns that had been expressed about what had been happening to her, it would allow R to reveal her thoughts and experiences, and was more exploration than investigation. 

6. In closing written submissions counsel for the ICL is critical of the process that saw the involvement of Mr G and Ms S following the release of the first Family Report.  At that point the father’s solicitor wrote to the ICL suggesting an ‘independent report’ – there had been no suggestion the reporter, Ms D, was anything other than independent – and the proposal was not taken up by the ICL.  At that point the submissions for the father take up the sequence of events that followed.  There is no reason to doubt what is said there, but the point is more that at whatever point it occurred, both parents ultimately either participated in or supported the process undertaken by Mr G, by supplying material including affidavits or by interview sessions involving the child. 

7. Counsel for the ICL is critical of the motives of the parents in this whole process and says, correctly in my view, the focus and purpose of it still remains unclear, as does the evidence both Mr G and Ms S were attempting to provide.  From my point of view, whatever else might be said of it, it was plainly a piece of evidence gathering in the anticipation that it would ultimately support some aspect of their case and had the consequence, regrettably, that this child was caught up in it for session after session, apparently by those who had an earlier therapeutic involvement with the mother and with E.  The whole episode defies comprehension.  Had any of it been foreshadowed rather than presented as an accomplished fact, it would not have been permitted.  Whatever else it achieved, none of it was of any particular probative value as will be apparent from my attempt below to summarise the thrust of what was said:

   (a)The letter of 1 February from Mr G to the father’s solicitors records his interim views to the effect that there was nothing to establish any ill treatment by Mr H, R had no recollection of beer being poured over her head, and her affirmative responses to questions implied her father had (in effect) primed her about what to say.  He said R did not appear frightened or intimidated by Mr H.  But Mr G indicated his intention to ‘continue the assessment process to validate these subjective findings’ and promised an updated summary. 

   (b)Indeed he did produce a later document dated 16 March 2007 which is annexed to his affidavit and does nothing to clarify the terms of his professional engagement.  He opens by recording a request from the mother for a ‘general psychological review of…[R] due to concerns held by [the mother]…as a result of observed behaviours and statements which seemed to be “unusual” and “atypical” prior to and following visits between [R] and her father…”  There is later reference to concerns being reflected in a letter he received from the father’s solicitor which he summarised.  The summary he gave at the end of this document suggests the ‘assessment’ process had been most useful in reassuring the mother and Mr H that R is content in their environment and not reporting evidence of mistreatment or excessive discipline or punishment.  Be that as it may, he concludes with comments on the mother’s concerns about R’s unusual behaviours surrounding visits to the father which are beyond summary and are better read. 

8. On 3 May 2007 the matter was set for final hearing in the Federal Magistrates Court but it was not reached and in those circumstances the parties, each legally represented by counsel, reached agreement about further interim orders.  They are to this effect:

   ·interim orders of 3 May 2005 vacated

   ·parents to have joint parental responsibility

   ·child to live with parents on week about basis with changeover at the school each Friday unless otherwise agreed in writing

   ·half of each school holidays with each parent

   ·specific special occasions with each parent

   ·telephone contact each Wednesday between 6.30pm and 7.30pm with other parent

   ·child to attend M School unless agreed in writing, each parent at liberty to attend school in accordance with school guidelines, each entitled to receive school reports etc

   ·each to keep the other informed about medical or other issues effecting the child and keep the other informed of telephone number and current residential address

   ·neither to remove the child from North Queensland without notice to the other

   ·neither to drink alcohol to excess or use or be under the influence of any illegal drug while the child is in that parent’s care

   ·neither to permit any other person to physically discipline the child

   ·specific arrangements about non-school day changeovers

   ·each to submit to random drug testing requested by the ICL

   ·each to enrol the child and ensure her regular attendance at protective behaviours educational course

   ·listed for hearing in Federal Magistrates Court for 3 days in September 2007.

9. On 25 May 2007 the mother contacted police and the Department also became involved.  She reported R telling her that her father makes her sit on his back and ‘massage his back and jump up and down on his back’ and if she does not do it she cannot watch the Simpsons.  She expressed concern about whether he may be ‘grooming’ R and that she might be subjected to sexual abuse.  She called it completely inappropriate behaviour but she said R had made no disclosure about her father inappropriately touching her.  The child was interviewed.  Police records reflect R saying she did not want to go to her father’s house because he makes her massage his back and walk on his feet or she could not watch the Simpsons.  The Department discussed the risks in their summary report and for reasons stated took no further action.  The mother was advised to tell the father the child does not like massaging his back [exhibit 11]. 

10. At that time the mother arranged for protective behaviours training for R.  She later told the reporter that through this she became more aware of sexual abuse and had increased concerns about R’s safety with her father. 

11. In mid-June the mother made a further notification to the Department to the effect that a supposed ‘well known drug user’ had moved in with the father.  She also related that R was not allowed into the room where the father has a computer and she thought child pornography could be on the computer.  While the mother saw R as vulnerable because of her age, she also told the Department R had said nothing about her father or the boarder treating her inappropriately. 

12. As the mother related it to the reporter during interviews later in September, she developed increased concerns about R’s safety with her father during this time.  She expressed concern about the father’s supposed emotional dependence on R, she saw a problem with ‘boundaries’ and with R being the ‘boss’ at her father’s home, and she was aware from a visit to the home that the father had a mattress in the lounge room and in R’s room and she suspected he was sleeping in R’s room.  She also reported R being uncomfortable about ‘tickling’ games with her father. 

13. The reporter took this up with the father and notes he was defensive about the allegation of inappropriate behaviour from massages [he had asked R to stand on his feet to relieve pain] or tickling games or from having a mattress in the lounge room [they might both sleep in the lounge on Friday night as a treat but otherwise she sleeps in her own bed].  The father saw this as a ploy by the mother to remove R from him, he denied suggestions of inappropriate behaviour, and he was adamant he would do nothing to jeopardise his relationship with his daughter. 

14. The further interviews for the second Family Report were conducted on 6 September 2007, no doubt preparatory to the hearing scheduled for September, but that did not occur.  Instead, the matter was transferred to this Court and a request made pursuant to s 91B of the Act for the intervention of the Department.  The Department did not intervene but they did provide to the Legal Aid office a copy of their records over time arising from notifications and child concern reports [exhibit 13]. 

15. On the way home from the Report interviews the father alleges that R made a further statement to the effect that Mr H hits her all the time.  He says he told her on the way to school the next morning that if she wants it to stop she will have to tell someone at school.  The school teacher’s affidavit takes up events from there:

    (a)On Friday 7 September 2007 R came to school with her father and the father said to the teacher that R had something she wants to say.  He moved 3 or 4 metres away and R said ‘[Mr H] hits me’.  R said nothing more.  She appeared nervous and had her hands up to her mouth and kept looking at her father.  The teacher reported the matter to the Principal. 

    (b)The teacher describes a subsequent event on the following Monday, 10 September, when the mother came to her classroom after school and said R has something she wishes to say.  The mother left the room and R then said ‘my dad told me to say that [Mr H] hits me and to tell you’.  The teacher had no further discussion with R or either parent about the allegation.  She commented that R’s behaviour at school has not changed either prior to or since the allegations made on 7 September. 

16. Released later in September, the second Family Report again traverses some of the issues to be discussed later.  At the time of those interviews the mother was proposing that R live with her and spend time with her father on alternate weekends and one afternoon or overnight in the other week; the father was proposing that R live with him and spend time with her mother but he was happy to continue the arrangement put in place by the May 2007 orders. 

17. Again the reporter summarised her views and made recommendations.  This is her summary:

    ‘55.     On 10 September 2007 I became aware of the father's affidavit dated 7 September 2007, in which he states that [R] disclosed to him on the way home from the report interviews that Mr [H] is hitting her.  While similar disclosures were addressed in my previous report, these concerns have not been raised and are therefore not part of my current assessment.  No such disclosures were made to me at interview.  It is therefore difficult for me to assess any probability of risk to R from Mr [H] and the ability of the mother to protect her from harm.  Given the timing of R’s disclosures (the day of the family report interviews), and the nature of her disclosures (generalised and including [S]) that she may be responding to the pressure of divided loyalties, or other fears such as her father's response to her losing her mobile phone, however this affidavit raises questions of physical harm that require investigation by the Department of Child Safety.  Unfortunately this will subject R to yet another statutory body investigation which for such a young child verges on systems abuse.  However in my opinion final Orders could not be made without some resolution of these claims.

    56.      An added complexity in this report is how much weight should be given to the claims by the mother and her family that [R] is at increased risk of being sexually abused by her father if she remains in his care on a substantial basis.  Such factors as [the mother] articulating concerns about the father's behaviours past and present, the reports of [E] of worrying behaviour by [the father] that could be linked with child sexual abuse, and the lack of satisfactory resolution to the charges of child sexual abuse raised against [the father] in the past, raise many concerns.  On a positive side for [the father] is his oldest daughter's testimony to being raised by him as a sole parent without ever having any concerns about his appropriateness.  This may suggest that if there is any substance to allegations in the past by others, that [the father] is protective towards his biological children.

    57.      However there is also some evidence that the father has difficulty prioritising [R’s] needs above his own (see the father's comments about Little Athletics in paragraph 42) and is dependent on [R] to meet his own emotional needs.  I note his reported comments to [R] in his affidavit dated 7 September 2007 that he told his daughter, "You're the only one who can do something about it, you'll have to tell someone at school. .. ".  In my opinion this approach to a young child suggests he lacks insight into her needs.

    58.      The apparent incongruity between the mother's expressed concern for [R’s] safety and her proposal of the father spending alternate weekends and additional time with [R], may be best explained by her apparently accepting a pragmatic approach and understanding that there is insufficient evidence against the father to ask for supervised time.  If there are valid concerns, there are some additional safeguards in place, such as [R] having had protective behaviours training, and the monitoring by family members of [R’s] behaviours.  An added factor will be her own increased awareness as [R] grows and matures.

    59.      In my view these parents do not have the capacity to equally share the day to day care of their child.  They do not have the ability to communicate with each other and show sufficient positive regard towards each other for substantial shared care to be workable.  While the parents have an established pattern of equal shared care since separation, as foreshadowed in my previous family report, it appears that [R] is not coping with the high levels of conflict between her parents and that a pattern of ongoing equal shared care is not likely to be in [R’s] best interest.  In my view [R] will benefit from having a "home base" with one parent, and spending time with the other parent.  This will give her some increased stability and sense of belonging in one home.

    60.      If [R] is to live predominantly with one parent, and if there is no substantiated risk associated with these new claims in the affidavit by the father dated 7 September 2007, I recommend that [R] live predominantly with her mother.  My assessment is that her mother is able to offer a family environment in which [R] has the additional strong attachment to her half sister and the added benefit of a step sister of the same age.  It is also likely to become increasingly important to her as she grows older that she has her same gender parent available to her.  There is also some evidence that [R] is more comfortable and attached to her mother than her father (the reported remarks by [R] in her counsellor's report about wanting to telephone her mother while at her father's home and wanting to live with her mother; [R] wanting her mother to accompany her into her interview with me, although her father brought her to the interviews).  [The mother] has also shown the capacity to take the initiative to support both of her daughters when given some direction (organising counselling and protective behaviours training).

    61.      Given there is some evidence that [R] is likely to be subjected to ongoing conflict between the parents, and the father is likely to put pressure on her loyalties, my view is that telephone communication should be specified and limited for each parent when [R] is not in their care.

    62.      In the event that [R] moves more substantially into her mother's care, I recommend that she remains at her current primary school until the end of the academic year to reduce any potential negative impact on her of multiple changes in her life.’

1. Her specific recommendations were for equal shared responsibility; provided there is no associated risk for R related to the claims about Mr H that R live with her mother and spend time with her father every second week from Thursday after school until Monday morning with changeovers to occur at school; and R spend half of the school holidays with each parent; and she suggested specific arrangements be made for telephone communications.  Added to that she recommended each parent make arrangements to have sufficient clothes and uniforms for R to minimise the practical issues of her changing households, they each support R’s involvement in extra-curricular activities, R’s school should not be changed until the 2008 school year, and there be mutual non-denigration orders against both parents. 

2. Later in September 2007 there were events at the A Tavern while the mother and Mr H were present.  Mr Y, the publican, gave evidence about it, as did the mother and Mr H and others, and that will be discussed in due course. 

3. Before delivery of judgment the evidence was reopened and a brief summary of the evidence about more recent events follows:

   (a)On 5 January 2007 the mother was to hand R over to spend half of the school holidays with her father.  After an angry response from the mother when the father called to make arrangements, she refused to do so and referred him to a letter sent by her solicitor.  He went to her house later in the day to collect R and was told by the mother ‘you are not getting [R], she is not here.’  Apart from a few hours on Boxing Day, the father had not seen R since he took her to school on 14 December 2007.  He also alleges she had on a number of other occasions refused to allow him to talk to R by telephone, contrary to the May 2007 orders.  Moreover, she did not re-enrol R at the M School this year, also contrary to the May 2007 orders, and he subsequently learnt in late January that she is enrolled at the S School which is approximately 40 kilometres from his home and he is unable to afford the expense of travel to and from that school. 

   (b)The letter from the mother’s solicitor to which the father referred is no doubt the letter dated 2 January 2008, several days before the scheduled handover, advising that she would not make R available for contact as she was concerned that R would be at risk whilst in the home of the father; in particular, she was concerned that a TV and DVD had been set up in R’s bedroom and the father and R had been spending time in the bedroom on the last visit.  The letter also conveyed the mother’s concern about two new boarders living at his home.  An offer was made for the father to have time for one week with R, being the last week of the holidays. 

   (c)But the father says he did not receive the letter until 21 January when his solicitor’s office reopened.  He says he received a further letter stating the mother would withhold contact in the last week of the holidays.  He alleges that in her communications with him the mother was loud and aggressive and in ‘desperation’ he has enrolled in Relationships Australia for counselling about communication in an effort to learn how to deal with her aggressive behaviour.  He has booked a joint session for 10 March if the mother will agree to attend. 

   (d)On 1 February and again on 8 February 2008 the mother did not allow him to pick R up from school to spend time with him the following week as provided in the interim orders.  When he arrived on the first occasion R was ready to get on the bus to her mother’s home and he did not want to upset her or make a scene.  On the second occasion the mother had already collected her from school when he arrived despite being informed by his solicitors of his intention to collect R.  She also would not allow him to speak with R by telephone on 6 February. 

   (e)In her brief oral evidence in reply, the mother disputed the facts so far as they relate to telephone calls but she did not otherwise deny what had occurred.  She says her reason for withholding R during the holiday period was out of concern for the risk to her from three weeks in his care.  After R had spent time with her father on Boxing Day she returned home and reported her father had bought her a TV and DVD which he had placed in her bedroom and they had spent the afternoon together in her bedroom watching DVDs.  This made the mother uncomfortable.  She also told her mother there were two boarders in the house whom she does not know.  This also made her feel uncomfortable.  The mother also says that before the end of the school year she arrived to collect R from school and found her lying on the floor of the classroom in pain.  She took her to the hospital where she was diagnosed with school sores and thrush.  This was a concern and contributed to her decision not to allow R to go to her father’s for the three weeks during the school holidays. 

   (f)The mother says the incident at school also led her to take R away from that school and enrol her at the S School.  She calls it inappropriate for a sick child to be left alone in a classroom without either of the parents being called. 

   (g)Finally, she denies refusing to allow telephone contact and says R had consistently tried to call her father.  She nominated many dates when this had been attempted and the father did not answer and nor did he respond to the many messages R had left for him on his answering machine by returning her calls. 

4. The hospital records tendered [exhibit 17], which include the attendance referred to by the mother, include pathology results.  They were not interpreted by anyone medically qualified but there is no mention of thrush; there is a reference to bacteria in the urine microbiology result and a reference to fungal elements in the microbiology from superficial sites.  In the written notes there is reference amongst other things to excoriation around the vulva and between the legs and several school sores on her buttocks.  There is a record of the mother relating R had been returned from a week in her father’s care and expressing concern about poor hygiene.  R was noted as being ‘bright, happy co-operative 7 yo girl’. 

5. Before leaving the background, perhaps some brief reference should be made to some of the witnesses whose evidence will not be mentioned elsewhere.  First, those called by the father:

   ·    Mr W, psychologist, provided a report dated 27 April 2006 in which he outlined his qualifications and that he had been conducting counselling sessions with the father.  He did not elaborate on their nature or purpose but recorded his observations of the father with R [favourable to the father] who accompanied her father to a session on one occasion.  It may well be that Mr W is the counsellor the father was referring to when he told the reporter he was seeking counselling to improve his self-esteem [para. 45]. 

   ·    Ms M, the father’s partner, gave some brief evidence of meeting the father in May 2006 and the development of their relationship which she referred to as ‘stable and long term’.  It otherwise constitutes a favourable character reference for the father. 

   ·    Ms A was a neighbour of the parties at M until they sold up in early 2007.  She makes favourable comments about the father as a neighbour and from her observations of him with R whereas the mother since the separation from the father had been rude to her. 

   ·    Ms NW is the father’s eldest daughter.  She related being advised by her father in a telephone call of R’s allegations of being hit by Mr H.  She asked to speak to R and says R ‘verified’ the information.  She swore another affidavit which gives her outlook on the positive qualities of her father during her upbringing, her awareness of the allegations of sexual abuse against him, and that he had never acted improperly towards her at any time including the 5 years she lived with him from the age of 13 years after her parents separated.  She also says she observed the mother smoking cigarettes and marijuana and consuming alcohol frequently when she was pregnant and her drug use caused arguments and tension in the relationship between the mother and her father. 

6. Turning to some of the additional evidence called by the mother:

   ·    Mrs LS’s affidavit corroborated the mother’s evidence that she was never at the Tavern on 21 September 2007, a date the publican had nominated as an occasion the mother was intoxicated and conducted herself in an aggressive manner. 

   ·    Mrs AN is a friend of the mother’s and Mr H.  Her evidence also corroborates the mother’s evidence that she was not at the Tavern on 21 September.  She also refers to the occasion the mother and Mr H did go to the Tavern on the night Geelong won the AFL grand final.  R was with her father and Mrs AN looked after S.  She also related what Mr H told her the next morning of events the previous evening at the Tavern. 

Issues

1. There are a number of specific issues agreed to be relevant and counsel for both parties and the ICL have addressed them in their written submissions so it will be appropriate to follow suit. 

• The mother’s history of alcohol and drug abuse and the extent to which that remains relevant to her life currently.

1. The issue relates to various periods of time: the more distant past, during the parties’ relationship, and the three years since they separated up to the present time.  There are some additional relevant facts:

   (a)In 1997 the mother presented at hospital seeking voluntary detoxification from alcohol and other drugs.  Records indicate she admitted to daily use of amphetamines, marijuana and heavy alcohol consumption and gave a history of drug use over the previous 15 years. 

   (b)Ms A’s evidence includes observation of the mother smoking marijuana in 2004, apparently in the home and in the presence of the father. 

2. It will have been noted in the summary of earlier orders that random drug testing was to be undertaken by both parties at the request of the ICL.  Requests were made on four occasions.  There were no positive results from the father.  The mother returned two ‘clean’ tests, she did not undertake one [she says she received it too late] and in July 2007 the other test returned positive for opiate and benzodiazepine.  The mother’s explanation for this was that she had taken Valium, which she had under an old prescription, to help her sleep.  She presented a doctor’s certificate to confirm she was suffering a mouth infection at the time. 

3. It will also be recalled that mention was made earlier of the Department’s requirement in 2002 that the mother curtail her alcohol intake and of the location of marijuana in the home in 2005 around the point of separation and the mother’s attendance at a drug diversion program in lieu of a charge of possession. 

4. It is the mother’s case that she did have problems with alcohol and drugs many years ago but it was not of the magnitude the father makes out; she has not used amphetamines since sometime before 1997; she admits to having used marijuana; she says she never did so in front of the children and she has not used marijuana since the separation; during the time with the father she would drink alcohol in times of stress in order to ‘cope’ with his violence; and she has reduced her consumption of alcohol since she left him.  Also, she is seeing a psychologist to help her deal with past addictive behaviours and to cope with the pressures of life. 

5. The father’s case, on the other hand, reflected in the submissions made on his behalf, contends that she has a long standing addiction to alcohol and other drugs; it was the cause of problems during their relationship resulting in aggressive and irresponsible behaviour by her; there can be no confidence she has overcome the problems; and she has attempted to minimise the history of her addiction and behaviour rather than demonstrate any insight into it and the need for change.  The magnitude of her problems is said to be evident from the 1997 hospital records, long before she met the father, which reflects a history she had not fully revealed.  The father’s evidence that during their relationship she was a heavy drinker and heavy user of drugs such as marijuana, amphetamines, and over-the-counter painkillers should be accepted and the mother’s suggestion that she only drank alcohol to excess or used other drugs in an attempt to deal with the father’s abuse has no foundation and should be rejected.  It reveals she accepts no responsibility for her own addiction and consequent behaviour.  Furthermore, the father’s evidence about her drink of choice and quantities of alcohol she consumed should be accepted in light of her contradictory responses on the topic.  As for the recent positive drug test, she explains this by reference to an old prescription for Valium but she gave conflicting evidence about why that was necessary.  Whatever the case, it suggests that in times of stress she will still turn to drugs.  The father’s case is also supported by the evidence of the events at the A Tavern last year.  Nothing turns on the incorrect date of 21 September given by the publican - the fact is the mother was there on an occasion and her own evidence about her level of sobriety stands in contrast to Mr H’s evidence about the alcohol consumed.  Accordingly, her evidence should be rejected as untruthful and seen as another attempt to minimise her alcohol consumption.  The submissions note the reporter’s comment that people can stop using alcohol and drugs by reason of life changing events, but it is said that the mother has had no therapy or counselling for long term addictions, the few days she spent in detoxification 10 years ago does not fall into that category, and the only life changing event has been a new partner and even there she has turned to alcohol and drugs at times.  All that said, there is also the submission that the father concedes ‘recent drug tests and other information’ suggest she has curbed her alcohol intake more recently and this is said to be the explanation for the father agreeing to increase R’s time with her mother to equal time. 

Discussion & conclusion

1. As for this last proposition put for the father, the consent orders for week about time were made in May 2007 and the random testing to be instigated by the ICL was a provision in those same orders.  It cannot be accepted, therefore, that the recent drug tests had any part in explaining why he agreed to R having equal time with her mother in May.  When he consented to those orders his case was propounding the views earlier outlined about her long history of substance abuse and he was contending that was the problem in their relationship and that was the explanation for some of the actions he had taken during various events.  Since then, and subsequent to the tests undertaken, he put the case of her excessive consumption of alcohol and consequent aggressive behaviour arising from the events at the A Tavern. 

2. For my part, mindful of the long and troubling history the mother has had with substance abuse, I am not persuaded the father’s case accurately assesses the mother’s current circumstances.

   (a)There is no doubting the seriousness of her state or the magnitude of the problem in 1997 when she voluntarily presented at the Hospital where she remained for detoxification over several days.  This is evident from a reading of the hospital file [exhibit 5].  Substances noted in the discharge summary are alcohol, amphetamines and marijuana and there is reference to Valium which was prescribed on discharge.  Other documents produced by the Queensland police [exhibit 7] give some indication of the problems in the relationship between her and her former husband in the period leading up to the hospital admission.  But her voluntary admission might be seen as an indicator of her preparedness, at least at that time, to seek assistance to address the problem. 

   (b)Nor is there any doubt that during the almost six years of her relationship with the father from 1999 onwards she drank alcohol to excess and used other drugs on occasions.  Her intoxication on presentation at the hospital in November 2002 is an indicator of this.  There is also little room for doubt, given the impression gained of her personality and general presentation, that when intoxicated she would express her views loudly, in a forthright manner, and probably not in decorous language if she saw the situation warranting it.  The exchange with the worker at the Tavern about the water is an indicator of this and Mr H’s description of her as ‘loud, period’ was probably entirely accurate. 

   (c)It is likely, it is accepted, that she has tended to minimise the magnitude of the problems that she so plainly had at various times.  An example of that is the reporter’s note of her acknowledgement that she ‘may have had a problem’ with alcohol and prescription medications such as Valium and painkillers when living in northern NSW.  Another example is her account of the time she was at the Tavern after the grand final win.  Plainly alcohol was consumed to excess on that occasion and it would be naïve to see it otherwise.  The point of the celebration is more that they did not have any of the children they are responsible for in their care and appropriate arrangements had been made for child care while they went out. 

   (d)It is also noted that around that time, in October 2007, the Department provided a document after being invited to intervene in the proceedings and that records the mother admitting drinking alcohol but nothing was identified as being amiss and the report noted ‘the home presented clean, tidy and no evidence of neglect or alcohol abuse by [the mother].’

   (e)Also, the fact that the father agreed to orders in May 2007 for equal time tends to suggest that he does not in fact see this issue as attracting the same weight as the time and emphasis given to it in putting his case. 

3. It is the submission of the ICL that there is no evidence the mother is currently using amphetamines or abusing prescription drugs or continuing to use marijuana and nor is there any evidence of her having breached orders imposing drug and alcohol restrictions.  That is accepted.  There is no indicator [apart from the evidence surrounding the A Tavern episodes] - either from witnesses who have observed her intoxicated or effected by substances or from public records such as driving offences or police records of disorderly behaviour or something of that kind - to discredit her own evidence that since she left the father she has changed her lifestyle so far as substances are concerned. 

4. None of that is to suggest the issue is of no moment or that it has been disregarded in the process of arriving at an outcome.  Obviously the care of a child requires, amongst other things, that a parent be available, alert and vigilant and if the parent’s capacity is impaired by substances, whether that is alcohol or other mind/mood altering drugs, then the child may be at risk of harm.  Therefore, while it is accepted that the mother’s use of alcohol has been curbed and she is not using other drugs as she has in the past, that needs to remain the position from here on even when things go wrong, as they sometimes do.  My assessment of the mother allows for some confidence that will be the case. 

• Mr H’s discipline of the child and whether the child’s father is the instigator or source of any statements made by the child implicating Mr H in wrongdoing in particular about excessive force or force at all in her discipline.

1. There are two parts to this issue.  First, to the evidence of Mr H’s behaviour towards R and then to the part the father may have played in it. 

2. The submissions for the father acknowledge there is unlikely to be a finding that the child is at risk of abuse from Mr H.  Whether he has hit her as suggested may never be known, it is said, and one possible explanation for the statements R has made is that she has said things ‘to and on behalf of each parent as she has felt appropriate’.  That notwithstanding, the submissions go on to identify those matters that would support a finding against Mr H.  Reference is made to R having repeated her statements of Mr H’s behaviour to others - to two doctors, to her older sister, and to her teacher.  The submissions address criticisms directed to the father’s failure to give direct evidence of what R had said to him initially in his affidavit and other criticisms directed to his failure to take steps to protect R or raise it with the mother or Mr H.  It is also said that the mother’s view - to the effect that the father influenced the child to say these things and then forced her to repeat them - demonstrates an alarming lack of insight into her own behaviour.  It is pointed out that the child’s retraction followed times spent with her mother who put R in the position of ‘having no choice’ but to retract the allegations and blame her father for having made them up.  Yet the child saying ‘dad told me what to say’ is ambiguous and entirely consistent with her father telling her to tell the person what she had told him.  Other submissions go to aspects of Mr H’s history and his former relationship and the suggestion is made that he is ‘quick to anger’.

Discussion & conclusion

1. My own analysis and impressions lead to these conclusions:

   (a)The fact that both did agree in the past on two occasions for the child to spend substantial time in the other’s care implies an acknowledgement by each of the role and capability of the other.  Yet they have continued the dispute, pulling in various authorities and others in the process, to propound the other’s shortcomings as a parent - all of which sits rather uncomfortably with what they consented to and what they each now propose as an outcome. 

   (b)While it hardly qualifies as a ringing endorsement – the father’s ‘attempt’ to be a good father – the mother made a concession of a kind and she was able to acknowledge the father loves R and this is reciprocated.  On the other hand, she has withheld the child and she has pursued issues squarely related to the father’s capacity to appropriately care for R even though she has given her consent to substantial time sharing arrangements, including the orders of May 2007.  This raises the question whether she has been genuinely motivated or whether her actions have been an attempt to impair or sever the relationship between R and her father, as the submissions on his behalf contend. 

   (c)It is my assessment – and this finds support in the submissions of the ICL - that she has genuinely struggled between recognising R’s relationship with her father and supporting her time with him on the one hand and pursuing genuine concerns about R’s safety in his care on the other.  Those concerns arise not unnaturally having regard to the history of allegations in the past involving offences against minors, including by her other daughter, and there has fed into that various issues to do with the father’s household or decisions he has taken – sleeping arrangements, watching television on mattresses, massages and so on - which have enlivened, for her, concerns about her daughter’s safety.  The ICL correctly submits that the mother is in a difficult position and some of the father’s decisions [the TV and DVD in her room and spending time there] lacked insight.  Having said that, it is also recognised that she proposes an outcome here that would see R spend regular time in her father’s care, albeit not for the duration he is proposing although it may well be, as the reporter noted at one point, that in doing so she is being ‘pragmatic’ about the state of the evidence.  Nonetheless, I find her actions to have been not unreasonable and motivated by a desire to act to protect her daughter. 

   (d)The level of dispute between the parents and the risk of harm to R is the subject not only of comment by the reporter but also the subject of risk assessment more than once by protection authorities called in to investigate allegations of one kind or another.  There is no doubt their poor relationship and their antipathetic attitude towards each other has impacted on their daughter and the opportunities she might otherwise be given.  She has told authorities she is ‘sad’ they do not get on; she has been exposed directly to conflict between them; at one point they were both taking tape recorders to the changeover of her care [so they told the reporter]; she has been directly caught up in their intemperate and ill-considered attempts to gather evidence to support one aspect or another of the case they wanted to present to the Court, including interviews and/or consultations with professionals with no other purpose in mind; she has had her family arrangements negatively aired in her school setting; she has had her attendance at extra-curricula activities put in doubt or put aside [eg. the disco; Little Athletics]; and she has had the experience of her step-father’s standard of care and attitude towards her called into question in her mind. 

   (f)What is surprising - perhaps it says something of her current resilience - is that she is described variously by others as a bright, happy child who is doing very well at school.  But that must be in jeopardy if things continue along the same vein.  In the first Report there is a note of caution about the child’s prospects in that event:

   ‘She will either learn to survive within this hostile environment, or become alienated from one parent.  Either option would be most damaging for such a bright young girl.’

   (g)      In the second Report [paragraph 49] about a year later:

   ‘I formed an impression that [R] is struggling with the pressures on her of living in such a high level of conflict.’

   (h)E seemed to perceive her young sister to be struggling with the conflict at the time she spoke to the reporter more recently [paragraph 54]:

   ‘……and her perception that [R] is struggling with the stress of being caught in the conflict as well as feeling responsible for her father’s distress, is of great concern…..’

   (i)As I find, there are serious shortcomings in both parents’ capacity to appreciate the impact their dispute has on their daughter or, if they are aware of it, there are serious shortcomings in their ability to bring about the changes that would protect her from the consequences. 

   (j)As for the future, the submissions for the ICL suggest there is no reason to be optimistic because no major change in the dynamics of the parental relationship can be seen on the horizon.  I agree – though it may be worth the parents becoming involved, albeit separate, in an accredited course to instil an appreciation of the consequences for their daughter.  Whatever the outcome, provision will be made for this in the orders. 

• the child’s attachments

1. The reliable and more objective assessment of R’s attachments comes from the reporter whose evidence is accepted. 

2. It is apparent from the first report that she has a good relationship with each of her parents, with E and with Mr H.  She saw all of them as deserving in making her three wishes.  In the more recent report this is said [paragraph 48]:

   ‘During the observations [R] demonstrated a close, affectionate relationship with each parent, and with her sister, [E], and to a slightly lesser extent with her step father and step-sister.  There was some evidence during the separate observations that her mother is more emotionally responsive to her and more attuned to her needs, than her father, although [R] appeared to respond well to both of her parents.’

3. In her summary the reporter says [paragraph 49]:

   ‘In summary, there is no doubt that [R] is attached to both parents and her sister, [E].  She appears to view all of her family members as one unit.’

• The risk to the child of exposure to wrongdoing by her father of a sexual nature having regard to complaints made by various persons of that kind against him.

1. Counsel for the ICL calls this a most troubling issue.  I agree. 

2. The father’s case has been that she has pursued this issue as a strategy to gain advantage in her case in these proceedings, but I reject that.  She has, as counsel for the ICL points out, maintained her belief about E having been abused by the father although she appears to have accepted no further action will be taken by authorities and the child’s complaint in 2005 was withdrawn.  She did not during investigations have a steadfast and fixed belief – irrespective of the facts presented to her - that R has been harmed by her father; rather, she fluctuated in her views and, it is apparent from records, she had an open mind and was prepared to consider alternatives.  The submissions on her behalf say her view has become more entrenched as a result of the evidence at the hearing and there is no reason to doubt it.  Nonetheless, the point is that she was not a person who leaped on this issue irrespective of the facts and would not deviate from an early and fixed view of it.  She may well have over-reacted to some of the things R has said to her or she has observed – questions about sucking elbows and nipples or reports massaging her father’s back or she sees sleeping arrangements or hears of lying on mattresses watching television and so on - but that is not surprising given her knowledge of the history of allegations against the father from various sources and the similarity in some respects of modus operandi and ages of the complainants, including E’s allegations.  As the ICL points out, she appears to have kept the knowledge of the allegations and her own views of it from R - the support for that comes from the reporter’s assessment of R’s relationship with her father – and so it is apparent she has not imposed her views directly on her daughter to colour her attitude towards her father.  It is accepted, therefore, that it has been a troubling issue for the mother and that her pursuit of these concerns has not been strategic or, as it was put for the father at one point, that she has ‘played the alleged sexual risk card at every conceivable opportunity.’

3. Of the earlier allegations made during 1999, which the father dismisses as part of a conspiracy between the women who were motivated by ill will towards him, there can be no finding made here.  Nor can any finding be made about the statements made by E about the father’s conduct towards her, though it is recognised she has consistently maintained her account of her experience over time.  Not even on the civil standard of proof with due regard being had to the discussion in Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362 could any findings be made. That is not the function of these proceedings, as authorities such as the leading case from the High Court of M and M (1988) 166 CLR 69 make clear. Guilt or innocence with respect to allegations is not the question, but whether the making of an order is in the best interests of the child. In doing that, it may be necessary in a particular case to consider and determine if there is risk of abuse occurring if certain orders are made and in that event to evaluate the magnitude of that risk. The existence and magnitude of the risk of abuse, as M and M notes, is ‘a fundamental matter to be taken into account in deciding issues’ of what was previously referred to as custody and access.  As their Honours noted:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469).  This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’

4. See also the more recent decision of the Full Court in Potter and Potter [2007] FamCA 350 which cited the much earlier discussion by Fogarty J in N v S (1996) FLC 92-655 at 82,713 of ‘unacceptable risk’ and the approach to the assessment of it; namely, the essential importance of giving real and substantial consideration to where the facts fall and to explain why or why they do not give rise to an unacceptable risk of harm to the child.

5. Having excluded any question of a finding about the earlier allegations by others and by E, it remains nonetheless to consider the existence of risk to this child of abuse of a sexual nature by her father.  First, there is Mr C’s evidence to be considered.  After undertaking the assessment and analysing scores from testing areas such as impression management and self-deceptive enhancement, as set out in his report, he concluded that while he could not eliminate the possibility of risk of sexual harm to R by her father, but he regarded the risk as low.  He suggested the mother be aware of possible signs of abuse and the child be taught self protective behaviour.  This was similar to the recommendation made by the authorities and the reporter. 

6. The facts of this case, recounted earlier, do indicate a risk; it is more a question of assessing its magnitude.  On that, there are a number of considerations to be borne in mind. 

   (a)There is the evidence of the father’s daughter, NW, who was raised by him without having cause for concerns about the appropriateness of his behaviour.  It is difficult to see that she would be motivated to cover up for him in any way, knowing as she does the history of the allegations against him and knowing as she plainly must that R’s interests are at the heart of the decision to be made in these proceedings. 

   (b)There is also the fact that R has not made any statement implicating her father in wrongdoing of a sexual nature.  Nor has she exhibited in her general demeanour any of the behaviour that might be suggestive of secrets or abuse.  Indeed the mother acknowledged to authorities, during earlier investigations at least, that she had no reason to believe R has ever been harmed sexually.  Added to this lack of indicia, there is the close relationship between R and her father, reliably assessed by the reporter, and her comfort in his company.  All of this runs counter to her having been harmed. 

   (c)There is then the protective behaviour training that R has had and her awareness of being ‘safe’ as well as her mother’s awareness of issues indicative of abuse.  There can be added her good relationship with her mother and her closeness to her sister, E, and the protective attitude they have towards her. 

   (d)There is also, of course, those things that have given rise to concern for the mother and caused her to take action – statements about sucking, the sleeping arrangements, television and massages and the like – which do not establish abuse but do suggest a lack of insight by the father and a disregard for how others, more particularly R’s mother, might see some of his decisions in the circumstance of his history of having had allegations made against him that he sexually abused minors. 

7. In the final analysis, consistent with the submissions of counsel for the ICL, I am unable to find that the level of risk to this child of harm from her father through sexual wrongdoing could be called unacceptable.  There has not been any abuse and there are protective safeguards in place to adequately meet the shadow cast by the earlier allegations.  There can be confidence the mother will take steps necessary to protect her daughters should the need arise.  Despite the withholding that has occurred when issues of concern have arisen she has ensured R’s relationship with her father has been maintained and – whether or not she has ‘told the whole world’ as the father submits - she appears not to have done anything to contaminate the child’s attitude towards her father by making her aware of the past allegations. 

• The mother’s belief as to wrongdoing by the father towards others and consequently her belief as to the risk to this child of a repetition of that behaviour.

1. This has already been discussed and need not be repeated.  In summary, the mother’s concerns in the circumstances have not been unreasonable and nor is the fact that her concerns have escalated rather than dissipated.  As I find, they are genuinely held.  The father has done nothing to assist alleviate concerns. 

Best interests

1. I turn now to the considerations relevant to the child’s best interests which in some instances require little further elaboration given the findings made in earlier discussion of the issues. 

Primary considerations

(a)      the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Given R’s close relationship with both parents obviously she would benefit from the opportunity to maintain those relationships in so far as that is not inconsistent with her need for protection.  So far as that relates to her time with each parent, they are both proposing there be regular time spent by her with each parent, both during school term and during school holidays.  The difference between them relates to the apportionment of that time, as well as other aspects of her parental arrangements. 

   (b)      the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

2. The evidence has called into question risks to this child’s well being from several directions and as they have already been discussed it will suffice here to note these conclusions:

   (a)This child is not at risk of harm by reason of her association with Mr H, her step-father, or his presence in her household.

   (b)There must be a level of risk of harm arising from the unexplored and indeterminate evidence related to allegations about the father’s past sexual abuse of minors, including the statements made by E related to events during 2002 while living in New South Wales, but the magnitude of risk of harm to this child if orders were to be made providing for her to be in her father’s care is not assessed as being unacceptable. 

   (c)The child is at risk of psychological and emotional harm from any continuation of the unabated conflict between her parents and their failure to achieve strategies to communicate effectively as parents. 

   (d)The child is not at risk of harm from her mother’s history of alcohol and drugs. 

Additional considerations

(a)      any views expressed by the child and any factors ……relevant to the weight it should give to the child’s views

1. R is not of an age or stage of development to appreciate the implications of her views about her living arrangements, in particular how her time should be apportioned between her parents.  Now 7 years of age, there is no suggestion from anywhere to the contrary. 

   (b)      the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons …

2. Nonetheless, while her views do not attract weight, her attachments and the nature of her important relationships are of significance in any consideration of her well-being overall and the decision should ensure those attachments and important relationships are maintained in so far as that is consistent with her best interests and reasonably practicable. 

3. She was seen by the reporter on two occasions about a year apart, the most recent occasion being in September 2007.  The assessment of her towards the end of 2006 was as bright and confident, revelling in her own sense of competence.  She was able to discuss her schedule between her parents and appeared to be quite accepting of it, correcting at one point her comment that it would be good to spend more time with her mother to say she wanted to live with both – interpreted to mean she wanted some kind of shared care and indicating she was comfortable with some level of shared care.  There was no indication at that time she was looking for a major change in her schedule.  That said, the reporter foreshadowed she would not continue to thrive if the hostility and poor communication between her parents did not abate – leaving her to survive within the hostile environment or become alienated from one parent, a most damaging option for such a bright young girl in the reporter’s opinion. 

4. A year later she presented as more subdued and initially asked if her mother could accompany her into the room although she settled easily.  Asked about her arrangements at this time [pursuant to the current orders] she said she changed every Friday and added ‘sometimes I wish it could be easier’ but she was unable to elaborate.  She mentioned feeling safe at both parents’ homes.  The reporter’s interpretation of R’s remark that she wants a ‘normal family’ who do not ‘fight’ is that she is pleading for some reprieve from the constant conflict she experiences between her parents and concern was expressed that she may think she is creating the problems around her.

1. She was again inclusive of the whole group as her family unit when taken to drawing and was unable to choose between parents when given the desert island option.  It was the reporter’s assessment she has a close, affectionate relationship with each parent and with her sister E and to a slightly lesser extent with her step-father, Mr H, and her step-sister, S.  It was also the assessment that R considers her relationship with E as very important to her. 

   (c)       the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

   (i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents – including taking or facilitating the opportunity to participate in decision making, spending time and communicating with the child and maintain the child
   (f)       the capacity of: (i) each of the child’s parents; and (ii) any other person …to provide for the needs of the child, including emotional and intellectual needs

2. In the main, these matters have been discussed and findings made earlier.  There are shortcomings in the attitude of each about the other’s parental ability though at least the mother has been able to make something of a concession about the father attempting to be a good father and to acknowledge her father loves her and that is reciprocated by R.  He has been unable to provide that. 

3. They have an appropriate attitude towards their daughter and fulfil their responsibilities as parents in many ways by making provision for her day to day care, seeing to her education and encouraging her in extra-curricula activities consistent with her interests.  Whatever the criticisms along the way from either side, it could be expected they would continue to meet these responsibilities in the same way they have until this point.  As also discussed, by their entrenched and unabated conflict neither are meeting their parental responsibilities to her in another important ways, and neither has demonstrated a capacity to meet her need for a stable and co-operative arrangement between them. 

4. The reporter commented more recently that the mother is more emotionally responsive to R and more attuned to her needs than her father although R appeared to respond well to both of her parents.  There is also the suggestion from the reporter that the father identifies solitary pursuits during his time with R – beach visits, bike riding, cooking together - and [paragraph 20] ‘his presentation of their weekly routine suggested that he enjoys her company and that they live a fairly insular home life.’  This picture compares somewhat unfavourably with home life with her mother where she has her sister to whom she is close as well as her step-sister and her step-father with whom she also has a good relationship. 

   (d)      the likely effect of any changes in the child’s circumstances….

5. All of the indicators from the evidence are that the arrangements under the interim orders are not working satisfactorily in this child’s interests.  The parents cannot cooperate and there is no optimism that will change.  The reporter says it is not working and it is her recommendation, which has the support of the ICL, that there be a change and R live predominantly with one parent.  Notwithstanding the father’s submissions against that, I am satisfied it is necessary to see her settled in one household rather than move between them as she has been. 

6. No doubt she would adjust to such an arrangement were she to be with either parent predominantly; however, placement with her father in those circumstances would mean she would be separated from her sister E for much longer than she is now and there is reason for concern about how she would cope with that.  It is the reporter’s recommendation that she live with her mother provided there are no risks arising for her from the claims about Mr H.  That proviso has been met. 

   (e)       the practical difficulty and expense of a child spending time with and communicating with a parent …..

7. The parents live some distance apart, though in the scheme of things the distance is not a particular difficulty of itself.  The difficulty lies more with the expense of covering the distance, more so for the father if R is to remain at the S School and the orders mean he would be required to travel to and from her school.  Were she to be returned to the M School it would be more convenient for the father and less so for the mother who would have the added expense of travel. 

   (g)      the maturity, sex, lifestyle and background …..of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

8. The reporter has mentioned in her evidence some advantage for R, now 7 years of age, being with the parent of the same gender if she were to live predominantly with one parent.  The composition of the father’s household in the future is not known and nor is anything known of the boarders he currently has living there. 

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

9. This has been discussed earlier.  There is no suggestion that there has been physical violence between the parties since the separation.  The evidence is of threats and abuse at changeovers to which the child has been exposed. 

   (l)       whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

10. This is not a case where further interim orders are indicated with a review at some later stage.  Orders can be made now on a final basis to conclude the litigation. 

Parental responsibility

1. I cannot be satisfied this is a case where the presumption of equal shared parental responsibility should apply.  It is rebutted by the past violence in the parties’ relationship, by the entrenched hostility and antipathy they maintain towards each other, and their inability to effectively communicate on matters related to decisions about their child.  A reasonable expectation that decisions about long term issues could be resolved in a timely and constructive way runs counter to all of the evidence.  To impose it could only embroil this child in further conflict and delay decisions being made.  As I find, shared parental responsibility is undesirable and impracticable. 

Time

1. The presumption rebutted, it is not necessary to consider equal time and its reasonably practicability but the father’s application makes it necessary to do so notwithstanding.  However, little more needs to be said about it apart from what has been said already.  The week about is not working.  There is not the necessary level of co-operation between the parents; they have no shared view of her upbringing; they have no mutual respect as parents or ability to effectively communicate as parents; they have shown no ability to compromise; and there are destabilising influences in the environment around R. 

2. The evidence establishes, and it is accepted, that the child’s interests would be met if she were to live predominantly with one parent and spend time with the other on a regular basis.  In my assessment the predominant carer should be her mother.  She has a close relationship with her mother, her mother is protective of her and her safety is not at risk in her mother’s care, her mother’s household is stable and includes her sister E to whom she is close as well as others to whom she is close, and her mother is assessed as more attuned to and more responsive to her needs.  On the other hand, while she also has a close relationship with her father, his household offers less of a family atmosphere and the members of his household in the future are unknown, he provides more isolated pursuits, and he is not as attuned to her needs as her mother. 

Conclusion

1. In considering the apportionment of her time, I am satisfied that the proposals put forward by the ICL in closing submissions are consistent with R’s best interests.  She will live with her mother predominantly for the reasons assessed, and she will have time with her father – not only regularly during school terms but during school holidays and on appropriate special occasions.  The weekend arrangement proposed is shorter than that recommended by the reporter last year but it is appropriate nonetheless.  R will remain at the S School which will involve more travel for the father and also for R in getting to and from school.  It is appropriate in those circumstances therefore for the time to run from Friday after school until Monday morning. 

2. The changeover at the school is necessary given the uproars that have occurred in the past, as are the other orders proposed about her collection and return arrangements.  This is designed to minimise as far as possible the opportunity for the parents to have any contact with each other on changeover of her care.

3. There are a suite of other orders proposed by the ICL and having reviewed them, they are all considered appropriate to the circumstances. 

SCHEDULE OF AMENDED ORDERS SOUGHT BY FATHER IN OPENING

[per summary of case document]

1. In the event that:

   a. the Court is satisfied that:

   (i)The mothers partner, [Mr H], does not present as a physical risk to the child; and

   (ii)The mother does not present as a psychological risk to the child by encouraging her to believe she is at risk of sexual abuse by the father, then the child, [R] born … November 2000 shall live with each parent on equal time basis being:

   a) from after school Friday until after school the following Friday, during school terms, and;

   b)        half of each school holiday period

   b. the Court is not satisfied that:

   (i) The mothers partner, [Mr H], does not present as a physical risk to the child; and / or

   (ii)The mother does not present as a psychological risk to the child by encouraging her to believe she is at risk of sexual abuse by the father, then the child, [R] born […] November 2000 shall reside with the father

2. The father and mother shall have joint parental responsibility for the child.

3. In the event Orders are made that the child live with the father, then the child shall spend time with the mother as follows:

   a.Each alternate week from after school on the Wednesday until 4pm on the following Sunday, with the mother to collect the child, from school and the father to collect the child from the mothers home at [A].

   b.For the first half of each QLD gazetted school holiday period in 2008 and each alternate years

   c.For the second half of each QLD gazetted school holiday period in 2007 and each alternate year

   d.        From 10am until 5pm on mothers day, with

   e.On the mothers birthday, from 10am until 5pm where such day falls on a non school, day, and from after school until 8.00pm where such day falls on a school day

   f.On the child’s sister [E’s] birthday from l0am until 5pm where such day falls on a non school day, and from after school until 8.00pm where such day falls on a school day

   g.On the child's birthday, from l0am until 2pm where such day falls on a non school day and from after school until 6pm where such day falls on a school day

4. The child shall communicate with the parent with whom she is not otherwise living, by telephone at all reasonable times and particularly:

   a.each Monday, with the parent with whom the child is not living to initiate the phone call and the phone call to commence between 6.30 and 7.00pm

   b.On the child's birthday, from 2pm until 6pm except where such day falls at the commencement of the time to be spent with the mother, in which case, the mother will collect the child at 6pm on that day and unless such day falls at the end of the time with the mother in which case, the child will return to the father at 6pm on that day.

5. That where changeovers occur on school days, the parent with whom the child is commence spending time, will collect the child from school and on non-school days, the parent with whom the child is to commence spending time will collect the child from the other parent's home, or such other place as the parties agree from time to time, in writing

6. The mother shall not permit [Mr H] to discipline the child, or to assault, harass, or intimidate the child

7. Neither parent shall use physical discipline to discipline the child

8. The mother shall give the father the first opportunity to care for the child in the event she is unable to do so for work or other reasons

9. Neither party shall use or be under the influence of excessive alcohol, excessive prescriptive medication, or any illegal substance when the child is in that parent’s care.

10. The child shall attend [M] School, unless the parents agree otherwise, in writing, and each parent shall be responsible to ensure the child attends her school as is required by that school.

11. Both parents are at liberty to attend at the child school from time to time, in accordance with the guidelines of that school, and this Order shall serve as authority for both parents to attend at the child's school and to receive copies of any school Reports, or other written material or information, regarding the child's attendance at and progress at the school.

12. Neither parent shall denigrate the other to or within the presence of the child, or permit the child to be present when any other person is doing so.

13. Neither parent shall swear in the presence or hearing of the child, or permit the child to be present when any other person is doing so.

14. Each parent shall keep the other informed of their address and telephone contact number at all times.

15. Neither party shall remove the child from the [northern Queensland] area without first notifying the other reasonable notice of their intention to do so.”

SCHEDULE OF AMENDED ORDERS SOUGHT BY MOTHER IN OPENING

[per summary of case document]

1. That the child [R] born […] November 2000 live with the mother.

2. That the mother have sole parental responsibility for the child [R].

3. That upon the father attending on [Mr C] or some other similarly qualified counsellor to discuss his Anger Management issues and his history of sexual impropriety and attending such treatment as recommended by such counsellor the father spend time with and communicate with the child as follows:

   (a)      each alternate weekend from 9.00am Saturday to 4.00pm Sunday;

   (b) for the first half of each Queensland gazetted school holiday period in 2008 and each alternate year thereafter;

   (c) for the second half of each Queensland gazetted school holiday period in 2007 and each alternate year thereafter;

   (d)      from 10.00am to 5.00pm on Father's Day;

   (e) on the father's birthday from 10.00am to 5.00pm if such day falls on a non school day and from after school until 7.00pm if such day falls on a school day;

   (f) on the child's birthday from 10.00am to 2.00pm where such day falls on a non school day and from after school until 6.00pm where such day falls on a school day;

   (g) by telephone each Wednesday between 6.00pm and 7.00pm with the mother to initiate the call.

4. Notwithstanding the terms of the previous Orders the child will spend time with and communicate with the mother as follows:

   (a) on the child's sister [E’s] birthday from 10.00am to 5.00pm when such day falls on a non school day and from after school until 7.00pm if such day falls on a school day;

   (b) on the mother's birthday from 10.00am to 2.00pm if such day falls on a non school day and from after school until 7.00pm when such day falls on a school day;

   (c)       from 10.00am to 5.00pm on Mother's Day.

5. Until such time as the father has the counselling as outlined in Clause 3 the father have 3 hours each alternate Saturday with [the child] supervised by a person as agreed and if such supervisor requires payment the father be responsible for same.

6. Neither party shall use or be under the influence of excessive alcohol or any illegal substance when the child is in that parents care.

7. The child shall attend [S] School from the beginning of the 2008 school year.

8. Both parents are at liberty to attend at the school from time to time in accordance with the guidelines of that school and this Order shall serve as authority for both parents to attend the child's school and to receive copies of any school report or other written material or information regarding the child's attendance at and progress at the school.

9. Neither parent shall denigrate the other to or within the presence of the child or permit the child to be present when the other person is doing so.

10. Each parent shall keep the other informed of their address and telephone contact number at all times.”

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: