Yeddich and Meier

FAMILY COURT OF AUSTRALIA

YEDDICH & MEIER

[2007] FamCA 1739

FAMILY LAW – CHILDREN – With whom a child lives – Allegation of Sexual Abuse

Family Law Act 1975 (Cth)

WK & SR (1997) FLC 92-787

APPLICANT:

Mr Yeddich

RESPONDENT:

Ms Meier

INTERVENOR:

FILE NUMBER:

PAF

926

2006

DATE DELIVERED:

24 January 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

FLOHM J

HEARING DATE:

2-5 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Thistleton

SOLICITOR FOR THE APPLICANT:

H C Stathis & Co

COUNSEL FOR THE RESPONDENT:

Mr D Maddox

SOLICITOR FOR THE RESPONDENT:

James Papas Solicitors

COUNSEL FOR THE INTERVENOR:

Ms E Boyle

SOLICITOR FOR THE INTERVENOR:

Legal Aid Commission of NSW

Orders

That all previous parenting orders in relation to S born … November 2000 (“the child”) be vacated.
That the child is to live with Mr Yeddich (“the father”) who is to have sole parental responsibility for decisions relating to the major long-term issues for the child.
That the child is to spend time with Ms Meier (“the mother”) as follows:
(a)From the date of these Orders for a period of six months:
(i)By telephone on Monday, Wednesday, Friday and Sunday of each week at 7.00pm for up to ten minutes, the father to facilitate the child initiating the call.
(ii)No sooner than two weeks from the date of these Orders and as soon as the Central West Contact Service (“CWCS”) can provide supervision, for not more than one hour every Saturday unless otherwise recommended by the child’s treating therapist.
(b)Then until the child’s 8^th birthday:
(i)By telephone two times per week as agreed between the father and the mother and in the absence of agreement on Thursday and Sunday of each week at 7.00pm.
(ii)Every second Saturday for two hours supervised by the CWCS, unless otherwise recommended by the child’s treating therapist.
(c)From the child’s 8^th birthday until the child’s 9^th birthday:
(i)By telephone two times per week as agreed between the father and the mother, and in the absence of agreement on Thursday and Sunday of each week at 7.00pm.
(ii)Half a day per week unsupervised as agreed between the father and the mother and in the absence of agreement each Saturday from 10.00am to 2.00pm.
(d)From the child’s 9^th birthday until the child’s 10^th birthday:
(i)By telephone two times per week as agreed between the father and the mother, and in the absence of agreement on Thursday and Sunday of each week at 7.00pm.
(ii)Every Saturday from 9.00am to 5.00pm.
(e)From the child’s 10^th birthday, November 2010:
(i)By telephone two times per week as agreed between the father and the mother, and in the absence of agreement on Thursday and Sunday of each week at 7.00pm.
(ii)During school terms each alternate second weekend from after school on Friday until 5.00pm on Sunday.
(iii)For the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years.
(iv)From 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years PROVIDED THAT in even numbered years the child is returned to live with the father from 4.00pm on Christmas Day until 4.00pm on Boxing Day.
(v)For six hours on Russian Christmas Day as agreed between the father and the mother and in the absence of agreement from 1.00pm until 7.00pm PROVIDED THAT if Russian Christmas Day falls during the time the child is spending time with the mother during the school holidays the child is to live with the father from 1.00pm to 7.00pm on that day.
That the mother and the father are to:
(a)Contact the CWCS within seven (7) days to arrange an appointment for assessment for suitability for supervision by the CWCS and attend such assessment.
(b)Comply with any appointments made by the CWCS for supervision of the time the child spends with the mother.
(c)Comply with all reasonable rules of the CWCS and all reasonable requests or directions of the staff of the CWCS.
That for the purpose of the child spending time with the mother supervised by the CWCS, the father is to deliver the child to and collect the child from the CWCS at the times appointed by that Service.
That the father and the mother are to equally share the cost of the supervision by the CWCS.
That for the purpose of all other time the child spends with the mother, when that time begins at the conclusion of a school day the mother or her nominee is to collect the child from his school, and when that time commences on a non-school day the mother or her nominee is to collect the child from the father or his nominee at the father’s home, and the father or his nominee is to collect the child from the mother or her nominee at the mother’s home at the conclusion of the time the child spends with the mother.
That the father is to facilitate the child spending time with D Meier (“D”) as arranged between the father and D for not more than four hours per week until the child is eight years old PROVIDED THAT D does not allow the mother to attend with him during times he spends with the child.
That after the child turns eight years old the father is to facilitate the child spending time with D as agreed between the father and D.
That the appointment for an Independent Children’s Lawyer continue for a further twelve months from the date of these Orders.
That the father is to ensure that the child attends upon a child and family psychiatrist or psychologist as recommended by Dr P and facilitated by the Independent Children’s Lawyer for such period as recommended by such child and family psychiatrist or psychologist.
That the father is to pay the cost of the child attending upon a child and family psychiatrist or psychologist.
That the Independent Children’s Lawyer is granted leave to forward to any such child and family psychiatrist or psychologist a copy of Dr P’s report dated 21 December 2006, a copy of the Magellan Report dated 19 December 2006 and a copy of these Orders.
That within twelve months of the child commencing to live with the father, the father is to complete a “Triple P” Parenting Course or Centacare “Hey Dad” Parenting Course or similar parenting course.
That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the child, and from causing or permitting any other person to so denigrate to or in the presence or hearing of the child.
That the father is to sign all documents and do all acts necessary to authorise the school at which the child may from time to time attend:
(a)to furnish the mother with copies of all school reports, notices and advices concerning the child and any activity involving the child;
(b)to make available to the mother order forms for school photographs of the child.
That each parent is to provide to the other as soon as possible after such occurrence, details of any illness or injury to the child whilst in their care requiring specialist medical attention or hospitalisation, including the name and address of the medical specialist or hospital.
That the father is to keep the mother informed of any specialist medical attention or hospitalisation the child may require.
That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.
That all outstanding applications are dismissed and removed from the Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF926 of 2006

MR YEDDICH

Applicant

And

MS MEIER

Respondent

REASONS FOR JUDGMENT

The competing applications before the Court are brought by Mr Yeddich (“the father”) and Ms Meier (“the mother”) and they relate to the issues of which parent S, born in November 2000 (“the child”) will live with and how much time he will spend with the other parent.

The parties' proposals and the orders sought

In an Application filed on 29 March 2006, the father sought the following orders:
1.That as and from the date of these Orders the child of the relationship, [S], born […] November 2000, reside with the Mother.
2.That the Father have contact with the child as follows:
a.Each alternate weekend from Friday evening at 6.00pm to Sunday evening at 7.00pm from the date of these orders;
b.Half of all school holidays as agreed between the parties, and failing agreement, for the first half of school holiday period in odd numbered years and the second half in even numbered years;
c.On Father’s Day from 9.00am to 7.00pm, if not already a contact weekend;
d.On the child’s birthday, from 9.00am to 2.00pm if the birthday is not already a contact weekend. If the birthday falls on a school day, then from 5.30pm to 8.30pm.
e.Half of Christmas Day as agreed between the parties, failing agreement for the first half of the day in odd numbered years and the second half of the day in even numbered years.
f.Half of Russian Christmas Day (7^th January) as agreed between the parties, failing agreement for the first half of the day in odd numbered years and the second half of the day in even numbered years.
g.Half of Easter day as agreed between the parties, failing agreement for the first half of the day in odd numbered years and the second half of the day in even numbered years.
h.Telephone contact daily between the hours of 5.00pm and 7.00pm.
3.That the mother is to provide the father with information regarding the child’s progress in relation to school and sport.
4.That the mother authorise the child’s school to send copies of all school reports and related school documents to the father.
5.That the mother advise the father of all school, social and sporting events and the father be permitted to attend such events.
6.That each party keep the other informed of all medical and other health related treatment being undertaken by the child.
7.That neither party denigrate the other party, or allow another person to denigrate the other party, in front of or within hearing distance of the child.
8.That each party has responsibility for the child’s day to day care, welfare and development while the child is in their care.
9.That both parties have joint responsibility for the child’s long term care, welfare and development.
10.That for the purpose of contact changeover, the father will pick up the child from the mother’s residence at the commencement of contact and the father will return the child to the mother’s residence at the conclusion of contact.
At the conclusion of the hearing the father sought the following orders contained in Exhibit F5:
1.All previous parenting orders are discharged.
2.Deleted.
3.[The child] shall spend time with his mother:
3.1Deleted.
3.2Deleted.
3.3From 6pm on 6 January until 12 noon on 7 January in odd numbered years and from 12 noon on 7 January until 10am on 8 January in even numbered years if he is not with his mother at those times by the operation of these orders.
3.4If he is not otherwise with his mother by operation of these orders from 6pm on Russian Orthodox Easter Saturday until 12 noon on Russian Orthodox Easter Sunday in odd numbered years and from 12 noon on Russian Orthodox Easter Sunday until 10am on Russian Orthodox Easter Monday in even numbered years.
3.5If he is not otherwise with his mother by operation of these orders from the time that school closes or would finish on the afternoon of [the mother’s birthday in] October until the time school does or would commence on [the day following].
3.6If he is not otherwise in the care of his mother by operation of these orders, from 9am until 5pm every Mother’s Day.
4.Notwithstanding any other order [the child] shall spend time with his father from 6pm on Russian Orthodox Easter Saturday until 12 noon on Easter Sunday in even numbered years and from 12 noon on Russian Orthodox Easter Sunday until 10am on Easter Monday in odd numbered years:
4.1From 6pm on 6 January until 12 noon on 7 January in even numbered years and from 12 noon on 7 January until 10am on 8 January in odd numbered years; and
4.2If he is not otherwise in his father’s care by operation of these orders from 9am on Father’s Day so that any time [the child] is with his mother stops at 9am on Father’s Day.
4.3If he is not otherwise in his father’s care by operation of these orders from the time school finishes or would have finished on [the father’s birthday in] May until the commencement of school or the time when school would have commenced on [the day following].
5.Notwithstanding any other order [the child] shall spend time with his mother from the end of school or the time when school would have ended on [the child’s birthday in] November until the commencement of school or the time when school would have commenced on [the day following] in odd numbered years and he must spend that time with his father in even numbered years.
6.At all other times not specified in these orders [the child] shall live with his father.
7.It is the mother’s responsibility to collect [the child] from school and return him to school on those times [the child’s] time with her commences or terminates with reference to school times.
In a Response filed on 8 June 2006 the mother sought the following orders:
1.That the respondent have sole responsibility for making decisions about the long term care, welfare and development of the child.
2.That the child reside with the respondent.
3.That the respondent have the sole responsibility for making decisions about the day to day care, welfare and development of the child.
At the conclusion of the hearing the mother sought the following orders which are contained in Exhibit M5:
1.That the child [S] born […]/11/00 live with the mother.
2.That the child spend time with the father:
(a)every Saturday from 1-6pm for six months, supervised by [Mr and Mrs K];
(b)then every Saturday from 1-6pm unsupervised for a further three months.
(c)then every Saturday from 9-6pm unsupervised for a further three months;
(d)then alternate weekends from 9am Saturday to 6pm Sunday unsupervised;
(e)half school holidays from Easter holidays 2008 (alternate weekend time to be suspended during school holidays).
3.That the mother will do all acts and things to have herself, [the child] and (if he agrees) the father forthwith consult with, and following all reasonable treatment and directions of, Dr [A].
The child was represented by an Independent Children’s Lawyer, who at the conclusion of the hearing sought the following orders:
1.        That all previous parenting orders be discharged.
2.That the child [S] born […] November 2000 live with the father and the father have sole parental responsibility for [the child].
3.That [the child] spend time with the mother as follows:
a)From the date of these Orders for a period of six months
iBy telephone on Monday, Wednesday, Friday and Sunday of each week at 7pm for up to ten minutes;
iiNot before two weeks from the date of these orders and as soon as Central West Contact Service can provide supervision for not more than one hour every Saturday unless otherwise recommended by [the child’s] treating therapist.
b)Then until [the child’s] 8^th birthday
iBy telephone two times per week as agreed between the father and mother but failing agreement on Thursday and Sunday of each week at 7pm.
iiEvery second Saturday for two hours supervised by Central West Contact Service unless otherwise recommended by [S’s] treating therapist.
c)From [the child’s 8^th birthday] until [the child’s] 9^th birthday
iBy telephone two times per week as agreed between the father and mother but failing agreement on Thursday and Sunday of each week at 7pm.
iiHalf a day per week unsupervised as agreed between the father and mother but failing agreement each Saturday from 10am to 2pm.
d)From [the child’s 9^th birthday] until [the child’s] 10^th birthday
iBy telephone two times per week as agreed between the father and mother but failing agreement on Thursday and Sunday of each week at 7pm.
ii         Every Saturday from 9am to 5pm.
e)From [the child’s 10^th birthday,] November 2010
iBy telephone two times per week as agreed between the father and mother but failing agreement on Thursday and Sunday of each week at 7pm.
iiDuring school term every second weekend from Friday at the end of school until Sunday at 5pm.
iiiFor the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years.
ivFrom 4pm Christmas Day until 4pm Boxing Day in odd numbered years provided [the child] return to live with the father from 4pm Christmas Day until 4pm Boxing Day in even numbered years.
vFor six hours on Russian Christmas Day as agreed between the father and mother and failing agreement from 1pm until 7pm provided if [the child] is spending time with the mother on Russian Christmas Day he return to live with the father from 1pm to 7pm.
4.That the mother and father:
a)Contact Central West Contact Service within seven (7) days to arrange an appointment for assessment for suitability for supervision by the Contact Service and attend the assessment.
b)Comply with any appointments made by the Contact Service for supervision of time [the child] spends with the mother.
c)Comply with all reasonable rules of the Contact Service and all reasonable requests or directions of the staff of the Contact Service.
5.That for the purpose of [the child] spending time with the mother supervised by Central West Contact Service, the father deliver [the child] to and collect [the child] from Central West Contact Service at the times appointed by them.
6.That the father and mother share the cost of the supervision by Central West Contact Service.
7.That for the purpose of all other time [the child] spends with the mother, the mother or her nominee collect [the child] from his school at the commencement of all time that begins at the end of a school day or otherwise from the father or his nominee at the father’s home and the father or his nominee collect [the child] from the mother or her nominee at the mother’s home at the end of the time.
8.That the father facilitate [the child] spending time with [D Meier] as arranged between the father and [D] for not more than four hours per week until [S] is eight years old provided [D] does not allow the mother to attend with him during times he spends with [the child].
9.That after [the child] is eight years old the father facilitate [the child] spending time with [D Meier] as agreed between them.
10.That the appointment for an Independent Children’s Lawyer continue for a further twelve months from the date of this order.
11.That the father ensure that [the child] attend a child and family psychiatrist or psychologist (“[S’s] treating therapist”) as recommended by Dr [P] and facilitated by the Independent Children’s Lawyer for such period as recommended by such child and family psychiatrist or psychologist.
12.That the father pay the cost of [the child] attending on a child and family psychiatrist or psychologist.
13.That the Independent Children’s Lawyer have leave to forward to any such child and family psychiatrist or psychologist a copy of Dr [P’s] report dated 21 December 2006, a copy of the Magellan Report dated 19 December 2006 and a copy of the judgment of the court in these proceedings.
14.That within 12 months of [the child] commencing to live with the father, the father complete a ‘Triple P’ Parenting Course or Centacare ‘Hey Dad’ Parenting Course or similar parenting course.
15.That the father and mother refrained from making derogatory comments about the other parent in the presence or hearing of [the child] and that the father and mother do all things necessary to ensure that no third party makes derogatory comments about the other parent in the presence or hearing of [the child].
16.That the father send to the mother within 14 days of receiving them, copies of all school reports and merit cards and any written reports about [the child’s] academic and extra-curricular activities.
17.That the father send to the mother within 7 days of receiving it copies of all order forms for school photographs.

The Relevant Legal Principles:

Section 60B of the Family Law Act sets out the object of Part VII and the principles which underlie that Part. That section states:
s.60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) This sub-section is not relevant to these proceedings.
Section 60CA of the Family Law Act states that in determining matters in which parenting orders are sought the Court must regard the best interests of the child as the paramount consideration. Section 60CC(1) states that in the course of deciding what is in the child’s best interests the Court must consider the matters set out in s.60CC(2) and s.60CC(3).
The sections just referred to, ie. s.60B, s.60CA and s.60CC(1), (2) and (3) were inserted into the Family Law Act as part of significant changes that came into effect on 1 July 2006 pursuant to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Before the amendments there were sections with a similar purpose and, with some exceptions, not a vastly different form: the “old” sections were s.60B, s.65E and s.68F(2). Those three sections, and the interplay between them required for the determination of parenting matters, were the subject of analysis by the Full Court of the Family Court in B & B, Family Law Reform Act 1995 (1997) 21 Fam LR 676 in the following manner:
9.51   In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Par VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52 The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
9.53   The wording of s 68f(2) makes that clear – the Court “must consider” the various matters set out in (a)-(1) of that sub-section. That sub-section sets out a list of matters which the court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
9.55   Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case.
9.56   The court now, as previously, is required to determine what is in the best interests of the particular children (s.65E). It will direct attention to both o the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
9.57 This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act: see for example the decision of the High Court in Mallett v Mallett (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91-507 and ZP v PS (1994) 181 CLR 639; 122 ALR; 17 Fam LR 600; FLC 92-480. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
9.58 As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s.65E as the paramount consideration, and then identify and go through each of the paragraphs in s.68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s.60B which appear relevant or which may guide that exercise. The trial judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.
9.59 In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz (1996) 134 DLR (4^th) 321 is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in In the Marriage of Brown and Pedersen (1991) 15 Fam LR 173; (1992) FLC 92-271.
9.60 In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where, the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.
Although the sections referred to in B & B supra have been the subject of amendment by the 1 July 2006 legislation, and the new legislation contains additional sections which must be taken into account when a court is determining matters in which parenting orders are sought, and the new legislation categorises as “primary considerations” or “additional considerations” the matters to be taken into account when determining what is in a child’s best interests, in my view B & B supra remains relevant in relation to the guidance it gives, stated so succinctly in paragraph 9.58 of the above citation.
Another aspect of the recent amendments which is relevant to this matter is the rebuttable presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility, see s.61DA, and in the event that an equal shared parental responsibility order is to be made then consideration must be given firstly to whether or not the child should spend equal time with each parent and if that order is not to be made then consideration must be given to the child spending substantial and significant time with each parent. However, the legislation makes it clear that in considering whether a child should spend equal or substantial and significant time with each parent, the Court must not make such an order unless it would be in the child’s best interests to do so and that such an arrangement is reasonably practicable.
Although s.68F(2) of the Act, and it’s various sub-sections, have been repealed, new sections have set out the matters to be considered in determining what is in a child’s best interests. S.60CC(2) sets out the primary considerations and s.60CC(3) deals with additional considerations. The additional considerations, whilst not reproducing precisely, are in general terms not dissimilar to the sub-sections contained in the now repealed s.68F(2). I reproduce the new s.60CC(2) and s.60CC(3) below:
Primary considerations
S.60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
S.60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of    the child);
(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;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m)   any other fact or circumstance that the court thinks is relevant.
The legal principles relevant to the allegations of sexual abuse are dealt with in the context of the discussion of that issue.

The Relevant Background:

Any factual matters in dispute will be addressed in the course of the judgment, but the essential background of the case is as follows:
(i)The father was born in 1955 and he is now 51 years of age. The father and his family migrated to Australia in 1958. In 1980/81 F, the father’s child of his first marriage, was born. In 1985/86 the father separated from his first wife, and the mother in these proceedings says that F’s mother has accused the father of sexually inappropriate conduct towards that child. In April 1997 K, the father’s child of his second marriage, was born and she is now 10 years of age. In August 1999 A, the father’s second child of his second marriage, was born and she is now 7 years of age. The father’s second marriage ended in separation in 1999.
(ii)The mother was born in 1962 and she is now 44 years of age. In 1982 the mother married her first husband and in 1983 the child D was born to that marriage, and he is now 23 years of age. In 1986 the mother separated from her first husband. In 1993 the mother married her second husband Mr Meier and in 1994 the mother, her second husband and D migrated to Australia. In 1997 the mother separated from Mr Meier.
(iii)The parents in these proceedings met in 2000 at which time the father’s second wife, whose full name is not known to the Court, made allegations that the father had sexually abused K. In November 2000 S, the child the subject of these proceedings, was born and he is now 6 years of age. On 19 August 2003 the parents commenced living together in the father’s home at G.
(iv)In late November 2005 the mother reported to the Department of Community Services (“DOCS”) her concerns, which she says commenced in 2004, about the father’s sexually inappropriate conduct towards S. A few days thereafter the mother left the father and she and the child moved from G to another suburb to live with the maternal grandmother.
(v)The child saw the father briefly on 6 January 2006. The father did not see the child again until interim orders were made, on his application, by the Federal Magistrates Court on 5 May 2006 which provided for the father to have supervised contact at the Central West Contact Service each Saturday from 1pm to 5pm.
(vi)In February 2006 S commenced kindergarten at C Public School and commenced to see the school counsellor there.
(vii)On 9 June 2006 further interim orders were made in the Federal Magistrates Court that the contact ordered on 5 May 2006 be supervised by the mother’s eldest child, D.
(viii)In September 2006 the mother, S and D moved to E.
(ix)On 13 September 2006 the father filed a further interim application to vary the supervisors of the time he was spending with S, and on 9 November 2006 orders were made by this Court for the father to spend time with the child each Saturday between the hours of 1pm and 6pm, that time to be supervised by Mr K and/or Mrs K at the Ks’ home.
(x)On 2 January 2007 the final hearing commenced and it concluded on 5 January 2007.

The Matters in Issue Between the Parties:

The father contends that the orders sought by him are in S’s best interests because:
(i)The mother's suspicious nature and her fixed but delusional idea that the father has sexually abused the child has not only interfered with the normal development of the father/child relationship since separation, but has also psychologically damaged the child.
(ii)By virtue of the matters referred to in (i) above, the mother has been emotionally abusive of the child and the child should be protected from that abuse in the future.
(iii)If the child remains living with the mother, he will have no relationship with the father in the future, which is not in the child's best interests.
(iv)If the child lives with the father, he will be provided with the opportunity to have a relationship with each of his parents.
The mother contends that the orders sought by her are in S’s best interest, because:
(i)The father has sexually abused the child and the child needs to be protected from further sexual abuse.
(ii)In the event that the Court finds the child does not need protection from abuse by the father, the father's proposal for residence is, in any event, a “half-baked” proposal which not only envisages the removal of the child from his primary carer and closest emotional attachment, but in circumstances where the father is in full time employment and lives alone, he is, accordingly, unable to provide for appropriate care and supervision of the child, and the father's proposal includes no firm arrangements for the child’s schooling and supervision outside school hours.

Discussion of the Evidence on the Matters in Issue.

Firstly, it is important, in my view, to discuss the lay witnesses and the nature of their evidence. Each of the parents gave their evidence in a very different way. The father was, to use Dr P’s expression, “laid back”, and, on the face of it, none of the events leading up to these proceedings appeared to have had much impact upon him. By that I mean that he did not appear to react emotionally whilst discussing past events, such as whilst asserting that he had, on two previous occasions, been falsely accused of sexually assaulting children. He was able to describe, in a matter of fact way, S’s negative words and actions towards him during recent times they had spent together, which one would have thought would have been upsetting to any parent.
On a number of occasions, when asked about the child's behaviour such as bedwetting, complaining about a sore bottom and other such matters during the parents’ cohabitation, the father acknowledged the behaviour but said repeatedly he either: "didn't worry about it", or, "didn't think anything of it", or words to that effect. He made it clear that in his view the mother overreacted to a number of aspects of the child's behaviour when the family was living together and whilst the father’s response to those events might not be seen as very unusual, overall it must be said that the father has under-reacted to a number of quite dramatic events in his life. By that I mean that his emotional response appeared to be disproportionately “laid back” to a number of events, including the various allegations of child sexual abuse made against him, the discovery of the fact that his two daughters had been fathered by two other men, and the fact that he had effectively spent no time with his son between November 2005 and June 2006.

However, having said that, I have not formed the view that the father's under reaction or “laid back” approach to these matters reflects any effort on his part to hide anything, and I did not interpret his evidence as the evidence of an evasive and unreliable witness. He provided his evidence in a manner which corresponded with the father's personality as described by Dr P, and I am satisfied that the father has done his best to provide to the Court a truthful account of the matters in issue. Overall I found him to be a credible witness.
The mother has a very different personality. She was a very emotional witness and at times quite dramatic, and displayed in Court the personality described by Dr P in his report as follows: If she was questioned, or thought she was being disbelieved, she increased the intensity with which her picture was painted. I formed the impression that at times the mother was almost pleading with the Court to see things from her perspective, and to understand the risk to the child at the hands of the father.
Although the delivery of her oral evidence contrasted remarkably with that of the father, I formed the view that the mother, too, was doing her best to assist the Court with a truthful version of events as she saw them. I found the mother, too, to be a truthful witness, although not necessarily a reliable witness, given the observations and findings I have made at paragraphs 63 to 75 following, and given the observations made by Dr P about the mother's delusional or over-valued ideas.
Mr and Mrs K gave evidence in the father's case. They are longstanding family friends who have assisted the father by providing supervision of the time he has spent with the child since about October 2006. One or other has been present on all occasions when the child has spent time with his father in that period. Between them they have provided a description of events that occurred each week, and I found them to be entirely truthful and reliable. Neither of them made any effort to gloss over those aspects of the child’s behaviour which could clearly be interpreted as a rejection of, and a displeasure at being with, the father.
Each of them has been of great assistance to the Court in providing descriptions of the other aspect of the child’s relationship with the father, that is, that after an initial period of coldness towards the father, the child engaged his father in his activities, which included the child initiating physical contact with the father. That would appear to be inconsistent with any fear of the father on the child's part.
I found each of the Ks to be completely objective and their evidence was invaluable as evidence of the positive aspects of the child's current relationship with his father in recent times.
The paternal grandmother, Mrs Yeddich, gave evidence in support of the father. The significance of her evidence was really in relation to the father's future proposal. She was supportive of the father, but honest enough to say to the Court that she thought it was better for the child to be with the mother because she is the mother.
I accept her evidence that she will make herself available to assist the father with before and/or after school care of the child if required, and in particular will make herself available on the one day each week when the father works until 8.00pm. I have no doubt that she will be available at any other time that the father so requests. She too gave her evidence honestly and openly, and I have no doubt that she is devoted to her son and to her grandson.
In the mother's case the maternal grandmother provided affidavit evidence which was not challenged. That evidence corroborates the mother's description of the child complaining of a sore bottom on occasions, being reluctant to go to spend time with the father, the child's rejection of the father on occasions when the parents were living together as an intact family, and also some corroboration of the child's behaviour which is viewed by the mother as sexualised behaviour. It is clear that the mother's opinion on this issue is shared by the maternal grandmother.
There is also unchallenged evidence before the Court by Ms Z, who is a friend of the mother. That evidence goes to the child reporting abusive behaviour by the father and demonstrating what is seen by the deponent as “abnormal” sexualised behaviour.
Also called in the mother's case was D, her son from her first marriage. This young man, now aged 23, was included in Dr P’s assessment of the family. I found D, too, to be a witness who did his best to assist the Court with a truthful account of those matters of which he was aware. He corroborates the mother's version of the child’s repeated reluctance to spend time with the father, and as D was the supervisor of that time between June and October 2006, provides a description of a child who was not only reluctant to go and spend time with the father, but also reluctant to engage with the father during those periods, preferring to focus his attention on D himself.
D, like the mother, expresses the view that aspects of the child's behaviour when he and D were “roughhousing”, or tumbling around on the floor, were sexualised. I have no doubt that D’s opinion of the child's behaviour and view of the father is very strongly influenced, if not dictated, by the intensely strong views on this issue which are held by the mother. That is not to say that D has not genuinely adopted those views of his own, and was, as I have said, a young man doing his best to report truthfully to the Court.

The Mother’s Allegations of Sexual Abuse by the Father.

The mother alleges that while she and S were living with the father at the G home, the father sexually abused the child. In a Notice of Abuse filed on 6 November 2006 the mother asserts that in about 2004 the father touched and/or interfered with the child's rectum, in 2004 touched and/or interfered with the child's penis, in 2005 kissed the child inappropriately and/or forced the child to kiss the father inappropriately, and in 2005 licked the child's ear inappropriately.
The Notice of Abuse also claims the father abused his son F and his daughter K, being the father’s children from two earlier relationships.
During her oral evidence the mother was given an opportunity by counsel for the Independent Children’s Lawyer to reflect upon whether it may be the case that in fact nothing inappropriate had occurred between the father and the child; the mother responded that she was absolutely sure that it had happened, and that she believes it to this day. The mother says that the new proposal put forward on her behalf during the course of the hearing, a proposal which includes the child eventually spending unsupervised time with the father, is an arrangement which the mother proposes only on the advice of her lawyer that she might otherwise lose her son.
There is no doubt in my mind that the mother genuinely believes that the father has sexually abused the child, and believes to this day that the child is at risk of harm of continued abuse if he is to have any unsupervised time with the father.
So strong is the mother’s belief in the harm that will befall the child at the hands of the father that, at the conclusion of her counsel’s final submissions, she requested the opportunity to address me directly. It would be no exaggeration to say that she was distraught. The mother pleaded with the Court that if it was determined that the child should not remain living with her, then the Court should place him with some other unspecified couple who would look after him, rather than sending the child to live with the father.
It is important to examine how the mother formed her current views, expressed as they are with such intensity and conviction. The mother says that at the time of separation, or indeed since, she has never seen the father do anything wrong to the child. She says that her suspicions have been raised because the child has reported that the father kissed him on the lips and licked his ear. The mother says that at the time of separation it was, to quote her, "nothing bigger" than that.
The mother says that when she reported these incidents to Dr R, he told her she must report the father's conduct to DOCS. The mother separated from the father a couple of days later, taking the child with her. I note that Dr R’s report, prepared on 22 December 2005 for the mother's general practitioner, does not corroborate the mandatory nature of the advice about DOCS attributed to him by the mother, see Exhibit F2. Dr R’s report states that he believes the child’s sleep disturbance, identified by Dr R as the reason for the consultation, is behavioural and required a behavioural management program. He says that he has suggested to the mother that if her concerns about her husband's interaction with the child, which she raised with him, continued, she should notify DOCS.
Following the separation it is undisputed that the mother did not provide any opportunity for the child to see the father until June 2006, an approximately seven month period. The only exception was permitting him to visit the child with a Christmas present in early January 2006.
The mother says that her conviction that the child had been sexually abused by the father developed because there were a number of post-separation incidents, and her belief at separation that the father had done, as she said, “nothing bigger” than kissing the child on the lips and licking him on the ear soon became a conviction that sexual abuse had occurred.
The post-separation incidents include what the mother has described as sexualised behaviour by the child, a refusal to speak to the father on the telephone, and complaints of a sore bottom, the latter being interpreted by the mother as “flashbacks” to incidents of abuse that had occurred prior to separation.
The mother also says that after separation, whilst there was a decrease in the frequency of the child's nightmares, the child's behaviour was disturbed at times and included expressing a strong fear of his father, which the mother interpreted as emanating from pre-separation abuse.
The mother sought professional assistance for the child from Dr A and from two school counsellors in relation to the child’s fear of the father, and the way in which, according to the mother, that fear manifested itself in the child’s behaviour.
The mother says that based on her observation of the child and the things he was saying, including “flashbacks” which in her opinion were the cause of the child complaining of a sore bottom at a time he was not seeing his father, the mother then cast her mind back to various aspects of the father's conduct during cohabitation and to the fact that two previous partners had accused him of molesting other children. Thus, says the mother, her suspicion that the child had been sexually abused by the father has developed into a strong conviction.
On the face of it, that might appear to be a reasonable process by which strong views of abuse develop. However, in this case, it needs closer examination.
Looking at the two incidents of alleged abuse the mother refers to as the two incidents which precipitated separation, why would the mother have so readily attributed the child kissing her on the lips in November 2005 to misconduct by the father? There is evidence that on an earlier occasion, in mid-2005, the child had kissed the mother on the lips, which had triggered a reaction of disapproval from the mother. On the earlier occasion the child explained to the mother that he had been kissed like that at preschool by a child whose father had kissed her that way. The mother had been so concerned about this that she had reported the incident to DOCS who had interviewed preschool staff. The child was later withdrawn from that preschool by the mother.
Significantly, in my view, that earlier incident was omitted from the mother's affidavit and was raised only by the father in his material. The mother’s first reference to such an incident was to the child kissing her on the lips in November 2005. She says that she asked the child where he had learned to do that, and the child told her that his father did it to him in the park near the trees. There is nothing in that version by the mother about an earlier preschool incident, and indeed she was unable to answer a question by counsel for the Independent Children’s Lawyer as to why she would ask the child in November 2005 where he had learned to kiss on the lips, when she was aware that he had been kissed like that at preschool in mid 2005.
The mother’s original version also omits to include what she had told Dr A in relation to the November 2005 kiss: that there had been a seven or eight year old girl visiting the home at the time that the child said to the mother “Mum, you are my princess, marry me”, and kissed her on the lips. The mother told Dr A she said playfully “Oh [S], you can't do that” and he then said that his father kissed him like that in the park.
The mother's original version also omits a significant matter which emerged during the giving of her oral evidence: that although the child had originally told the mother that the father kissed him like that, he later retracted that statement. The Court would never have known about that retraction from the mother's own evidence in chief. The clue about a retraction lies in that part of Dr P’s report which notes that, during the mother's discussion of the kissing incident with Dr P, the child interrupted and told Dr P that he had told his mother that his father didn't do it, but that his mother told him that the father did. Although the latter part of the sentence comprising the child's contribution to the conversation between Dr P and the mother is denied by the mother, I accept that Dr P has accurately recorded what the child said at that time.
In relation to the licking of the ear, the father provides an explanation as to his and the child’s activities at the relevant time and I have no difficulty understanding how the child’s ear had accidentally come in contact with the father's mouth. The father does not deny that it did. It appears that at the time the child's reaction of “yuk” was heard by the mother in the next room and the father says that the mother reprimanded him in a way that suggested she thought he had done something improper.
It seems to me highly unlikely that the father would have deliberately licked the child in an inappropriate way when the mother was in the next room and likely to become aware of any reaction by the child and to be told by the child what had occurred. However it seems that the mother did not apply any more logical analysis to that incident than she had done to the kiss on the lips. On the mother’s own evidence, it was those two incidents which triggered the separation so that the child could be removed from the father.
The mother and child then moved to live with the maternal grandmother. The mother says that after separation the child refused to talk to his father on the phone. If that is the case, then I am of the view that it is more likely to be a reflection of the mother's opinion of the father than the child's, bearing in mind that the mother's suspicions about the father's inappropriate conduct were such that they had caused her to separate from him, and in circumstances where there is no evidence that up to the time of separation the child avoided the father. It is not difficult to conclude that it is likely that the mother's opinion of the father was passed on to the child, either deliberately or otherwise.
According to the mother, in no time at all after separation the child was expressing fear of his father, and in circumstances where there is no evidence that up to the time of separation the child was afraid of the father, again I have no difficulty in finding that that is more likely to have been as a result of the mother's negative view of the father passed on deliberately or otherwise to the child.
If, as the mother and D and the maternal grandmother say, the child was exhibiting unusual and disturbed behaviour after separation when he was not seeing the father, which was interpreted by the maternal family as sexualised behaviour as a result of sexual abuse by the father, in my view one cannot reject an alternate explanation for unusual and disturbed behaviour posited by the Independent Children’s Lawyer: that the child had suddenly been deprived by the separation of the company and love and support of both parents.
Although it is a contention that the mother to this day denies, I am satisfied that it is more likely that the mother's distress at the prospect of the child spending any time with the father rubbed off on the child, rather than that the child's distress at the prospect of seeing his father rubbed off on the mother, as she contends.
Further, I am satisfied that that dynamic began at separation and has continued to the present time. More will be said about that later in the judgment.
Those aspects of the father's conduct during cohabitation which the mother retrospectively identifies as suspicious or secretive are outlined in her affidavit material. The mother says that the father was secretive about work he did on the computer, and that he waited until she was asleep before he printed material. The clear inference she wishes to convey is that he was accessing and printing inappropriate material.
The mother says that the father’s position on the bed when he read bedtime stories to the child suggested something sexually inappropriate. The mother implies that the father’s failure to include her on social occasions at his work was somehow suspicious behaviour, and that the content of the paternal grandmother's telephone messages confirmed inappropriate behaviour by the father.
The mother implies something secretive and sinister about the fact that the father had a bag he took to work, and to which she claimed she was denied access, and that she was denied access to his car, again implying that the bag and the car contained something incriminating.
The mother says that the father had articles like cameras and binoculars in the boot of the car, which she did not ever see him use, implying that his use of them was clandestine and sinister.
The mother says that the father had telephone conversations which he took steps to ensure the mother did not overhear, and that he had children's toys in his possession. The mother describes his conduct at bath time with the child in a way that implies impropriety, as does her description of the father tiptoeing away from the child's bedroom.
None of this evidence in any way specifically connects the father to any sinister or sexually predatory behaviour, but it is, in my view, the clear intention of the mother to paint a picture of a secretive and predatory abuser of children, and a man who generally had a secret life that he hid from his family.
Whilst these matters, singularly or cumulatively, fall short of establishing that any conduct on the father's part would be of concern to the Court in the context of the allegations made, of significance is the manner in which the innuendo by the mother, in the absence of anything more concrete, corresponds with Dr P’s description of the thought processes of a person with a delusion or overvalued idea which is the focus of much of Dr P’s evidence, both in his report and in his oral evidence.
Further doubt must be thrown on the legitimacy of the mother's concern when one looks at the inconsistency in important parts of her evidence, including the manner in which her version of particular incidents has been embellished as time passes.
Examples of this are the way in which the mother, in her later affidavit of November 2006, embellishes the version given about the father's computer use contained in her affidavit of June 2006. Similarly, the mother's version of the father's position on the bed at bedtime in her November 2006 affidavit is an embellished version of her evidence about that in her June 2006 affidavit.

The mother gives oral evidence of a conversation she had with the child in bed. She says that the child touched his anus and said, "I play like that". The mother said, "Who plays like that?" and he said, "Daddy". That is an incident that has not been mentioned in any of the mother’s affidavit material.
In evidence to which I have already referred, the mother's description to Dr A of the circumstances surrounding the child's kiss, suggesting that it may have been part of a game being played by two children, were circumstances which were not included in the mother's evidence until conceded in cross-examination.
The mother apparently told Dr A about the child bouncing up and down on D, pursing his lips and saying, "I want to suck you", or words to that effect. If the child did say that, one must query why the mother omitted to include that incident in either affidavit, both of which are sworn long after she saw Dr A.
In evidence to which I have already referred, the mother has, in my view, embellished the words of advice given to her by Dr R.
Given the contents of the Magellan Report, it also appears that the mother has reported to DOCS that the child reported that he had been kissed on the penis by the father. Whilst the mother denies she reported that to DOCS, she agrees that the other statements attributed to her by DOCS in the Magellan Report are accurate. Given the mother's propensity for embellishment and selectivity in order to get people to believe her contention that the father has sexually abused the child, I am satisfied that it is likely that the mother did tell DOCS that the child reported he had been kissed on the penis by the father. Yet that allegation is not included in the mother’s affidavit material, or in her oral evidence. I note reference to interference with the child's penis is included in the mother’s Notice of Abuse filed on 6 November 2006.
Further, there is a lack of logic in many of the mother's assertions when they are looked at objectively. She gives evidence of occasions, including one at a shopping centre, when the child complained of a sore bottom. She says nothing was occurring on that occasion that would cause the child’s bottom to be sore, and a physical examination revealed nothing. Accordingly, the mother asserts that it must be explicable as the child having a “flashback”, remembering something the father had done in the past that caused a sore bottom which in turn caused the child to have a sore bottom at a time when the child was not with the father.
The mother also asserts that when the parents were living together and the child was playing on a trampoline, the child's complaint of a sore bottom at that time was also a “flashback” to something the father had done to him at a previous time. And yet on that occasion both parents took the child to a hospital where a history was provided that the child had fallen on the trampoline. Despite acknowledging the history given, the mother insists to the Court that the child did not fall and did nothing whereby he could have physically hurt himself in a way that caused a sore bottom, and it is on that basis she now says that the sore bottom at the time of the trampoline incident was caused by a “flashback”.
The same lack of logic is in play in relation to the child's sore penis. All the mother tells us in her affidavit is that the child complained of a sore penis and the parents took him to see a doctor. She omits to include, although does not deny as accurate, the father's version that what in fact occurred was that the child was examined by two different doctors, and the advice was that there was an infection of the penis for which antibiotics were prescribed, and that they should consider circumcision, which would make it easier for the penis to be kept clean.
In evidence to which I have already referred, the mother’s lack of logic was demonstrated when she asked the child where he learned to kiss on the lips when she was fully aware of an incident a few months earlier at the preschool, an incident so significant for the mother that she had reported the preschool kiss to DOCS.
As suggested by counsel for the Independent Children’s Lawyer in cross examination of the mother, there was also a lack of realistic analysis by the mother of why a sleeping child might protest about being changed from his clothes into his pyjamas; the mother contemplated no explanation for that which was other than a sinister explanation.
Even if one takes into account the fact that the father has been accused by two former partners of sexual abuse of a child (although the mother was aware of and presumably rejected those allegations before commencing a relationship with the father and then moving to live with him after S was born), Dr P’s analysis of the mother's thought processes explains to a very large degree the lack of logic, lack of realistic analysis and lack of preparedness to look at alternate innocent explanations, her highly selective inclusion of evidence which supports her contention and exclusion of evidence which does not, and reliance on innuendo which flavours all of the mother's evidence to which I have just referred.
Dr P provides to the Court a considerable amount of evidence about what he has identified as the mother's delusional or overvalued idea in relation to the sexual abuse of the child. That evidence is:
(a)In his report at page 6 Dr P says the suspicious events reported by the mother “were reported each time [the mother] was seen, with more detail and an increasingly dramatic manner, as if telling an exciting story”.
(b)In his report at page 6 Dr P says:
“When asked if she was intending to paint the picture of [the father] as an abuser she replied “I’m not a psychiatrist. I don’t know”.
(c)In his report at page 6 Dr P says:
“She painted the picture on the background of a moody violent man who has been angry at her getting help for [the child] over the initial kissing and sore bottom incident and who has been violent to her physically and verbally. She describes him having a secretive life, hiding the use of binoculars, a camera and a computer.
If she was questioned or thought she was disbelieved she increased the intensity with which the picture was painted. When I attempted to explore with her that I did not observe [the child] to be frightened of [the father] she put this down to the lack of an interpreter which prevented [the child] from telling me how frightened he is. When clarifying the need to see [the father] and [the child] with an interpreter present she stated, “Yes with an interpreter. You said you didn’t see him scared of daddy. [The child] screaming and running from daddy because he wanted to kiss him. [The child] say ‘no don’t do that, don’t do that’.”
(d)In his report at page 13 Dr P says:
“She expressed no awareness of her need to have the listener see only her picture and no awareness of her self-absorbed interpretation of what she experienced.”
(e)In his report at page 19 Dr P says in his summary and conclusions:
“[The mother] paints a picture in which [the father] is said to have abused [the child]. She sees the abuse in most, if not all, of [the child’s] and [the father’s] behaviour. She sees [the child] as frightened of [the father] and this is offered as confirmation of the abuse.
When the picture of abuse is questioned, even just for a clearer picture, she becomes more intense and more firmly paints the picture of abuse.”
(f)In his report at page 19 Dr P says:
“[The mother] presents in a self-absorbed manner with a preoccupation or over-valued idea with regard to the stated abuse of [the child] by [the father].
Within the over-valued idea, like a delusion, she is unable, and she is unable to let anyone else, question the existence of the idea of abuse.”
(g)In his report at page 23 Dr P says:
“[The mother] paints a picture from her perspective of a belief in sexual abuse of [the child] by [the father].
[The mother’s] preoccupation with abuse can be understood as an over-valued idea. It is toxic to [the child’s] development and to his relationship with [the father].”
(h)In his oral evidence Dr P confirms that he is concerned about the mother, and confirms that in his opinion she has a delusion like overvalued idea, in relation to the sexual abuse of the child. He says that on this issue she only sees it one way, she takes the simplest and most innocent things and sees them as a confirmation of what she thinks.
(i)In his oral evidence Dr P describes as typical of an overvalued idea a description of conduct which is repeated again and again. He says that, for example, it’s not unusual for a child to grab a parent hard around the neck and kiss them hard. If it is to be seen in a context of sexual abuse it needs to be much more.
(j)In his oral evidence Dr P adopts the proposition that the mother did not say she saw anything so she has not fabricated incidents. He says that in fact she has done the contrary, that she has not consciously and deliberately gone about setting the father up; the mother believes it. Dr P says that typical of an overvalued idea is to have the listener think something sinister is happening. It is usually left for the listener to imply something sinister. They (persons with overvalued ideas) don’t come out with an accusation; the listener is given all the clues to come to their own conclusion but is left with the impression that what she is talking about is an abusive man. As to whether or not someone who wanted you to believe something would be more detailed, Dr P says that is what a rational person would do, a person with a delusion like overvalued idea would not.
I accept Dr P’s evidence. I accept his conclusion about the mother's delusion like overvalued idea, and I accept Dr P’s evidence that the delusion like overvalued idea held by the mother is in relation to the sexual abuse of the child by the father.
Taking into account Dr P’s evidence, I am also satisfied that, despite the inconsistencies in the mother's version of events, the embellishments, the lack of logic and the lack of explanation for the lack of logic, I am satisfied that the mother has not deliberately and malevolently “set the father up”, but is pursuing an overvalued idea that is like a delusion but is genuinely held. But the mother's evidence, when put into perspective by Dr P, falls short of establishing there has been any sexually inappropriate conduct at all by the father towards the child.
In addition thereto, it is important to note that the father himself has provided denials of or explanations for the various incidents referred to by the mother. He explains the preschool kissing incident, events surrounding his use of the computer and his evidence that he did not exclude the mother from those activities. He explains his use of his work bag, his use of binoculars and camera, and the mother's access to the car and to his computer.
He also explains the phone calls to his home, the possession of toys, the incident he describes as the child's accident on the trampoline, and the circumstances surrounding the child's infected penis, and the medical recommendations in relation to circumcision.
Each of these issues is explained in a quite logical and commonsense way that denies any element of secrecy. He refers to the mother mentioning to him her concerns about the child's sore bottom and the lack of importance he placed upon what he saw as a nappy rash. He similarly acknowledges, but dismisses the significance, frequency or indeed importance of the child's sleep disturbances.
He explains the manner in which he supervised the child's bath time, and explains the child running away from him as being part of the game. He explains, as I have said earlier, the incident whereby his mouth came in contact with the child's ear.
He acknowledges occasions of bed-wetting at the G home, but, like the nightmares, he challenges the mother's version in relation to frequency and he attributes any disturbance in the child's behaviour to the mother's harsh discipline of the child and a tendency to yell loudly at the child.
The father acknowledges that he lay on the bed and read to the child. He does not deny that he took the child frequently to the local Park but denies that he kissed the child on the lips at that park. What the mother describes as the father tiptoeing from the child's bedroom, implying that it was done to avoid her notice, is explained by the father as walking quietly from the child's room so as not to disturb the child. He acknowledges fingernail biting by the child, but certainly challenges the mother's version of the frequency and severity of that particular habit.
He meets a complaint by the child that the father made his hand red by explaining an incident which involved disobedience by the child.
The father says that there were times when the child wanted the mother, rather than he, to do things for the child, but equally there were occasions when the child preferred to be assisted by the father than the mother. He says that he minded the child on a regular and continuous basis while the mother went to TAFE, and he cannot recollect the child being unwilling to remain with him. And he certainly has no recollection of those circumstances which the mother claims caused her to terminate her TAFE course.
I accept the father's evidence in relation to those matters. I accept the father's evidence that the sinister implications placed upon many of those matters by the mother have only come to his attention since these proceeding commenced and the allegations of sexual abuse have been made, but I also accept his evidence that during the course of the relationship the mother was suspicious of some of the father's activities, and raised those suspicions with him. For example, it appears that the mother raised with him her concern about his secretive use of the computer, and raised with him her concern about him licking the child's ear, and there may also have been other matters raised.
In his report, Dr P notes the father's explanation of the ordinariness of all the events, including the advice about circumcision. And I do agree with Dr P that there is nothing extraordinary about many aspects of the father's conduct reported upon. For example, D says that he thought the father just liked to keep his possessions to himself, and it is clear that D didn't put any sinister meaning upon this at all.
One of the matters, of course, that Dr P has been asked to address specifically is the likelihood of any sexual abuse by the father of the child. Apart from the considerable volume of evidence by Dr P, to which I have already referred, about the mother's delusion like overvalued idea in relation to the sexual abuse, Dr P says:
(a) At page 20 of his report:
“While it is hard to dismiss his past history of two other mothers accusing him of sexually abusing the children in the relationship, both male and female, there is nothing in this assessment within [the father], within [the child], or within their relationship which would support or confirm any sexual abuse.
If [the child] has been abused by [the father] it would need to have been a non traumatic abuse.”
(b) At page 23 of his report:
Within this assessment there is no support for the stated abuse of [the child] by [the father].
I accept that evidence.
Dr P has also given oral evidence that there is nothing in the child's behaviour that originates from the child himself that means there should be concerns or worries about matters of a sexual nature. I accept that evidence.
Dr P’s oral evidence is that he saw nothing in the father that would suggest that he abused male or female children. I accept that evidence.
Some reference should be made to the earlier allegations against the father in relation to other children. The father himself raises these allegations in his own affidavit. I know little about those matters, other than that the father denies any earlier impropriety and attributes to the two women involved in the accusations motives whereby they would either personally benefit or obtain some sort of revenge by making the false accusations. That evidence was not challenged in cross-examination.
Further, I am aware that during the course of these proceedings the files of the Family Court proceedings involving the father’s earlier relationships had been subpoenaed and inspected, and there was no evidence placed before me on which I could conclude that there was any inappropriate conduct, or a risk of any inappropriate conduct, by the father towards any child.
I am therefore simply left with a situation whereby it is not disputed that earlier allegations were made, that one of the children the subject of those allegations, a boy, subsequently lived with the father for a period of about six years, and that the allegation in relation to the second child, a girl, arose in circumstances deposed to by the father, which, being unchallenged, I accept.
The Full Court in WK & SR (1997) FLC 92-787 stated:
45. In relation to points (vi) and (ix), the High Court in M v M (1988) 12 Fam LR 606 and B v B (1988) 12 Fam LR 612 considered the circumstances in which a trial Judge should make a finding of sexual abuse when considering children’s issues under Part VII of the Family Law Act. The Court, at p. 610 held:-
“But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee [1951] AC 352 at 364-5. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the best interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at 450, 458, 462,463-4; 69 ALR 647.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s comments have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
46. It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:-
“140 (1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.”
47. In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

(g)Issues relevant to the cultural and lifestyle background etc of the child and the parents.

Both parents are of Russian origin and are Russian speaking. It appears they are both part of the Russian community in Sydney. The child speaks Russian. Both parents and their families attend the Russian Orthodox Church and celebrate the religious holidays associated with that particular faith.
Accordingly, whatever parenting orders are made at the conclusion of this hearing, the child will continue to be exposed to his Russian culture, heritage, religion and language.

(h)Issues relevant to the right of an Aboriginal or Torres Strait Islander child to enjoy his/her cultural heritage.

This sub-section is not relevant to these proceedings.

The attitude of each parent to the responsibilities of parenthood.

The mother's and father's respective attitude to the responsibility of parenthood have already been discussed, in part, in s.60CC(2)(b) and s.60CC(3)(c) and (f). Based on the findings I have already made, I am satisfied that the father has an appropriate attitude to the responsibilities of parenthood. Looked at objectively, the mother has not demonstrated a responsible attitude to parenthood as demonstrated by her attempts to sever the father/son relationship by raising allegations of sexual abuse. The mother has not been able to substantiate those allegations in this hearing.
However it is important to repeat that the mother has not deliberately fabricated evidence in order to “set up” the father; instead, she has a delusion like overvalued idea in relation to the occurrence of sexual abuse of the child by the father and simply cannot be persuaded that she is mistaken, or that she has overreacted to innocent events for which there are innocent explanations. The mother has caused psychological damage to her son by virtue of her emotional abuse of her child, and that is not consistent with responsible parenting. It must be said, however, that the mother has acted at all times in what she believes to be the best interest of her son.

(j) Family violence involving the child or child’s family members.

There are a number of issues raised by the mother, most particularly in the history provided to Dr P as opposed to any evidence in the proceedings, that the father had been verbally and physically aggressive towards her during the course of the relationship. There are few details provided by the mother of such incidents. They are broad and non-specific allegations, and were not the subject of cross-examination of the father. Accordingly, the mother has not satisfied the Court that the father acted aggressively towards the mother whilst they lived together.

(k) Any family violence order that applies to a child or family member.

Following separation the mother sought and obtained an interim AVO, which lasted for a number of months. It was apparently based on the mother's allegation of the father’s abuse of the child, although there is no evidence before the Court of the specifics of the mother's complaint. In any event, the mother's application for a permanent AVO was subsequently dismissed, and no final orders were made.

(l) Order to avoid further litigation.

I am of the view that whether the outcome of these proceedings is that the child remains living with the mother and orders are made either that he does or does not spend time with the father, or that the child lives with the father and either does or does not spend time with the mother, one outcome is no more likely than the others to put an end to further litigation between these parents about this child, a result which this Court would, of course, wish to achieve.

(m) Any other relevant factors or circumstances.

There are no issues in these proceedings which have not been covered pursuant to the various sub-sections already discussed.

s.60CC(4) Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.

As to the mother's, as the resident parent since separation, fulfilment of her responsibilities as a parent, I take into account those matters referred to, and findings made pursuant to s.60CC(2)(b) and s.60CC(3)(c), (f) and (i). In addition thereto I am satisfied that since separation the mother has made all decisions in relation to major long-term issues, such as school enrolments and attendance by the child on professionals, including a child psychiatrist, and has not facilitated the father participating in any of those major long-term decisions in relation to the child.
The mother has certainly spent time with the child since separation, but she has not facilitated the father spending time with the child, the supervised periods currently occurring only taking place after the father brought an application to the Court.
The mother opposed the supervision being changed from D to the Ks. The mother has been generally, but not completely, compliant with the orders for those supervised periods of time.
I am satisfied that the mother has not facilitated the father communicating with the child since separation in circumstances where, on the mother's own evidence, the child refused to speak to the father on the phone and she did nothing to encourage the child to change his mind.
As to the father's fulfilment of his responsibility, I take into account the matters referred to and findings made pursuant to s.60CC(2)(b) and s.60CC(3)(c), (f) and (i). In addition thereto, it must be noted that although since separation the father has been deprived of an opportunity to participate in major long-term decisions in relation to the child, he has sought, through the Court, an opportunity to remain involved in the child’s life. He has tried to communicate by telephone with the child on many occasions in the early months following separation, estimated at about 30 times, but was not able to speak to the child.
Since seeking and obtaining orders to enable the child to spend time with him, the father has been very conscientious in availing himself of that opportunity, including seeking through the Courts a change of supervisor in circumstances where he formed the view that the existing arrangement for supervision was compromising the benefit to the child of the time the father and son were able to spend together.

s.60CC(4A) Circumstances since separation.

Apart from those circumstances to which reference has already been made, there are no other circumstances since separation that would be relevant to the determination I must make.

s.61DA The presumption of equal shared parental responsibility when making parenting orders.

S.61DA(1) requires the Court to apply a presumption that it is in the best interests of a child for the child’s parent to have equal shared parental responsibility for the child. S.61DA(2) states that there is no presumption in favour of such an outcome if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. I have not found that either party has engaged in abuse (as defined in s.4 of the Act) or engaged in domestic violence.
Accordingly, this is a case where the Court must apply a presumption in favour of both the mother and the father having equal shared parental responsibility for the child.
That of course is not the end of the matter. That presumption can be rebutted by evidence that such an outcome would not be in the child’s best interests, a course urged upon me by the father and the Independent Children’s Lawyer.
I take into account the findings I have made that the mother has been emotionally abusive of the child and has caused psychological harm to her child. I also take into account the evidence of Dr P who addresses the issue specifically in his evidence. When asked about the likelihood of these parents sharing parental responsibility for major long-term decisions, and in particular the engaging of professionals to assist the child, Dr P says that, because of her view of the father, the mother is not going to want to involve him in the decision making because she believes he has sexually abused the child. That view will bias how she obtains assistance for the child and from whom: if a professional person challenges her “she is likely to pull out”. Dr P adopts the proposition that the mother is likely to discharge that responsibility in aid of her own overvalued ideas. Dr P says that if the child is to live with the father then the engaging of professionals should be left to the father because the mother would want to get professionals to treat the child as an abused child.
Dr P says that in relation to choice of schools, sports etc. for the child, if he is to live with the father it is difficult to see any role there for the mother, unless these parents acquire the capacity to consult with each other. Dr P is apprehensive about the prospect of these parents actually getting together in a way that could resolve such issues, and says that if there was a decision to be made that had an emotional content to it, it would just be asking too much that these parents could either consult or agree. If the child is living with the father Dr P says it would be wise to leave such decisions to the father.
I accept that evidence, and I am satisfied that, realistically, there is no prospect of any successful joint consultation or successful joint decision making in relation to major issues for the child. Notwithstanding that the Court has the power pursuant to s.13C to order counselling and/or to order the parties to participate in courses, programs or services that may better equip them in the future to attain the capacity to communicate with each other and resolve difficulties that might arise implementing such a program, Dr P’s evidence, which I accept, to the effect that the mother's delusion like overvalued idea about sexual abuse is not likely to be amenable to therapeutic assistance, and his evidence that in the future the mother is likely to be unable, even with professional assistance, to develop any insight into her overvalued idea and the impact that has upon her child, makes this a case whereby such an order will, in my view, achieve little.
I am satisfied that there is evidence before the Court which rebuts the presumption in favour of equal shared parental responsibility for the child, and I intend to make an order in favour of the father for sole parental responsibility for decisions relating to the major long-term issues for the child. Accordingly, the circumstances do not apply in this case which requires the Court to consider, pursuant to s.65DAA, whether the child should spend equal time, or substantial and significant time with each parent.
However, although not required to consider either of those outcomes, the Court, in my view, is well able to consider either of those arrangements if it is in the child's interests to do so and is reasonably practical, particularly when such orders are sought by a parent.
I am satisfied that it would not be in this child's best interests to spend equal time with each parent because of the very high level of conflict in which the child is involved, and the distress and anxiety and confusion already well identified by Dr P that occurs pursuant to the current parenting arrangement whereby the child must move between the two households. There is no communication at all between the parents, no mutual trust, and no demonstrated ability to reach consensus on any matter related to the child or his welfare. As will be seen from the findings I have already made, the mother's delusion like overvalued idea in relation to the father's sexual abuse of the child, an idea from which she cannot be swayed and is unlikely in the future to be swayed, is, I am satisfied, likely to preclude any successful communication between these two parents.
Further, it is not practical to put in place an arrangement where the child spends equal time with each parent in circumstances where the parents do not live within such proximity to each other that the child could attend the same school from both households without exposing the child to unacceptably onerous travel.
Consideration of whether or not the child should spend substantial and significant time with each of the parents must result in the same finding and for much the same reasons, and it should be borne in mind that those reasons include the findings I have made that one of these parents is emotionally abusing the child.
I am satisfied that it is not in the child’s best interests, nor is it reasonably practical, to consider either equal time or substantial and significant time with each parent in the circumstances of this case.

Summary and Conclusion:

In determining how much time the child is to spend with each parent, including the giving of consideration, if appropriate, to the allocation of time in accordance with options which are specifically referred to in the legislation, I must regard the child’s best interest as the paramount consideration.
Against that background, and against the background of the findings I have made pursuant to each of the sub‑sections of the legislation, I now turn to Dr P’s recommendations. Dr P has reached a number of conclusions in both his report and his oral evidence, and has made recommendations to assist the Court in arriving at a parenting arrangement that is in the child’s best interest.
At page 23 of his report, Dr P says:
“Within this assessment there is no support for the stated abuse of [the child] by [the father].
I think it is reasonable that [the child] has ordinary and unsupervised contact with [the father].”
At page 20 of his report Dr P says:
“The Court, in needing to choose [the child’s] best place of residence is in a difficult position.
If living with [the mother] it is unlikely that he will be able to have a relationship with [the father] and will not be able to have a relationship free of the imposed atmosphere of abuse. Such an imposition will render this relationship too stressful for even emotionally robust individuals to negotiate.
It is unlikely that [the mother] will be able to let go of her over-valued idea of abuse and she is unlikely to see herself as in need of therapeutic help.
If living with [the father] it is reasonable to accept that a relationship with [the mother] will be supported if [the mother] is able to tolerate the contact without undermining [the child’s] relationship with [the father]. However, [the father] has a full time job and [the paternal grandmother], who presumably would help in [the child’s] case, presents as frail and elderly with a limited capacity to cope with a depressed anxious developing young boy.
These limitations of living with [the father] are practical and are more readily dealt with than the emotional limitation of living with [the mother].
[The child] does need to live in an environment free of the current emotional conflict which is leaving him depressed and anxious and which is likely to interfere with his development. [The father’s] household, potentially, is more likely to offer this freedom.
If provided with such an environment he should be assessed in approximately six months to ascertain the need for any therapeutic help with ongoing anxiety and depression, particularly if interfering with his development.”
In his oral evidence Dr P specifically confirms that his recommendation in his report was, and remains, that there be a change of residence from the mother to the father. Dr P further expands and clarifies his written recommendation, pointing out the long and short term difficulties the child faces if he continues to live with his mother. He says that if the child continues to live with his mother and spends time with his father, we will see an escalation of what we have now: the child talks about his father taking him away, and we will see the child’s anxiety building, he’ll be more anxious, there’ll be more disturbance, he’ll have more difficulty making sense of a “bad father” and a “good father”, see paragraph 129 above. Dr P says that, sooner or later the child will not be able to have a relationship with his father. Dr P says that whilst it is likely that the child would settle with the mother, if he loses “the good father” he will be conflicted and need professional help.
Dr P also explains his view that even if the father is no longer part of the child’s life at all, the current difficulties in the mother/son relationship are unlikely to be overcome. He says that if there are issues between the mother and the child about how the child lives his life, they could only be resolved by the child giving in to the mother, and how the child lives his own life would only be resolved by the mother having her way, or, when he is old enough, the child leaving home.
In oral evidence which further clarifies his recommendations Dr P addresses the issue of how the child will be managed by the father if a change of residence is to occur, and stresses that at first the child will be extremely distressed and will need professional help. Dr P originally says that a settling in period, without seeing the mother, may assist the child, as her delusion like overvalued idea would be so intense that it would be impossible for the mother and the child to have face to face contact without that idea getting in the way of him settling in with his father. Dr P says that whilst the appropriate period before which the child could be reunited with the mother should be at the recommendation of the therapist providing professional support for the child. Dr P says initially he thought something like a six-month period without seeing the mother would be appropriate.
In later evidence Dr P says that the child will miss his mother, and would probably need to spend time with her so that he does not develop a fantasy about her, but only in circumstances where the meetings are brief, the mother is able to handle such a meeting and not continue to refer to the father as a bad man or, as Dr P puts it, brief enough that the time they spend together is “not hijacked by the mother’s anxiety”. Dr P repeats his conclusion that the therapist assisting the child would be the best person to know how the child is responding to any time spent with the mother, including telephone contact. Ultimately Dr P revises his earlier recommendation that it may benefit the child to have a period of something like six months wherein he did not see his mother, saying it is better to err on the side of the child being able to spend some time with the mother if and when residence is changed, even allowing for the difficulty that may be caused by the mother’s inappropriate reaction, which Dr P anticipates. Dr P thinks that the child needs to be reassured that his mother is still around and still alive, and that the Court should err on the side of containing the time the child spends with the mother to an arrangement that has a minimal impact on the relationship between the child and his father. Dr P suggests that for a child of this age the period needs to be brief, and could be supplemented by telephone contact, letter contact, e-mail contact, etc. Dr P warns that there is always going to be the problem of predicting the level of the mother's anxiety, and her need to ask the child what is going on with the father will get in the way. In conclusion Dr P says that, on balance, it would be more detrimental at the child’s age to spend no time at all with the mother than to spend some time with her.
Dr P rejects the proposition that if the child does not have an opportunity to spend time with the mother there may be a reemergence of the child's earlier expressed suicidal thought. Dr P sees those thoughts as being associated with the child’s conflict over the “good father”/“bad father”. Dr P concludes, however, that the child may develop a fantasy that he has in some way been responsible for killing the mother off, and it would be better for the child to spend some face to face time with the mother, perhaps for an hour a week at a Contact Centre.

Dr P says that, with or without the mother and son spending face to face time with each other, there should be telephone contact at least three times a week.
Dr P has assessed D and the child as being able to play together in a brotherly way, and that if they could continue that relationship after a change of residence, it could be helpful and supportive for the child. However Dr P expresses his concern that D, like S, has been caught up in the mother's anxiety, that D, too, is quite torn, acting as the mother's agent in protecting the child from a “bad man”.
Dr P recommends that it would be appropriate for the child psychiatrist, Dr A, to continue seeing the child, and to continue the necessary therapeutic work with the child in the future. Dr P says that the hcild spending time with the mother could only be supported if it is supported by his therapist, and that it may be that if residence is changed Dr A says that the child is not yet ready to see his mother.
In his oral evidence, Dr P clarifies his written recommendation that the pitfalls for the child living with the father are practical and are more readily addressed than the pitfalls of continuing to live with the mother. He says that parenting courses can help parents to be more involved with their children, and the father also needs assistance to open up internally from the point of view of his emotions, and needs assistance to be a sensitive parent. Dr P says that can be helped and supported from a clinical perspective, whilst the emotional pitfalls for the child in living with the mother cannot be addressed from a clinical perspective.
Dr P says that if the child lives with the father the child will be better off emotionally and that the practical shortcomings involved in the father's proposal can be dealt with. When asked if the father will be able to handle a very distressed little boy coming into his care, Dr P says that the child will need his own individual help, and the father will need help to understand how he should help and understand the child, and it would be appropriate if Dr A was available to assist both father and child.
I accept all of Dr P’s evidence, which clarifies for the Court the basis on which he has made a recommendation for a change of residence for the child, a recommendation which clearly has been a difficult one for Dr P, given the stark options for this little boy in this family. Dr P’s recommendations are highly persuasive, given that Dr P’s assessment of the parents and the conclusions he has drawn about their strengths, their weaknesses, and in particular their personalities, have all been demonstrated to me by the parents themselves in the course of the hearing. Dr P describes the very parents and the very attitudes and the very personalities that I have myself had an opportunity to observe and assess over the number of days that this trial has run.
Dr P has given evidence in relation to the impact on the mother of any orders changing residence, and agrees that the mother will be devastated by such orders. In his opinion the mother will at first be anxious, protesting and complaining about him and the court. Then there will be a settling down period when the mother comes to terms with what has happened. Dr P says that people of the mother’s personality type usually have robust defences and in time the mother will be able to get on with her life, which may take months, maybe years, but not decades, and the mother would be seeing the child in that time if that works well for the child.
When asked whether the mother's view about sexual assault can be changed in the future, Dr P says that the mother could see a therapist other than Dr A, but change would occur only if she can recognise in herself that this idea about sexual abuse is an overvalued idea. Dr P says that clinical research would indicate that that is unlikely to happen. He agrees that if she has been seeing a psychiatrist for 12 months that could mean that the mother knows she has a problem, but to see a psychiatrist for that period and still to demonstrate no change in attitude suggests to Dr P that the mother went to the psychiatrist about this angry, abusive father of whom she is complaining, but about whom no-one will listen.
Finally, in relation to the impact upon the child of separation from his mother, Dr P says that the child will be distressed by a change of residence but a change of residence will relieve the child of the anxiety and confusion of living with the mother who is saying that his father is a bad man when the child thought he was not a bad man. Dr P is encouraged by the evidence that the child is obtaining relief during the latter part of the current time he spends with his father. Dr P says that in the future, with his father, the child will be able to live without being torn, and he will also be able to deal with the more ordinary separation from his mother.
Dr P says that the fact that the father works full time makes no significant difference to his ultimate recommendation. That, says Dr P, has to be balanced against continuing to live with a full time parent, that is the mother, in which the child lives in a very toxic environment, and that unless he is removed from that environment he will lose his relationship with his father. I am satisfied that that relationship is important to the child, and sufficiently important for the Court to consider, for both this child's short and long term psychological health and wellbeing generally, to choose a parenting arrangement which changes the child’s residence from the mother to the father, albeit that the options for the Court have appropriately been described by Dr P as “stark”. I am satisfied that it is in the child's best interests to make that change, and I intend to accept Dr P’s recommendation. I am satisfied that the proposal by Dr P, including as it does, professional intervention for both the father and the child, is in the child’s best interests. I note that Dr P’s recommendation is supported by the Independent Children’s Lawyer.
I recommend that the Independent Children’s Lawyer contact Dr A as soon as possible to advise him of the outcome of today's proceedings, and to request that he consider giving priority to the arranging of an appointment to see the child and his father.

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

Associate:

Date: 31 May 2007

[2007] FamCA 1739

24 January 2007

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