FAMILY COURT OF AUSTRALIA

Campbell & Wilson and anor	[2014] FamCA 1002	

FAMILY LAW – CHILDREN – Final Orders – where child has lived with maternal grandmother – where father sought to alter existing parenting arrangements – where father sought to spend supervised time with child – where mother failed to participate in proceedings – where maternal grandmother maintains father has sexually abused the child – where father has history of substance abuse  and violent behaviour – best interests of the child – balance the benefit to the child in having  a meaningful relationship with her father against the need to protect the child from harm – orders made for the child to live with the maternal grandmother who shall have sole parental responsibility – no order for time with the father.	

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA	

Aldridge & Keaton (2009) 42 Fam LR 369
Champness & Hanson (2009) FLC 93-407
Donnell & Dovey (2010) 42 Fam LR 559; (2010) FLC 93-428
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
Slater & Light (2013) 48 Fam LR 573
Valentine & Lacerra and Anor (2013) FLC 93-539; 49 Fam LR 255
Yamada & Cain [2013] FamCAFC 64	

APPLICANT:	Mr Campbell	

FIRST RESPONDENT:	Ms Wilson	

SECOND RESPONDENT:	Mrs Wilson	

Independent children’s lawyer:	Legal Aid QLD	

FILE NUMBER:	BRC	12805		of	2007	

DATE DELIVERED:	13 November 2014	

PLACE DELIVERED:	Adelaide	

PLACE HEARD:	Brisbane	

JUDGMENT OF:	Dawe J	

HEARING DATE:	26, 27, 28 May 2014	

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	In Person	

COUNSEL FOR THE SECOND RESPONDENT:	Ms Frizelle	

SOLICITOR FOR THE SECOND RESPONDENT:	Sempre Vero Law	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms McDiarmid	

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

Orders
(1)	All previous parenting orders are discharged.
(2)	The maternal grandmother shall have sole parental responsibility for the child Z, born … 2005.
(3)	The child do live with the maternal grandmother.
(4)	The child spend time with the mother as agreed between the maternal grandmother and the mother with such time to be supervised by the maternal grandmother.
(5)	The child spend no time with the father.
(6)	The father be at liberty to forward age appropriate letters, cards, gifts and photographs to the child at Christmas, Easter and the child’s birthday.
(7)	The maternal grandmother comply with any reasonable request from the child to forward letters, cards, gifts and photographs to the father including at Christmas, Easter, the father’s birthday and on Father’s Day.
(8)	The father is restrained and an injunction is granted restraining the father from attending the child’s school without the prior written permission of the maternal grandmother.
(9)	That each party keep the other party advised at all times of a current postal address for the other.
(10)	The appointment of the Independent Children’s Lawyer is discharged.
(11)	The matter be removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Campbell & Wilson and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Adelaide	

FILE NUMBER: BRC 12805 of 2007

Mr Campbell 	
Applicant

And

Mrs Wilson 	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	These proceedings concern the parenting arrangements for the child Z (“the child”), born in 2005.  The applicant in these proceedings is the father, Mr Campbell (“the father”), the respondent is the mother, Ms Wilson (“the mother”) and the second respondent is the maternal grandmother, Mrs Wilson (“the grandmother”).  The primary issue to be determined is what time, if any, the child should spend with the father.
2.	Proceedings commenced in 2007.  Final orders were made in this Court by Justice O’Reilly in 2009.  The orders provided that the child live with the grandmother who would have sole parental responsibility for Z.  The father sought to amend the orders of Justice O’Reilly.  He initiated proceedings for a second time in September 2012.  
3.	The matter proceeded to a final hearing before me in May 2014.  For reasons that will become apparent, the mother has failed to actively participate in these proceedings and the matter proceeded without her involvement.
Relevant Background
4.	The applicant father was born in 1972 and is currently 42 years of age.  He has a daughter, K, from another relationship who was born in 2011.
5.	The respondent mother was born in1975 and is now 39 years of age.  The mother has two young children from a later relationship, B born in 2012, and A born in 2013.
6.	The maternal grandmother was born in 1951 and is now 63 years of age.
7.	The mother and father commenced their relationship in 2002.  
8.	The child Z was born in 2005.  Shortly after her birth arrangements were made for the child to live with the maternal grandmother as a result of concerns over the parents’ substance abuse.  
9.	The child has lived with the maternal grandmother since she was three months old.  She is currently eight years of age.
10.	The parents’ relationship ended in March 2006.
11.	Both the mother and the father have a lengthy history of drug abuse.  The father admits to using heroin as recently as April 2013.  The father says he has taken steps to address his addiction and underwent a drug rehabilitation program while in prison.  
12.	Since 2007 the maternal grandmother has alleged the father sexually abused the child.  The allegations were considered by Justice O’Reilly during the 2007 to 2009 proceedings.
13.	In December 2011 the grandmother raised fresh allegations of sexual abuse arising from disclosures made by the child to both the maternal grandmother and a family friend, Ms J.  The maternal grandmother alleges the father had shown the child his penis and forced her to touch him.  An investigation was launched by the Child Protection Unit and the child was subsequently interviewed by police but no further action was taken.
14.	The grandmother refused to facilitate time between the father and child.  Consequently the father has not spent time with the child since early December 2011.  
15.	The grandmother alleges a further disclosure was made by the child to Ms H, the child’s dance teacher, in early 2012 and that the child displayed increasingly sexualised behaviour during that year.  
16.	In 2013 the maternal grandmother was informed by Ms H, that the child had made disclosures to her regarding alleged sexual abuse by the father.
Procedural History
17.	The first set of proceedings commenced when the father filed an Initiating Application on 6 November 2007 seeking parenting orders.  The final hearing occurred over five days in October/November 2009 with Justice O’Reilly delivering a judgment on 23 December 2009 (See Campbell & Wilson and Anor [2009] FamCA 1260).  Justice O’Reilly considered the allegations of sexual abuse raised by the grandmother but did not make a positive finding that the father had sexually abused the child, nor that the father posed an unacceptable risk to the child.  Her Honour did however note the strong attachment between the child and the maternal grandmother.
18.	Her Honour made orders that the grandmother have sole parental responsibility for the child (but before making any long term decisions for the child she would consult with the mother in writing on the understanding that the final decision lay with the maternal grandmother);  the child would live with the maternal grandmother and spend supervised time with the mother as agreed;  the child would spend supervised time with the father as agreed with the maternal grandmother but failing agreement, each alternate weekend between 9.00 am and 5.00 pm on Saturday and Sunday.  The father’s time was to be supervised by the paternal grandmother.
19.	A notation appears on the orders such that if the mother or father can establish through immunoassay hair analysis tests that they have been drug free for twelve consecutive months then such evidence would constitute a change of circumstances within the meaning of Rice & Asplund (1979) FLC 90-725.  
20.	Neither the mother nor the father produced the results of any drug analysis tests to the Court.
21.	The father commenced the current proceedings by way of an Initiating Application filed 21 September 2012.  The father submits that it was the maternal grandmother’s repeated contravention of the 2009 orders that prompted the fresh proceedings.
22.	On 10 December 2012 an Independent Children’s Lawyer was appointed and the matter was transferred to the Family Court of Australia by Federal Magistrate Howard (as he then was).
23.	The maternal grandmother filed a Response on 13 February 2013 effectively seeking the same orders as the orders of December 2009.
24.	Between March 2013 and June 2013 the father was in prison as a result of making death threats against his former partner.  This incident is said to arise from the former partner’s apparent refusal to allow the father to spend time with their infant child.
25.	On 4 April 2013 the first Family Report in this matter was prepared by Ms D.
26.	On 23 April 2013 the mother filed a Notice of Address for Service, being a post office box in suburban Brisbane.  This was the first and only document filed by the mother in these proceedings.
27.	On 11 July 2013 the father filed a Notice of Discontinuance seeking to discontinue the application for interim orders sought in his Initiating Application filed 21 September 2012.  The father still pursued the final orders sought.
28.	The father filed an Amended Initiating Application on 26 July 2013.  The maternal grandmother filed an Amended Response on 20 September 2013.
29.	On 10 December 2013 the father’s solicitors filed a Notice of Ceasing to Act.  The father has appeared unrepresented since.
30.	On 29 January 2014 the second Family Report in this matter was prepared by Ms D.
31.	The trial proceeded on 15 May 2014 at which time counsel for the Independent Children’s Lawyer indicated that the mother was serving a sentence of imprisonment and that she would not be participating at the final hearing.
32.	The trial proceeded before me on 26, 27 and 28 May 2014.  The maternal grandmother and the Independent Children’s Lawyer were represented by counsel.  The father appeared in person.  At the commencement of the final hearing counsel confirmed that the mother was currently in prison and would not be released for several more weeks.  As the mother had failed to actively participate in the Court process since proceedings commenced in September 2011 the final hearing proceeded without her involvement.
33.	Judgment was reserved on 28 May 2014 following submissions.
Orders Sought
34.	The father’s Amended Initiating Application provides a variety of alternatives dependant on whether the Court finds he poses an unacceptable risk to the child, the mother poses an unacceptable risk to the child or neither poses an unacceptable risk to the child.  He sought orders that he have equal shared parental responsibility for the child with the mother.
35.	In summary, if the Court finds he does not pose a risk to the child the father sought equal shared parental responsibility with the mother and a graduated approach to time with the child commencing with two hours every Sunday morning and eventually increasing to alternate weekends over a period of approximately ten months.  
36.	In the alternative, he sought that, if the father does pose a risk to the child, that his time as set out above be supervised by the paternal grandmother, Mrs Campbell.
37.	If the Court finds the mother poses a risk to the child, the father sought sole parental responsibility for the child and that the child live with the father and spend time with the maternal grandmother.
38.	The father also set out proposed orders in relation to handover, drug testing and dispute resolution.
39.	By way of an Amended Response the maternal grandmother sought final orders that the child live with her and that she have sole parental responsibility in respect of the child’s education, religious and cultural upbringing, health and living arrangements.  However, the maternal grandmother notes that before making decisions in relation to those issues she would advise the mother in writing, consider any written response of the mother and then inform the mother of her decision in writing as soon as possible.
40.	In relation to time spent with the parties the maternal grandmother sought orders that any time between the child and mother be as agreed between the maternal grandmother and the mother.  In addition, that any time be supervised either by the maternal grandmother or one of six people listed.  
41.	In relation to time spent with the father, the maternal grandmother specifically sought no order for time between the child and her father.  The orders sought do allow for some telephone communication provided it is not initiated by the father, or if it is initiated by the father it must be by prior written agreement.  
42.	The Amended Response also sets out detailed proposed orders concerning attendance at school, the provision of information and injunctions in relation to drug use, overseas travel and denigration of parties.
43.	The Independent Children’s Lawyer proposed orders similar to  those made by Justice O’Reilly in 2009 namely, that the maternal grandmother have sole parental responsibility and that the child live with her.  The Independent Children’s Lawyer sought an order that the child spend no time with her father.  The Independent Children’s Lawyer proposed limited telephone communication but only if it was initiated by the child, or by prior agreement with the maternal grandmother.  The proposed orders prohibited the father from attending school functions but did provide for the father to receive school reports and permit the paternal grandmother to attend formal school functions provided she does not remove the child from the school grounds.
Evidence
44.	The father relied upon the following documents in support of his application:
•	Amended Initiating Application filed 26 July 2013 (upon noting the father no longer sought orders that the child live with him)
•	Trial Affidavit filed 24 September 2013
•	Affidavit of Mrs Campbell filed 24 September 2013
•	Orders and Reasons for Judgment of Justice O’Reilly dated 23 December 2009
•	Case Information filed 27 September 2013
45.	The respondent maternal grandmother relied upon the following documents:
•	Amended Response to Initiating Application filed 20 September 2013
•	Trial Affidavit filed 18 September 2013
•	Affidavit of Ms H filed 13 February 2013
•	Affidavit of Ms J filed 13 February 2013
•	Affidavit of Dr W filed 27 March 2013
•	Case Information filed 21 May 2014
46.	The Independent Children’s Lawyer relied upon the following documents:
•	Family Assessment Reports of Ms D dated 23 December 2013 and 29 January 2014
•	Orders and Reasons for Judgment of Justice O’Reilly dated 23 December 2009
The Father
47.	In his affidavit evidence the father asserted that he is now drug free and has the capacity to spend unsupervised time with the child.  He maintained that there had been a significant change in circumstances since the orders were made in December 2009, including that the mother of the child had two other children.
48.	In that affidavit he refers to what he describes as “a non-committed relationship” with Ms V, with whom he has conceived a child, LL.  His affidavit refers to the incident which occurred on 24 March 2013.  He says that he went to her home “after having a few drinks” (paragraph 144 of the father’s affidavit filed on 24 September 2013).  He then sets out briefly his version of the incident which occurred, including him breaking one of the windows of the house and entering through the back-door.  Paragraph 149 of his affidavit says:
In the heat of the moment I got on top of her.  I hit her a few times.  I had only been on top of her for a few seconds before the police arrived and took me away.  I was under the effects of alcohol and was not thinking clearly at the time.  I am extremely regretful of my actions that night and realise there is no excuse for what I did.
49.	Following this incident he was charged, denied bail and remained in prison for 76 days.
50.	On 13 June 2013 he pleaded guilty to entering a dwelling with intent, threatening violence, assault occasioning bodily harm and wilful damage.  He was sentenced to nine months in prison, but granted parole on conditions.  There was also a Domestic Violence Order made in March 2013 which continued for two years.
51.	During cross-examination the father gave inconsistent evidence about the dates in which he had been drug free.  His excuse for not obtaining hair follicle tests was that he did not have the money to pay for it.
52.	He vehemently denied any sexual abuse of the child Z.  He maintained that his recent times with the child had always been supervised by his mother.
53.	During cross-examination he was also questioned about the incident in March 2013 when he assaulted Ms V.  He conceded that he went to her home at around 3.15 am, was not invited there and that the assault upon Ms V stopped when his mother came to the premises and intervened to protect Ms V.  He denied that he was under the influence of drugs at the time, but said “No, just alcohol”.
54.	The father attempted to minimise his past difficulties, including his drug addiction and violent behaviour.  His inconsistencies in relation to his drug use and his attempts to minimise the significant violent behaviour towards Ms V in March 2013 give rise to considerable concern.
55.	Where there is a difference in the evidence of the father and the maternal grandmother, the evidence of the maternal grandmother is to be preferred.
Mrs Campbell (Paternal Grandmother)
56.	The father relied upon the evidence of his mother.  Her affidavit refers to the arrangements concerning the child since the Court Orders of 2009.
57.	Some of the evidence relates to the paternal grandmother’s concern that the maternal grandmother was allowing her daughter to see the child at times not appropriately supervised.
58.	Her affidavit refers to the allegations made concerning the father sexually abusing the child.  Her evidence maintained that she had been present at all times during the period of the father’s time with the child in early December 2011 and that the child had not been abused in any way.  
59.	The affidavit refers to the ongoing communication between the mother and the paternal grandmother about the allegations and arrangements concerning the child.
60.	Her affidavit also deals with the incident of 24 March 2013.  The incident is described as follows:
79.	On 24 March 2013, in the early house of the morning, [the father’s] then partner [Ms V] called me on my mobile and asked me if I could come to her house and pickup [the father].
80.	Upon arrival at her house I saw that she and [the father] were in a verbal and physical altercation.  I tried to intervene however the Police had been called and arrived shortly thereafter.  [The father] was taken to [the] Police Station.
61.	Generally, her affidavit supported the father’s case maintaining that he had ceased to use drugs since January 2013.
62.	During her oral evidence she confirmed that she would agree to the father living with her on a permanent basis.
63.	She also conceded that she does, on most occasions, do what her son asks her to do.  When asked whether her son listened to her views she replied, “sometimes he does, sometimes he doesn’t”.  
64.	When giving her oral evidence about the incident with Ms V in March 2013, she agreed that she had tried to pull him off Ms V and that he was still enraged when the police arrived.
65.	She maintained that there had been no opportunity for the father to abuse the child in any way while she was supervising his time with her up until early December 2011.
66.	When she was asked whether she could identify when he was under the influence of illicit drugs, she said “No, sometimes his behaviour becomes a bit erratic”.  She also indicated that the father had never requested that he borrow money from her or that she provide money for the drug tests.
67.	In summary, the paternal grandmother’s evidence needs to be considered in the context of her attempting to support her son in his endeavours to spend time with the child.  Her ability as a supervisor needs to be seen in the context of the father’s past behaviour, and in particular, the evidence which indicates that she is unable to ensure that her son always follows her directions.
Mrs Wilson (Maternal Grandmother)
68.	In her trial affidavit the maternal grandmother refers to the history of litigation and the previous allegations of sexual abuse.  She then sets out the concerns she has about the father and his behaviour towards the child, including the allegations made by the child in early December 2011.  These include that the child said to her during conversation on 6 December 2011:
On 6 December 2011, [the child] brought home a Christmas present from school.  The gift tag was addressed to “Mummy & Dad”.  I said to [the child], “You can give it to [the father] if you want too (sic).”  [The child] replied, “No, he is yucky.”  I asked [the child] why.  [The child] replied, “He showed me his penis and his bum hole.  He put his penis on me and made me touch it”  [The child] became upset and did not want to talk anymore.  I left the conversation at that.
69.	The affidavit then refers to further conversations with the child and the arrangements which were made for the allegations to be investigated.
70.	In the affidavit the maternal grandmother sets out the arrangements she made with the mother for her to spend time with the child, including the arrangements she made when the child was in the care of the mother without appropriate supervision.
71.	The Exhibit provided to the Court includes the disclosures made by the child to the CSO Officers, including that she had seen her “Daddy’s bottom” and that when questioned she had indicated that her father had touched her “fi-fi” (referring to her vaginal area).  A similar disclosure was made to the police.
72.	The maternal grandmother’s evidence clearly indicates that she believes that the child has been sexually abused by the father and would be at risk in his care.
73.	When cross-examined at the trial, the maternal grandmother indicated that she believed that the child’s mother was in gaol for what she understood to be shoplifting.
74.	During cross-examination she conceded that in hindsight she had possibly made the wrong decision when she allowed the child to be in the care of her mother and her friend while the maternal grandmother was unable to care for the child.  
75.	During cross-examination by Counsel for the Independent Children’s Lawyer, the maternal grandmother also conceded that her version of events when she allowed the child to be cared for by the mother has not been accurate.
76.	The maternal grandmother was supportive of the mother and indicated that she would endeavour to maintain the relationship between the child and the mother whilst protecting the child from any risk.
77.	Whilst being cross-examined by Counsel for the Independent Children’s Lawyer about the allegations concerning the sexual abuse the maternal grandmother became upset.  Overall, however, her evidence did not indicate that she had fabricated the allegations or encouraged the child to make false allegations.
78.	While some of her evidence in cross-examination was inconsistent, I am satisfied that the child had made a serious accusation about the father’s behaviour towards her and that the maternal grandmother genuinely believes that sexual abuse occurred.  The evidence does not support the contention that the maternal grandmother had coached the child to make up the allegations or that the maternal grandmother is deliberately misleading the Court about the allegations.
79.	Although the maternal grandmother was not entirely consistent in all of her evidence, I am satisfied that her evidence establishes that she genuinely believed that the child has been sexually abused by the father and that she has genuine concerns about the mother’s ability and the father’s ability to provide safe care for the child.
Dr W
80.	The maternal grandmother relied upon the report and evidence of Dr W, a clinical psychologist.  
81.	Her report is dated 17 March 2014.  The report sets out the assistance given to the maternal grandmother and the child following upon the request from the maternal grandmother.
82.	The treatment was based upon the history of behaviour of the child provided to the psychologist by the maternal grandmother and follows counselling provided to the child from Bravehearts, the specialist counselling service offered to children affected by sexual abuse.
83.	During cross-examination by the father, Dr W stated that the child had never spoken about the father to her.
84.	There was no significant challenge to the opinion or evidence of Dr W.
Ms J
85.	The maternal grandmother relied upon the evidence of Ms J, a friend of the family.  Her affidavit indicates that she is a health professional who has known the maternal grandmother since 2011 and the mother since 1989.  She also stated that she had a close and trusting friendship with the child.  Ms J has assisted the maternal grandmother in collecting the child from time to time.
86.	In her affidavit she deals with the disclosures that the child made to her on 3 December 2011.  In her affidavit she states:
5.	On 3 December 2011, I picked [the child] up from the [M] Contact Centre after spending time with her Father, as [the maternal grandmother] was feeling unwell.  On the car ride home [the child] was quiet and shy, which was unlike her.  To cheer [the child] up, I started to sing songs with her and she started to laugh and come out of her shell.
6.	When we got home [the child] needed to go to the toilet and I helped her as her arm was broken and in plaster.  When I lifted [the child] onto the toilet, she asked me to stay with her and whispered in my ear “my (pointing at her genital area) is really sore and stinging”.
7.	I asked [the child], “Is there was (sic) any reason why it is sore?” [The child] replied, “[The father] touched it with his penis and his penis was angry.”
8.	I then asked [the child] “Are you sure because [the paternal grandmother] would have seen.”  [The child] replied, “No [the paternal grandmother] was hanging washing out and [the father] did it then.”
9.	I told [the child] that this was not normal behaviour and [the child] replied, “Don’t tell mummy cause [the father] said if I tell mummy she will go to jail.”  I then told [the child] that I was proud of her for telling me this.
10.	I have also witnessed on several occasions [the child] telling other young children about the above incident.  For example in late 2012, I had children in my care and while they were playing they asked [the child] who her dad was.  [The child] replied, “[The father]”.  They asked her when she saw him.  [The child] replied, “I don’t, he does bad stuff to me”.  One of the children, …, asked “like what?”  [The child] replied, “[The father] touches my privates.”
11.	[The child] then asked my partners (sic) 4 year old daughter, [I], if her dad touches her.  [I] replied, “Yes all the time, he cuddles me.”  [The child] said, “Does he touch your wee wee?”  [I] replied, “No”.
87.	When cross-examined by the father she maintained that she continued to supervise the mother when the child was in her care.  She confirmed that the maternal grandmother had been ill and she had been asked to collect the child.  She confirmed that the child had stayed with her for three weeks in November 2012 and that she had also assisted with caring for the mother’s younger child.
88.	Although at times during cross-examination she was inconsistent with some of the dates, the majority of her evidence was consistent and reliable.
Ms H
89.	The maternal grandmother also relied upon the evidence of Ms H, who is a dance teacher.  She has known the maternal grandmother and the child since the child was a dance student.  Her daughter is a friend of the child.
90.	Her evidence included the following:
3.	In early 2012, [the child] stayed the weekend at my home.  While [the child] was at my home, in conversation I asked what she normally does on the weekends.  [The child] said, “Not much”.  I then asked if she goes to see her Dad some weekends.  [The child] replied, “I use (sic) to, but I don’t go there anymore.”
4.	I said, “Oh ok does he live far away?”  [The child] replied, “No I don’t like going there because he touches me in my rude parts”.
5.	I was shock (sic) when she told me, so I asked [the child] if she had told her mum and she said, “Yes”.  I asked [the child] what her Mum said and she replied, “She said I don’t have to go there anymore”.
6.	I told [the child] that was good and you should always tell your mum if somebody does something wrong to you.  I felt that the matter was dealt with and I didn’t tell anyone about our conversation as it was a private matter.
7.	Prior to 9 February 2013, I didn’t talk to [the maternal grandmother] about what [the child] had told me, as I thought they would be embarrassed and [the child] had said the matter had been dealt with.
91.	During cross-examination, Ms H agreed that she did not tell the maternal grandmother of the conversation for a period of about 12 months.  She explained that when she asked the child whether she told “Mum” she said that she had.  She assumed therefore that the issue had been dealt with and it was “none of her business”.
92.	During cross-examination by Counsel for the Independent Children’s Lawyer she gave evidence that the child’s demeanour was somewhat awkward at the time.
93.	The witness was not significantly challenged in any way on her evidence.
Ms D (Family Consultant)
94.	Ms D prepared two Family Reports in this matter dated 4 April 2013 and 29 January 2014.  Ms D gave evidence at the final hearing which confirmed her earlier findings save and except she now recommends the maternal grandmother have sole parental responsibility for the child.
95.	The initial Family Report described the maternal grandmother as a reluctant carer for the child who impressed as being “fatigued by the responsibility of this role”.  However, in the updated Family Report the maternal grandmother’s health had improved and she impressed as “less emotionally burdened…more relaxed and rejuvenated”.  The writer reports that the grandmother “acknowledged that while her role of being [the child’s] primary carer is not one that she would have chosen, she accepts it”.  
96.	While noting there was no evidence to suggest the maternal grandmother’s care of the child was anything other than entirely proper Ms D was critical of the maternal grandmother’s attitude to ensuring that time between the mother and child was properly supervised.  She noted that the maternal grandmother had “good intentions” but would need to be vigilant in terms of any time between the child and her mother given the mother’s history of substance abuse and recent relapses.
97.	In relation to the substance abuse issues Ms D noted in her report that both parents “have misused drugs for a good part of their adulthood and based on their historical pattern of drug taking behaviour there is a high risk that they will continue to do so in the future”.  The writer goes on to note that the father “does not likely have insight into his drug use” and does not appear to have ever attempted rehabilitation.  In her evidence Ms D was sceptical of the father’s recent attempts to address his addictions through therapeutic intervention.
98.	Ms D was not able to conduct an observed interaction between the father and child due to the child’s reluctance.  Notwithstanding Ms D was unable to assess any interaction she noted that the child had not seen her father for a number of years and that she was “stating the obvious” by finding the child does not have a relationship with her father.  This was in part attributed to the trenchant views of the maternal grandmother and mother:
Both have made it especially clear that they will not facilitate a relationship with [the father] irrespective of the Court’s findings regarding their allegations of sexual abuse.  In some circumstances, this may warrant a change in residency, but for reasons outlined above, I assess this not to be in [the child’s] best interests.
99.	When counsel for the Independent Children’s Lawyer suggested the assistance of the Children’s Contact Service to re-establish a relationship, Ms D stated that it would only create a “superficial relationship” and potentially place the child at risk of harm.  Ms D’s evidence reinforced the conclusions in the updated report prepared 29 January 2014:
If it were not for [the father’s] violent behaviour in the last year, the aforementioned may have posed a dilemma as to how [the child’s] relationship with him would be facilitated.  But, in light of this, I have concerns about [the child’s] safety with her father and compounded by the fact that she does not have a relationship with him now I am of the view that it does not serve [the child’s] best interest to re-establish one.
100.	Acknowledging that if the child was to spend no time with her father the child may struggle with identity issues into the future, Ms D indicated that in such situations another member of the extended family can often act as an intermediary or conduit for the passage of information but that in this instance, and given the risk to the child’s physical and psychological safety, she was concerned by comments made by the paternal grandmother to the effect that she would prioritise her relationship with her son over that with her granddaughter.
The Law
101.	Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters in which the Court needs to consider for parenting orders.  The relevant sections are set out below:
Section 60B
Object 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)	For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
	(a)	to maintain a connection with that culture; and
	(b)	to have the support, opportunity and encouragement 	necessary:
		(i)	to explore the full extent of that culture, consistent 		with the child’s age and developmental level and the child’s 		views; and
		(ii)	to develop a positive appreciation of that culture.
Section 60CA 
Child's best interests paramount consideration in making a parenting order 
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.  
Section 60CC
How a court determines what is in a child’s best interests 
Determining child’s best interests
(1)	Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).  
Primary considerations
(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
(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.
(4)	Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
	(a)	has taken, or failed to take, the opportunity:
		(i)	to participate in making decisions about major long-		term issues in relation to the child;  and
		(ii)	to spend time with the child;  and
		(iii)	to communicate with the child;  and
	(b)	has facilitated, or failed to facilitate, the other parent:
		(i)	participating in making decisions about major long-		term issues in relation to the child;  and
		(ii)	spending time with the child;  and
		(iii)	communicating with the child;  and
	(c)	has fulfilled, or failed to fulfil, the parent’s obligation to 	maintain the child.
(4A)	If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 61DA 
Presumption of equal shared parental responsibility when making parenting orders 
(1)	When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.  
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). 
(2)	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: 
	(a)	abuse of the child or another child who, at the time, was a 	member of the parent's family (or that other person's family); or 
	(b)	family violence.  
(3)	When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.  
(4)	The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.  
Section 65C
Who may apply for a parenting order 
A parenting order in relation to a child may be applied for by: 
	(a)	either or both of the child's parents; or 
	(b)	the child; or 
	(ba)	a grandparent of the child; or 
		(c)	any other person concerned with the care, welfare or 			development of the child.
Allegations of Sexual Abuse
102.	The High Court considered this Court’s approach to allegations of sexual abuse and the requisite standard of proof in the decision of M & M (1988) 166 CLR 69 at 76-78:
… 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 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] HCA 34; (1938) 60 CLR 336, at p 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 remarks 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.
…
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.  Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.  But that is not the issue in this case.  
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations.  The degree of risk has been described as a "risk of serious harm", "an element of risk" or "an appreciable risk", "a real possibility", a "real risk", and an "unacceptable risk".  This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.  (citations omitted)
103.	The Full Court of this Court considered the application of “unacceptable risk” following M & M (supra) in the decision of Johnson & Page (2007) FLC 93-344.  With reference to the writings of a former judge of the Family Court their Honours outlined the principles to follow when considering “unacceptable risk” at 68:
68.	In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon.  John Fogarty A.M.  set out his summary of the principles emerging from M and M as follows:
1.	The decisive issue is and always remains the best interests of that child.  All other issues are subservient.
2.	The nature of the risk is best expressed by the term ‘unacceptable risk’.  It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.	Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue.  Where, however, that is done the Briginshaw civil standard of proof applies.
4.	The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.	The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.	The onus of proof in reaching that conclusion is the ordinary civil standard.
7.	But the components which go to make up that conclusion need not each be established on the balance of probabilities.  The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.	We generally agree with Mr.  Fogarty’s seven point summary (see paragraph 68).   We assume point seven of that summary is directed to the requisite standard of proof.   We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
104.	The approach outlined above was cited with approval by a differently constituted Full Court in the decision of Slater & Light (2013) 48 Fam LR 573.
105.	Accordingly, I must apply the civil standard of proof contained in s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), with reference to the factors outlined in Briginshaw, when determining allegations of sexual abuse.  
Discussion and Findings
106.	As a person concerned with the care, welfare and development of a child the maternal grandmother is entitled to pursue an application for parenting orders.  However, where the Act contains specific references to “parents” it is not intended to extend to parties who are not the parents of the subject child (Aldridge & Keaton (2009) 42 Fam LR 369).  Consequently the presumption of equal shared parental responsibility contained in s 61DA does not apply.
107.	Pursuant to s 60CC(2)(a) a primary consideration of the Court is the benefit to the child of having a meaningful relationship with both parents.  While the maternal grandmother has been the child’s primary caregiver for the balance of the child’s life she cannot be elevated to the status of a parent for the purposes of s 60CC(2)(a).  
108.	Notwithstanding that the maintenance of a meaningful relationship with a non-parent is not a primary consideration the Full Court in Donnell & Dovey (2010) 42 Fam LR 559 did not consider that relationship to be of less significance, noting that in certain circumstances “the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent” (see Donnell & Dovey (supra) at [101]-[102]).
109.	Donnell & Dovey (supra) was recently endorsed by a differently constituted Full Court in Valentine & Lacerra and Anor (2013) FLC 93-539; 49 Fam LR 255.  The Full Court noted at 43:
The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration…
110.	Similarly, the Full Court in Yamada & Cain [2013] FamCAFC 64 at 27:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
111.	The maternal grandmother has been the child’s primary caregiver almost from birth.  The child is now eight years of age and clearly has a strong attachment to her grandmother.  There is no information before the Court to suggest that her emotional and intellectual needs are not being met by the grandmother, or that the grandmother has failed to adequately care for the child.
112.	The benefit to the child of a meaningful relationship with the father remains a primary consideration.  It is however one that must be balanced against the need to protect the child from harm (s60CC(2)(b)).  Section 60CC(2A) requires the Court to give greater weight to the need to protect the child.
113.	The child has not seen the father for a considerable period of time.  The child does not now have a relationship with her father.  Importantly, the Family Consultant did not consider that re-establishing a relationship would be in the child’s best interests.  In those circumstances the remarks of the Full Court in Champness & Hanson (2009) FLC 93-407 at 103 are relevant:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents.  This is an incorrect assumption.  The Court’s obligation is to make the orders most likely to promote the child’s best interests.  In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.  (emphasis in original)
114.	The risk of harm to the child is a significant factor in this case.  The father has a lengthy history of substance abuse but maintains that he no longer has a drug problem.  His evidence on this topic is inconsistent and unreliable.  Of further concern is the father’s recent violent behaviour towards his former partner and his inability to properly consider the impact of his actions on others.  The father’s lack of insight in this respect was noted by Ms D in her report:
[The father] does not fully comprehend the severity of his behaviour.  Indeed, he acknowledges that it was wrong, but this appears only to be superficial.  There was a sense that [the father] lacks insight into the consequences of his behaviour and the impact this likely has had on his target.  He could not understand why the Court may question the safety of [the child], and this in itself I identify as being a risk.  It suggests to me that he may be relaxed in regulating his impulsive behaviour.
115.	While supervision at a Children’s Contact Centre may protect the child from physical harm it will more likely than not place the child at risk of psychological harm.  In any event, long term supervision for an indefinite or indeterminate period is not appropriate (See Moose & Moose (2008) FLC 93-375).
116.	I accept the evidence of the maternal grandmother and prefer her evidence to that of the father.  However, the evidence of the maternal grandmother and the other witnesses who provided their version of the comments the child made to them concerning the allegations of sexual abuse must be considered in the light of the child’s age and the ongoing difficult relationship between the maternal grandmother and the father at that time.  It is also necessary to consider the history of the matter and consider these allegations in the context of the previous allegations and previous proceedings.
117.	Notwithstanding, that the Court accepts the maternal grandmother’s belief that the child has been sexually abused by the father, the evidence is not sufficient to establish on the necessary standard of proof that the child has been sexually abused by her father or that there is an unacceptable risk of sexual abuse if the child were to be in the care of the father.
118.	Significantly, however, there remains the need to protect the child from psychological harm and the unacceptable risk of physical harm if the child is required to renew her relationship with the father.
119.	The evidence clearly establishes significant concerns about a relationship with the father creating an unacceptable risk of psychological harm for the child the child.
120.	The father’s history of violent behaviour and drug abuse also creates an unacceptable risk of harm to the child.
121.	Even supervised time with the father raises a significant possibility of psychological harm for the child.
122.	It is necessary to consider the additional considerations set out in s 60CC(3).
Additional considerations.
(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; 
123.	Taking into account the child’s age and the background to the care she has received, it is not appropriate to give her views significant weight in this matter.
(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); 
124.	It is clear that the strong bond and close relationship the child has with the maternal grandmother is the most significant.  She has only a limited relationship with each of her parents.  This has been brought about by the parents’ drug abuse and previous inability to provide proper care for the child.
(a)	the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)	to participate in making decisions about major long-term issues in relation to the child; and
(ii)	to spend time with the child; and 
(iii)	to communicate with the child;

125.	The mother’s ongoing drug abuse and incarceration has limited her ability to participate in long term decisions concerning the child or to spend time with the child.  She has also failed to communicate with the child in a significant way.
126.	In recent years the father has attempted to continue his relationship with the child.  His inability to spend time with the child and communicate with the child has been brought about by the allegations of abuse and the ongoing Court proceedings.
(ca)	the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
127.	Neither the mother nor the father has contributed in any significant way to the maintenance of the child.
(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; 
128.	As is indicated by the Family Consultant, any change in the child’s ongoing care by the maternal grandmother is likely to have a significant effect upon the child’s wellbeing.
129.	There is not likely to be any significant effect upon the child if she remains in the care of the maternal grandmother, does not have any time with the father and has only limited time with the mother as arranged and supervised by the maternal grandmother.
(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; 
130.	One of the practical difficulties which would arise if the child were to spend time with or communicate with the father, is the difficulty the maternal grandmother and father have in carrying out any form of communication.  This difficulty is however not a determining issue.
(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; 
131.	Each of the child’s parents has not indicated any significant capacity to provide for the child’s needs, particularly her emotional and intellectual needs.  Both of the parents have had significant drug abuse difficulties in the past.  The father has not established to the satisfaction of the Court that he has the capacity to provide for the child’s needs, either on a practical level or concerning her emotional and intellectual needs.
132.	In contrast the maternal grandmother has carried out the responsibilities of parenting the child.  I am satisfied that she has established, and will continue to have, a capacity to provide for the child’s needs on a practical level as well as an intellectual, psychological and emotional level.
(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;
And
(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;
133.	These are not significant relevant factors in this matter.
(i)	the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
134.	The parents’ drug abuse has clearly impacted upon their attitude to their responsibilities of parenthood.  The father’s violent behaviour in the past also suggests that he has limited understanding of the responsibility of a parent to protect the child from being exposed to family violence.
(j)	any family violence involving the child or a member of the child's family;
135.	The father’s violent behaviour, which resulted in the convictions and sentence of imprisonment is significant.  This behaviour, which he acknowledged could have been heard or seen by one of his other children, raised serious concerns.
(k)	if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)	the nature of the order;
(ii)	the circumstances in which the order was made;
(iii)	any evidence admitted in proceedings for the order;
(iv)	any findings made by the court in, or in proceedings for, the order;
(v)	any other relevant matter;
136.	No Family Violence Order currently protects the maternal grandmother and the child.
(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;
137.	It is certainly preferable in this case to make an order which is least likely to lead to the institution of further proceedings.  An order which provided for conditions to be met would run the risk of further proceedings.  I am satisfied in this case that it would be in the child’s best interest if the litigation could come to an end.  This is best achieved by giving the maternal grandmother sole responsibility and for orders to be made which would not require interpretation or further involvement with other authorities.
(m)	any other fact or circumstance that the court thinks is relevant.
138.	I accept that the maternal grandmother believes that the father has sexually abused the child.  Her role in continuing as primary caregiver for the child may be jeopardised by orders which would require her to encourage the child to spend time with the father.
139.	The paternal grandmother wished to be able to participate in some way in the child’s life.  It was suggested that an order be made to permit her to attend school functions.  This would run the risk of further proceedings.  In any event, if the maternal grandmother has sole parental responsibility it will be up to her to decide, taking into account the welfare of the child, about participation the paternal grandmother may have in the various activities.
140.	Taking into account all of the factors pursuant to s 60CC, the Court is satisfied that it is in the best interests of the child that the maternal grandmother have sole parental responsibility for the child and that the child live with her.  It is also in the child’s best interest that there be no order providing for the father to spend any time with the child or communicate with the child.  Any arrangement for the mother to spend time with the child should be as agreed between the maternal grandmother and the mother provided that such time is supervised by the maternal grandmother.
Conclusion
141.	Accordingly, I make the orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 November 2014

Associate:  
Date:  13 November 2014