ADAMI & ADAMI

[2015] FCCA 1256

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMI & ADAMI [2015] FCCA 1256

Catchwords:
FAMILY LAW – Interim parenting – future care arrangements – mother seeks that the father have supervised time with child – allegations of unacceptable risk – proposals for formal and informal supervised time considered – basis for supervision – bases for the mother’s concerns suggested to warrant supervision substantially predating separation and the mother’s provision of unsupervised time with the father – adequacy of informal supervision – allegations of mutual drug use – concession by father of drug use and production of string of urinalysis reports showing no detectable substance.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60I, 61C, 65DAA(5), Part II
Federal Circuit Court Rules 2001

Evidence Act 1995, s.131, Part II: Division 2, Division 3

Bail Act 2013

Goode & Goode (2006) FLC 93-286
Deacon & Castle [2013] FCCA 691
Johnson & Page [2007] FamCA 1235
M & M [1988] HCA 68
Briginshaw v Briginshaw (1938) 60 CLR 336
A v A (1976) V.R. 298
B & B (1986) FLC 91-758
Leveque v Leveque (1983) 54 B.C.L.R 164
Re G (a minor) (1987) 1 W.L.R. 1461
W & W (abuse allegations: unacceptable risk) (2005) FLC 93-235
N & S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
S & S [1994] NZFLR 657
M v Y [1994] NZFLR 1
Potter v Potter (2007) FamCA 350
B & B (1993) FLC 92-357
Burton & Churchin and Anor [2013] FamCAFC 180
Grange & Gardiner [2011] FMCAfam 1313

Applicant: MR ADAMI

Respondent: MS ADAMI

File Number: PAC 1110 of 2015

Judgment of: Judge Harman

Hearing date: 4 May 2015

Date of Last Submission: 4 May 2015

Delivered at: Parramatta

Delivered on: 4 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Obradovic

Solicitors for the Applicant: Bennelong Legal

Solicitors for the Respondent: Mr Wahhab of York Law Family Law Specialists

ORDERS

1. Pursuant to section 61C of the Family Law Act 1975 each parent shall, at such times as she is in their care, have parental responsibility for the child, X born (omitted) 2013.

2. X shall live with her mother.

3. X shall spend time with her father from 9.00am until 5.00pm each Saturday.

4. For the purpose of implementing the above time, the father shall cause one or other of his parents or his sister, Ms A, to collect X from the home of the mother at the commencement of each period and the mother shall collect X from the home of the paternal grandparents at the conclusion of each period.

5. The father’s time with X shall occur at the home of the paternal grandparents (unless agreed between the parties to the contrary) and with one or other of his parents and his sister present at all times.

6. IT IS NOTED that the above Orders (as regards the venue of time and presence of other persons) are made without prejudice to any application that the parents or either of them should seek to agitate on future occasions and in the context that the matter has been determined in a duty list without any testing of evidence or significant findings of fact.

7. Each of the parents shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any preschool, day care centre or similar service attended by X as both a parent and emergency contact person and such that each can then obtain directly from that service all information or reports as they desire.

8. Each parent shall keep the other advised at all times of their residential address and contact details including phone number and email address.

9. Each parent shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to ensure that each parent is recorded with any treating medical practitioner for X as a parent and a person authorised to attend upon that practitioner and provide and/or obtain information with respect to X.

10. Each party shall forthwith and contemporaneous with the event advise the other of any significant illness or injury relating to or sustained by X including sufficient details to enable each parent to be engaged in any treatment provided or recommended and visit X if hospitalised.

11. Without admission, the father undertake urinalysis (by provision of urine screen in accordance with AS 4308:2008 or any subsequent approved standard) or blood testing for drug screening within two business days of receiving a request from the mother or the mother’s solicitors, with such request to be communicated by email or SMS communication to father directly, and the father is to provide copies of the results of the test to the mother’s solicitor within 48 hours of receipt of same. The mother is not to make such requests more than twice per calendar month.

12. The child shall communicate with the father via Skype or other form of video conferencing as available to the parents, on each Monday and Wednesday between 3.30pm and 4.00pm and the Court notes that the parents anticipate that each such session shall be for no longer than 10 minutes.

13. The father shall within fourteen (14) days return to the mother the complete memory book established for the child provided the father shall be at liberty to copy the book, but not remove items therefrom, prior to its return.

14. 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.

THE COURT FURTHER ORDERS THAT:

1. The matter is adjourned for further mention and directions to 18 August 2015 at 2.15pm.

2. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Unifam Sydney for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for programs offered by that organisation and subject to the assessment of suitability each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete such program.

3. Each party shall, within four (4) weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1110 of 2015

MR ADAMI

Applicant

And

MS ADAMI

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for a young child, X, born (omitted) 2013. X is a little over one year of age.

2. The parties to the proceedings are X’s parents, namely, her father, Mr Adami, who is the Applicant, and her mother Ms Adami, who is the Respondent.

3. The parties are in a heated dispute regarding most factual issues.  Accordingly, as with most, if not all, interim parenting proceedings, it is difficult to make any finding of fact. Some findings of fact are available through concession and commonality or mutuality of evidence.

4. The Full Court has never dictated that findings of fact cannot be made at interim hearing (see, for example, paragraph 68 of Goode & Goode (2006) FLC 93-286), purely that caution should be exercised and that findings should only be made if considered necessary and then only when there is concession or irresistible corroboration. I propose to adopt the caution that the Full Court has urged.

Material considered in dealing with the proceedings today

1. I have read and considered each of the documents that the parties have provided.

2. From the outset, I make clear that these proceedings, heard as they are, at Parramatta, are not the subject of the Chief Judge of the Federal Circuit Court’s practice direction regarding the filing of material in interim proceedings. That practice direction, which applies in the Sydney Registry, imposes limits upon the length of material filed. As a consequence of the non-application of that practice direction the Court has received over 200 pages of material filed by the parties or one or other of them. The time has surely come when the practice direction will find its way 17 kilometres further west and impose prohibitions here also.

3. I also make clear that these proceedings are dealt with in a busy duty list and thus to the extent that I do not refer to all of the evidence, I make clear that it has all been considered. Time does not permit a more detailed Judgment if the day’s work is to be completed.

4. In the father’s case I have read and considered each of the following:

   a)His Initiating Application filed on 13 March 2015;

   b)His Affidavit of evidence-in-chief sworn or affirmed 12 March 2015, filed 13 March 2015;

   c)Notice of Risk, filed 13 March 2015.

   d)An Affidavit by the paternal grandmother, sworn or affirmed 29 April 2015, filed 1 May 2015;

   e)An Affidavit by the paternal grandfather, sworn or affirmed 29 April 2015, filed 1 May 2015;

   f)Finally, an Affidavit by the father’s sister, the child’s paternal aunt, sworn or affirmed 29 April 2015, filed 1 May 2015.

5. I pause to note that the Notice of Risk filed by the father is filed pursuant to the Federal Circuit Court Rules 2001 compelling its filing irrespective of whether an allegation is raised or not. No allegation is raised. 

6. In the father’s case I have also received two Exhibits comprising:

   a)Exhibit A1, a Minute of Orders proposed for the purpose of today’s proceedings; and

   b)Exhibit A2, two urine analysis reports, completed by (omitted) Pathology, they being in addition to a number of reports annexed to the father’s Affidavit.

7. In the mother’s case, I have read and considered each of the following:

   a)The Response, filed 1 May 2015;

   b)The mother’s Affidavit of evidence-in-chief, sworn or affirmed 30 April 2015, filed 1 May 2015;

   c)Notice of Risk filed 1 May 2015. The Notice does allege risk. I shall return to that issue;

   d)Exhibit R1, a Minute of Orders proposed for today’s purposes.

Parties proposals

1. The father proposes that he would spend time with young X on a graduating basis commencing, for a period of three months, with time occurring each Saturday from 9am until 5pm and each Tuesday and Thursday from 5pm until 7pm. Time would then, on the father’s proposal, build up to incorporate overnight time and such that within a period of six months the child would be spending time with the father each alternate weekend, Friday to Sunday, as well as mid-week periods together with further periods of time during school holidays and other special events.

2. I am not satisfied, for the purpose of today’s determination that I need proceed with such a far reaching regime of time. I am satisfied that the best that can be done on the evidence available and the heated disagreement between the parties, is to put in place, as it were, a “holding pattern” and to then engage the parties with family counselling services and review the matter in the foreseeable future when a date can be found to accommodate it in a duty list.

3. That is not to suggest that the matter will be adjourned to a further interim hearing. One would hope that the parties would be able, with the assistance of their attorneys, family counselling services or otherwise, to seek some further movement forward of time, subject to the perception of each parent that the matter is progressing well or otherwise. 

4. It should be observed that the parties have, prior to commencing the proceedings, attended with a private Family Dispute Resolution Practitioner. A Certificate has been obtained and filed suggesting that the parties each made a genuine effort although, clearly reaching no agreement.

5. It is regrettable, to some extent, that there has been delay whilst Family Dispute Resolution has occurred. I am incredibly conscious of the value that is brought to parenting proceedings by Family Dispute Resolution. Further, I am conscious of the objects of section 60I(1) of the Family Law Act 1975 (Cth), intended to ensure that all persons who have a dispute in relation to parenting make a genuine effort to resolve that dispute before an Order is applied for.

6. However, in this case, a child at the time that the parties separated, not yet one year of age, and with no time occurring between the father and the child, that circumstance now having pertained for some six months, (i.e. approximately two thirds of the child’s life), it is regrettable that an application for exemption was not made instead. Once interim issues were dealt with, section 60I(9) of the Act could have been utilised to then direct the parties to Family Dispute Resolution. In any event that interim determination will occur today.

7. An evidential issue suggested to be of some moment is also raised although, ultimately not dispositive of any issue in the proceedings. Annexed to the mother’s material are two pieces of correspondence between attorneys or former attorneys of the parties. Each piece of correspondence is headed “without prejudice save as to costs”. The father objects to the admission of that material asserting that it falls foul of section 131 of the Evidence Act 1995, which I incorporate herein:

   Exclusion of evidence of settlement negotiations

   (1) Evidence is not to be adduced of:

   (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

   (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

   (2) Subsection (1) does not apply if:

   (a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or

   (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

   (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or

   (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or

   (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

   (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

   (g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

   (h) the communication or document is relevant to determining liability for costs; or

   (i) making the communication, or preparing the document, affects a right of a person; or

   (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

   (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

8. Section 131(1)(b) makes clear that evidence is not to be adduced of any communication that is made, “...in connection with an attempt to negotiate a settlement of the dispute”.

9. The section does not apply however, if one of the circumstances in subsection (2) is in play. Clearly, the mother asserts that she gives her consent to the admission of the material. However, subsection (a) provides that the exclusion does not apply if “the persons” in dispute consent, implying a plurality of consent, rather than singular.

10. I am satisfied that certainly some portions of the material – in particular, that to which I am taken in the Respondent’s case, the penultimate paragraph of annexure M13 – would fall within one or several of the exceptions contained within section 131(2) in that the substance of the evidence has been disclosed with the express or implied consent of all parties. The mother seeks to rely upon it and the father seeks to advance his position in accordance with that paragraph.

11. More importantly, the substance of that particular portion of the evidence, if not disclosed, would not permit full disclosure of all evidence necessary to enable a proper understanding of the evidence that has already been adduced and would allow the potential for the evidence to be misleading.

12. On those bases, I am satisfied that a limited portion of the correspondence from the father’s prior lawyers should be before the Court. The balance of the correspondence, as it clearly relates to settlement negotiation, not only with respect to parenting, but property adjustment and financial issues generally, is excluded.

Agreed facts and chronology

1. There are precious few agreed facts between these parents. However, there are a number, and accordingly findings of fact can be made in accordance therewith. 

2. The parties agree that they met each other, it would seem on the mother’s evidence, through an internet dating site and in (omitted) 2010.

3. The parties agree that they commenced to cohabit sometime prior to their marriage, although the parties vary by some 10 to 11 months as to when that cohabitation occurred. The parties were married on (omitted) 2012.

4. The parties agree that their daughter, X, was born on (omitted) 2013.

5. The parties agree that they separated on 6 November 2014 when X was a little over ten months of age. She is now nearly 18 months of age.

6. During the relationship both parties agree that they were, at different times and in different positions, in paid employment. That has some relevance, particularly as regards the arrangements for this child’s care following birth. The father asserts stridently, a significant involvement in the child’s care on a day-to-day basis. The mother denies this and asserts a substantial primacy of care on her part. Little turns upon which party is more correct in their recollection of pre-separation care arrangements in light of the relief that is sought by each of the parties. Accordingly, I need not be troubled further. 

7. Clearly, the mother concedes that the father had some engagement in providing for the child’s day-to-day care, such as feeding, changing nappies and the like, although she makes clear, from her perspective, that involvement was minimal and largely in the presence of her and under her guidance. The exception to those arrangements relates to periods of time in July, August and September 2014 as well as a number of individual days when the mother concedes that the child was cared for by the father at least during daylight hours.

8. There is at least one occasion when the child was cared for by the father overnight with the mother absent. The mother is highly critical of the father’s attitude at the conclusion of that period suggesting that having had the child overnight he then at 8:30am the following morning arrived unannounced at the home at which she was staying with a friend to deliver the child into her care as he was not, from her perspective, coping well. The mother is critical that the father indicated at that time: “X did not stop crying.  I had to stay up and hold her all night”.

1. Two matters flow therefrom. Firstly, the mother’s material is clear that this is a child plagued with acute sleep issues. The mother seeks to assert that from May 2014 those issues arose through her distress being accentuated as a consequence of certain matters advised to her by the father or of which she became aware. Whether that is so or not cannot be determined today. However, clearly and by reference to the mother’s evidence, the child has had sleep issues since birth. Accordingly, the criticism that the father found that the child would not stop crying for him and that he had to hold her and stay awake with her all night is far from extraordinary.

2. Secondly, the fact that the father did stay up with her all night might be seen as something of a credit to him. The mother does not see it as so. Certainly one must take that reality into account in being harsh or judgmental of the father and in his seeking to be relieved of the child’s care the following morning. If the father had in fact, as he asserted, been up all night he would require some assistance at that point and naturally enough. In any event, the criticism is made. Whether it is harsh or otherwise is not dispositive of this issue.

3. During the period 7 to 11 July, 25 to 28 August, and 15 – 18 September 2014, the father had the care of the child during the day. In conceding this the mother asserts that she packed the child’s day bag, changed her and fed her in the morning, and pre-prepared her food, and organised a schedule to direct or assist the father whilst he was caring for the child. However, clearly the father did care for the child.

4. Since separation, as indicated, there has been no time between the child and the father, save one event that might come under that broad umbrella, being an attempt by the father to speak to the child by Skype on the child’s first birthday. That is the best that the parties have been able to arrange as regards the child’s interaction with the father.

5. The mother is critical of the father on that occasion, and the father is critical of the mother, both for different reasons. The mother, at paragraph 136(v) criticises the father with respect to that interaction with the child by Skype as follows:

   During the call my sister informed him that he should speak with X and not talk to me. He was emotional and cried in front of X. His cries appeared to be exaggerated and inappropriate having regard to the fact that he was spending time with X.

6. The assertion that he was “spending time” with X is perhaps an overstatement. The fact that the father was distressed may well have impacted upon the child also being distressed. However, the criticism that the father was “exaggerated and inappropriate” in being distressed might also be somewhat harsh in the circumstances, the father suggesting that he had an active engagement with the child prior to separation, only some four to five weeks earlier, and not having seen the child at all since separation and to that date. Whether that is so or not, again, is far from dispositive of the issue.

7. The father proposes, as indicated, that he have unsupervised time. 

8. The mother proposes that time occur on a strictly supervised basis through the (omitted) Contact Service. The mother advises the Court, through her enquiries or those of her Counsel, that the service might be available in three to four weeks on a full fee paying basis, whatever those fees may be. The mother proposes that the father would meet those fees whatever they are. 

9. The father resists the need for supervision.

10. An alternate proposal was raised with the parties by the Court being that perhaps some less formal means of supervision, if it might be so styled, occur so as to provide for the child seeing the father at the home of the paternal grandparents and in the presence of various paternal family members. That proposal is neither embraced nor opposed by the father. It is opposed by the mother who asserts that none of the three paternal family relatives, who have each sworn affidavits, would be appropriate or adequate supervisors.

Allegations of Risk

1. The major issue in the proceedings relates to suggested risk to the child of spending unsupervised time with the father or unsupervised time with the father other than at a supervised Contact Service. The suggested risks are numerous.

2. Fundamentally, the mother proposes that the child would be at risk as a consequence of certain matters related by the father to her in relation to his suggested involvement with or threats received from members of a “biker group”.

3. The evidence in that regard commences at paragraph 59 of the mother’s Affidavit wherein she indicates that in December 2011 – a date upon which the parties were at a restaurant and the father proposed to the mother and she accepting his proposal - the father had disclosed that he had significant debts and asserted that those debts arose:

   ...because I put up bail for a friend of mine that was in trouble, along with a few other individuals that also put up bail. My friend committed suicide when he was out on bail and as a result I lost the money. I have been slowly paying the credit debt which I have incurred because of the bail. The amount of the bail that I paid initially was much more than $80,000 and I have also had to pay a lot of interest on the credit cards.

4. That statement is curious on a number of levels, not the least of which is its ready acceptance by the mother, and whether in misericordia or otherwise her acceptance of the marriage proposal. It would also appear to be, although it is a matter for the father and his advisors to pursue rather than anything else, somewhat contrary to the provisions of the Bail Act 2013. It is difficult to comprehend how the father would forfeit bail put up to secure appearance of a person when the person is deceased. There would be no reasonable basis for the Office of State Revenue or any other agency to seek to have any claim upon that money in those circumstances. And if the money had, in fact, been paid, no doubt the parties through their process of disclosure in relation to financial proceedings will seek and/or obtain or produce documents relating to that issue. One would think an application would be made for its return.

5. However, the father is suggested to have continued:

   My friend who died owed monies to the (omitted) bikie gang. Some of these gang members have put a gun to my head in the carpark at (omitted) at (omitted) demanding that I pay them the outstanding debts owed by my friend who died. Luckily I have some friends in the (omitted) bikie gang. Once they got wind of what happened they intervened on a gang to gang basis, and the (omitted) bikie gang have been told to leave me alone.

6. The mother alleges that there was further conversation.  At paragraph 64, the mother returns to this issue. At that point the mother suggests that in May 2014:

   Mr Adami said words to the effect: “The bikies have come back.  They have been regularly extorting me for money from about September/October 2013 until recently.”

7. At paragraphs 80 and 81, the theme is again revisited. It is suggested on this occasion, which, by references to the earlier paragraphs proceeding, would appear to again be May 2014, that the father had indicated that he had already paid $150,000 to the bikies, and has a lot of credit card debt as a consequence.

8. The mother alleges that the father suggested to her that he had contemplated suicide to extricate himself from the circumstances, and refers to a further agreement between he and said bikers to pay further funds.

9. The conversation is suggested to conclude with the father having indicated that he had seen on the news that one of the men threatening him had recently been arrested and another one was dead.

10. The mother asserts that there is a significant risk to the child as a consequence of those assertions by the father.

11. The father, on one level, might be taken to infer that the statements made by him are simply not true. However, his instructions to his attorneys, as conveyed in correspondence 18 November 2014 (the portion of the conscious documents admitted into evidence), is in the following terms:

    Our instructions are that the “…gang related threats…” you referred to were result of the behaviour of a friend of our client who has since taken his own life. Further instructions to us are that there have been no gang-related threats since our client’s friend’s debts were paid, either with or without guns, and for more than two years. We also note that gang-related threats will not recur because the reason for the threats against our client was the behaviour of their now demised friend.

12. Clearly, on the evidence, the father has held something out to the mother in relation to these matters. He thus cannot deny having made any statement to the mother. Whether the father has manufactured a tissue of lies in relation to the alleged events – although that would cause its own concerns as to what might motivate him to do so – or whether there is some kernel of truth to the issues, clearly the father denies the more recent suggestions or allegations, which, on the mother’s material, are based purely upon suggested admissions by the father to her.

13. Those admissions are admissible but not necessarily as proof of the content of the representation or assertion. As an exception to the hearsay rule such prior representation would be admissible (see Divisions 2 and 3 of Part 3.2 of the Evidence Act 1995).

14. The risk alleged by the mother is, however, difficult to ascertain or, indeed, the basis upon which it exercises such force and authority in the mother’s mind as to make her concerned for the child’s care. The mother asserts that time would need to occur through the supervised contact centre to ameliorate both her concern and the real threat that the child might be harmed, it would seem more by being caught in a circumstance whereby harm is threatened to or perpetrated against the father than any searching out of the child for the purpose of causing distress to the father.

15. It is submitted that if time were to occur between the father and child, for example, at the home of the paternal grandparents, that the risk would not be ameliorated. The mother’s Counsel submits that if the child is seen with the father in public an approach, a threat or violence may occur. However, if the father is at and inside the home of his parents then how that is so or more so than being at a contact centre is unclear.

16. There is no suggestion, on the evidence, other than the father’s purported representations, which he puts in issue in relation to the more recent representations suggested in May 2014, that the child has been exposed to such matters. That is not the end of the issue, however.

17. I must be conscious that, for the child to be exposed to such behaviours, the pointing of guns and the threatening of people with them, might well be and, I accept, would be, a distressing and dangerous event for her. However, what is absent in the evidence is any cause or connection between the submission and the evidence as it stands. There is no suggestion that “bikers” have ever been to the home of the paternal grandparents or, for that matter, the home the parties previously shared.

18. It is asserted that there might be risk to the child if the father was driving the child and they chanced upon him. That, of course, can be ameliorated by the mother or some person other than the father attending to collection and return.

19. On balance and having regard to the evidence and its form and strength, I am not satisfied that there is anything which would warrant a finding or at least such caution as to suggest unacceptable risk from that factor.  Again, that is not the end of the issue as it is asserted that one should not take each of the suggested risk factors that the mother proposes individually but must view them cumulatively. I propose to both examine them individually and cumulatively.

20. In dealing with the matter and the above discussion, I am conscious of that which has been spoken of by the High Court of Australia and Full Court in relation to unacceptable risk. I incorporate herein my summary of the relevant paragraphs of Deacon & Castle [2013] FCCA 691. I do so to ensure consistency between my determinations:

    Unacceptable risk

    454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:

    “Relevant legal principles”

    The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M. 

    Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77

    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 C.L.R. 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.

    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.

    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” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

    455. And:

    456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:

    In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.   We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

    457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows: 

    One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration. 

    Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:

    “Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.

    In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:

    “It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.

    In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

    In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

    This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.

    In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party.  As Thomas J said at 670:

    “In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”

    Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.

    In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:

    “It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”

    If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question.  An example of this is Thomas J’s approach at 681-2:

    “I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”

    This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]

    458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said: 

    I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)

    459. 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:

    (a) The decisive issue is and always remains the best interests of that child.

    (b) All other issues are subservient.

    (c)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.

    (d) 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.

    (e) 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.

    (f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

    (g) The onus of proof in reaching that conclusion is the ordinary civil standard.

    (h) 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.

    and thereafter expanded some points contained in the summary”

    There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture (emphasis added).

1. By reference to the tests propounded within those authorities and specifically addressed and eruditely summarised by the late Fogarty J in extrajudicial writing, I am not satisfied that an unacceptable risk, such as would warrant formal supervision through a contact service, is adequately made out by the mother taking her evidence on its face and at its highest.

2. That is not to suggest that a number of risks might not arise from that which the father is suggested to have stated to the mother or as would appear, through the instruction the father has provided to his attorneys, and as recited in their letter in response to the mother’s then attorneys, to be other than concerning to the mother.

3. The father has clearly raised such matters as the “bikie” threats with the mother. However, the mother would not appear, whilst she and the father were still together, to have had in her mind such concern that the father might chance upon persons intending him harm such as to obviate against her leaving the child in his care, including on at least one occasion on an overnight basis. The mother has not articulated specifically what the risk is or how it arises or more readily arises by the father’s time occurring at and within the home of the paternal grandparents and with the father not involved in transporting the child.

4. The father has acknowledged and made admissions, even if limited, with respect to the balance of risk factors which the mother raises, principally relating to drug use. The evidence of the parties is murky in that regard.

5. The father clearly concedes, both in emails, conversations he has had with several of his family members, and in his own evidence that he has used of drugs in the past, illegal and illicit, although he describes them as recreational. That has certainly included marijuana and cocaine. The father asserts that the mother has an equally nefarious past history in relation to those drugs, including cocaine, and that they have used them together.

6. The mother concedes that allegation although she places it very much in a historical context, suggesting that there has been no drug use by her since she became aware of her pregnancy, and there is nothing on the evidence that would cause any necessity to pursue the issue further at this time. There is certainly nothing the father seeks by way of restraint or protection of the child. Accordingly, one can accept that he is content that the child is well cared for by the mother.

7. The father’s drug use has been the subject of a number of urine samples and testing thereof – at least four: two annexed to the Affidavit and two comprising Exhibit A2. The mother is not content that the father has demonstrated thereby any abstinence from drugs.  That is based, in part, upon representations made by the father, who would appear, if one accepts the mother’s evidence on its face, which I am prepared to do for present purposes, to be something of a “Billy Liar” character, prepared to create tales and advance them.  It is the mother’s evidence that he wants to do so.

8. It may be that there is something more to his assertions and that he is speaking the truth. But at the very least he is mischievous by raising matters with the mother, such as a suggested concession that he requires rehabilitation and treatment and therapy to overcome drug use, and then eschewing such assistance at all and denying the need. In those circumstances, it is no wonder that the mother is left troubled indeed, all the more troubled. However, the evidence that is available would suggest that the child has never been exposed to the father whilst using drugs or in a drug affected state, nor on the balance of probabilities that the child, particularly if time were not to occur on an overnight basis, would be exposed especially if time were occurring at the home of his parents with them present.

9. The father has provided a number of drug screens. That leads to the mother’s second criticism that she has made requests of the father, directly or through her attorneys, present or past, a number of requests of the father to undertake urine analysis within 24 hours. The mother sets out in some detail her concerns that the father has not done so or done so promptly or on each occasion that he has been asked to do so.

10. I am satisfied, however, that the father has undertaken urine analysis, that each of those tests has been clear of any detected substance and further, that there is some reassurance that the father offers through the Orders that he seeks to undertake random urine analysis at least twice per month, (although the mother would seek that testing be urine analysis or blood sample) on two working days’ notice.

11. I propose to make that Order, if nothing else, for forensic purpose. But also, somewhat importantly, the Order is made to attempt to provide some reassurance to the mother, who clearly is highly anxious as regards the concerns that are in her mind and at least in part, based on the father’s representations if not actions.

12. The mother also raises concerns as regards to the father’s behaviour during the relationship, which she asserts as having been coercive and controlling, and post-separation through making a number of suggestions or threats to the mother, including, on one occasion, sending a text message to her, which one would hope, on reflection, the father would understand the impact and importance of, let alone its inappropriateness, “If I can’t see my daughter, you can’t see my daughter”.

13. The mother invites the Court to infer that this would suggest a risk to the child through infanticide or otherwise. I do not accept that I can take it as such. Nor, in light of the fact that six months have passed without any repetition of such threats or comment, whichever it is, or any action upon, that it should be so.

14. The mother also raises concern, albeit based on her attempts to rationalise the father’s various and often conflicting assertions, that the father “may” suffer some underlying mental health disorder. That may be so. However, at this point I am not satisfied the evidence would be sufficient as to warrant the cost or invasion of ordering or commissioning evidence by reference to Part 15 of the Federal Circuit Court Rules.

15. The mother asserts, finally, that there is a risk to the child in that the father has not had much care of the child during the course of the relationship and is a person with a short temper. That must be viewed in the context of the evidence that I have described above, whereby the father has, for periods of full days at a time at least, had the child in his care with the mother’s agreement and connivance, and with the mother full and certain in the knowledge of:

    a)The father’s drug use or at least, past drug use. Clearly the father is suggested to have made a statement to the mother post-separation that would suggest that her knowledge at the time was less than complete;

    b)The father’s disclosures regarding biker groups and their propensity to seek him out and threaten him harm his last comment made, on the mother’s allegation and denied by the father, in May, 2014; and

    c)Her concerns and criticisms as to his short temper and the like.

16. Importantly, it is not suggested that anything has arisen from the above, other than on the overnight occasion when the child was delivered to the mother in a fashion she was not expecting at 8.30am the following morning, but, again, within the context I have described. If the father is taken on the face of his evidence to have been kept awake the entire night with the child (consistent with the mother’s evidence of the child’s sleep disturbance), it is far from unreasonable that he would deliver the child up to somebody else so that he could sleep. Indeed, it would be something of a credit to him that he attended to the child’s care overnight and did so without seeking out the mother during the night.

17. The mother suggests, accordingly, that if the father were to have unsupervised time and the child cried or caused a mess that he would have difficulty coping with it. There is nothing in the evidence whatsoever that supports that on a past, present, or prospective basis of concern.

18. On the basis of the application of the various authorities referred to above, as indicated, I am not satisfied, either taking the issues individually or cumulatively, that an unacceptable risk to the child through unsupervised time is made out by the mother.

19. Again, however, that is not the end of the issue. This child has now not seen her father for a significant period of her life. She is a little over one year of age and the father has not seen her since November, 2014. That is not to suggest that he has not been attempting to nor that the mother has not made proposals, albeit unpalatable and unacceptable to the father, that it be so. However, it is reality that this child must now begin a slow rebuilding of the relationship, which, on the father’s evidence, was abundantly commenced, and on the mother’s, slowly but cautiously commencing at the time of separation.

20. Further, the matters of concern that are raised in the mother’s evidence, whilst I have not been satisfied that I could find that they would be an unacceptable risk or, even absent the capacity to make a finding, sufficiently satisfied that they would represent such risk to the child that unsupervised time could not be countenanced, are matters of real and genuine concern, I accept at least in the mother’s mind and largely as a consequence of the statements, and at times, conflicting, vacillating statements made by the father, regarding matters of some seriousness.

21. It is suggested that none of the paternal family members, who are on oath, would be acceptable as supervisor or people to be present during the father’s time, nor would they give any reassurance to the mother by their presence as they have not indicated that they understand their obligations in supervising time, have not indicated the extent of their knowledge of the father’s concessions and admissions to them or his past drug use and gambling nor that they are sufficiently familiar with the child. 

22. In that regard, I am conscious that staff at a supervised contact centre have no familiarity with this child either. They are more strangers to the child than, for example, the paternal grandfather and aunt who have recently, at least in (omitted), 2014 at the child’s birthday, spent some little time with the child, visiting with the mother at the mother’s home. The evidence of each of the paternal family members would suggest that they have some real awareness of the father’s failings, both in relation to his marriage, past drug use and gambling.

23. The paternal family members are clear that they have the child’s best interests at heart and there is nothing suggested that would cause any doubt that they are concerned for the child’s wellbeing – perhaps not as concerned as the mother or on the same basis, but concerned, nonetheless.

24. I am satisfied, on balance, in facing the logistical difficulties that would arise from an Order for supervised time at the contact centre, myriad as they are, and having regard to the reassurance that can and should be given, at least to the Court, if not the mother, through time occurring between the father and the child at the home of the paternal grandparents, as restrictive as that may be and as unsustainable as it will become in the foreseeable future, that it is preferable.

25. That is not to suggest that if there was, in my mind, any concern that there was a serious unacceptable risk to the child of unsupervised time that any course would be taken other than time through a supervised contact service. 

Legislative pathway

1. In dealing with the matter I must follow the legislative pathway.

2. I must commence with section 60CA of the Family Law Act 1975 that reminds the Court that in all that is done the child’s best interest is the paramount consideration.

3. I must then have regard to the objects and principles in section 60B of the Act, which I incorporate herein:

   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).

4. The Court must ensure that the best interests of children are met by ensuring that both parents have a meaningful involvement in the child’s life to the maximum extent consistent with the child’s best interests.

5. I have not commenced with a discussion of risk and suggested unacceptable risk to suggest that it is the basis upon which this matter is determined. The matter is determined by reference to the child’s best interests as a whole of which risk plays a significant and important part, in some cases potentially to the point of overwhelming all other considerations.

6. However, in this case, the maximum extent consistent of involvement consistent with the child’s best interests must be assessed having regard to authority such as B & B (1993) FLC 92-357, and M & M [1988] HCA 68. I accept the genuineness of the concerns the mother holds. The mother suggests impact upon her and through her indirectly to the child of the father’s past behaviours and his statements to her potentially, as she asserts, since May 2014. On that basis I am satisfied that I must progress cautiously.

7. Caution must, however, be like Janus, two faced. I must have caution as to what might be a risk to the child, whether through direct exposure to risk, which I am not satisfied is made out to an appropriate level, or indirect risk through impact upon the mother. That must be balanced against the risk to the child of otherwise delaying, interfering with or terminating an otherwise beneficial relationship. Clearly the child has been cared for at times, brief or otherwise, by the father without incident, concern, complaint or criticism.

8. The very action which the mother asserts as her primary basis of concern, that if the child is in the father’s unsupervised care and he is sought out by “bikies” with guns, that the child may be harmed or exposed to psychologically injurious behaviours, has not come to pass.  That is not to suggest, as was submitted, that the Court would experiment with an arrangement to see harm happen in the future. It is a matter of balancing the evidence, which would support the probability that it might occur in the future.

9. The fact that it never has, notwithstanding that circumstances have existed whereby the very action which the mother is concerned about could have come to pass, is, in my mind, sufficient to balance the two. Accordingly, I am satisfied that a less formal provision of reassurance, both as to the child’s care and to the mother as to the child’s care, is appropriate, that occurring by the time spent between the child and the father occurring at the home of the paternal grandparents and with one or other of the paternal relatives who have sworn Affidavits being present with the father at all times.

10. I do not propose to frame it as an Order for supervision. It is an Order that they be present. There is real confidence from the evidence that is filed that the paternal grandparents and aunt have the child’s best interests at heart and would not hesitate in communicating with the mother if matters of concern arose. They have done so in the past.

11. I must be concerned to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence. Again, I am satisfied that this can best be achieved through the Orders that I have referred to.

12. There is no suggestion that the child has been directly abused nor exposed to abuse or family violence. Certainly the mother raises allegations that would fall within the broad section 4AB definition of family violence being behaviour of a coercive and controlling nature. They are matters that are of significance and must be weighed into the equation. However, there is no suggested impact upon the child other than indirectly through the mother’s reaction to the father. There is no reason for the parties to engage with each other as a consequence of the Orders that I will make and I am satisfied that is the best that can be done.

13. I am also conscious that the principles establish and create a number of rights for this young child. They are not absolute rights. They are subject to the caveat that they do not apply when they are found to be contrary to the child’s interests or, in fact, if they are internally inconsistent and in conflict.

14. Children have a right to know and be cared for by both parents, and to spend time on a regular basis not only with parents, but other people of significance.

15. Through the father’s time and particularly in the manner in which I propose to fashion Orders, the child will also have the opportunity to spend time with paternal family members, something which the mother has, at least on the child’s first birthday, encouraged and made so.  I am not satisfied that time on that basis would be contrary to the child’s best interests or obviate against it occurring. The child, I am satisfied, would, at the home of the paternal grandparents, be safe, the mother alerted to any concerns or difficulties that arise, and would not fall into the circumstances such as those that are illustratively described in support of the submission whereby the child is being transported by the father in a motor vehicle or otherwise and come upon by “bikies” by chance.

16. I propose to make Orders that will see travel for the child shared between one or other of the paternal relatives who will be present at all times and the mother, with one delivering or collecting the child, and the reverse at the conclusion. In that way I am satisfied the objects and principles can be best achieved.

17. I must then determine whether the presumption of equal shared parental responsibility applies and if it does apply determine whether it is rebutted.

18. I am not satisfied that I am in a position to make any finding that would cause the presumption to not apply nor to be rebutted. However, as interim proceedings, and as Parliament has sensibly included, I am satisfied that it would be inappropriate for the presumption to apply. If the allegations of either party are found proven it should not. Accordingly, I propose to make an Order pursuant to section 61C of the Act for each parent to have parental responsibility at such times as the child is in their care.

19. That being so, I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. Neither party seeks such an arrangement, although if the presumption applied, I would still be obliged to make such consideration. I will consider all time arrangements, at large, by reference to section 60CC of the Act to which I now turn.

1. I must commence with the primary considerations being:

   a)The benefit to the child of having a meaningful relationship with both parents; and

   b)The need to protect the child from physical or psychological harm.

2. As indicated, I am not satisfied that there is an unacceptable risk to the child in the father’s care. That does not mean that there are not risks. It is also not to suggest that some risks are acceptable and others not. The unacceptable risk test is far more nuanced than that. However, I am content that the child’s needs will be met by the father in combination with paternal relatives and that the child will be safe during the short period for which Orders are intended to operate.

3. As regards the benefit to the child of having a meaningful relationship with both parents, confined to the relationship between the child and the parents (see Burton & Churchin and Anor [2013] FamCAFC 180) I am conscious that the nomenclature of the section is somewhat irrelevant to a child of this age.

4. The child is not of an age whereby she would form a “relationship” but more a “bonding” or “attachment” with parents. I am satisfied that the child must, to be able to begin to form such a bonding or attachment with the father, have regular time with him -  time in which he can, in fact, parent. It is through parenting that the father’s meaningful relationship with the child will ultimately develop. He will not have that opportunity through a supervised contact service (and if he did would not for many months) and certainly has not had it through the complete absence of interaction.

5. I am not satisfied that the father spending day time only periods once a week at and in the presence of other paternal family members who would appear to have raised a number of children, be cognisant of the concerns in relation to their son from his own disclosures if nothing else, and able to ensure the child’s needs are met would otherwise create any difficulty in the child continuing to receive the benefit of her meaningful relationship – the language of the Act – but certainly bonding, attachment, and nurture and care from the mother. There is no evidence to suggest she would.

Additional concerns:

Views

1. The child is one year of age. She is not in a position to express views and has not done so. Even if it was suggested that some view could be inferred it would be far from dispositive.

Nature of the child’s relationship with each parent and other persons

1. The child clearly has a primary attachment and relationship with the mother. She has provided the majority, indeed, the preponderance of the child’s care since birth.

2. The father, prior to the separation of these parents, had an active involvement in the child’s care. Whether that is to the extent the father asserts, which the mother suggests is exaggerated, or to the extent that the mother suggests, which the father suggests is minimising, need not be determined. He was involved, had the care of the child for various periods in the mother’s absence and without any supervision or assistance, and there is no criticism or suggesting that the child came to grief or was other than well, adequately and properly cared for.

3. I am satisfied that Orders that allow the father to have the opportunity to parent the child on a weekly basis will permit it. The father seeks periods of time mid-week. I am not satisfied, at this point, that such Orders should be made.

4. That is not to suggest that more time than will be ordered would not be beneficial to the child. It is purely that the father’s work arrangements are such that the periods would occur from 5pm until 7pm on two afternoons per week commencing, in effect, at sunset. It is a period of the year whereby it is now dark and cold at sunset and the child, at one year of age, moving about between the parents in those circumstances, for the difficulty versus the benefit it would create is illusory. It would also heighten the mother’s fears or anxieties.

The extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making, spend time with the child or communicate with the child

1. Neither parent can be criticised.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. There is criticism of the father’s financial dealings. However, I am not satisfied that it would impact upon any determination with respect to the child’s best interests today, even if those matters were ultimately established.

Likely effect of change, including separation from either parent, or other child or person

1. I am satisfied there is a positive benefit to this child of resuming time and a relationship with the father and with broader extended paternal family.

2. I am not satisfied that there would be a detrimental effect of that time resuming, either directly to the child or indirectly through the mother’s reaction thereto.

The practical difficulty and expense

1. I incorporate therein section 65DAA subsection (5) of the Act:

   Reasonable practicality

   (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

2. The parents live relatively close to each other.

3. The parents’ capacity to implement the arrangement is not yet tested, although I have no concern whatsoever that they are abundantly able to make it occur.

4. The parents’ ability to communicate is problematic and made all the more difficulty by the distrust which is generated and, I accept, validly and genuinely in the case of the mother of the father, as regards various statements, contradictory statements, and various actions by the father.

5. They are matters for which the parties will receive some family counselling assistance, which may or may not benefit or aid those concerns. However, it will take a long-lasting intervention to produce lasting change.

Impact to the child

1. I am satisfied this is addressed above.

Capacity of each parent

1. There is no criticism made of the mother’s capacity to provide for this child on a day-to-day full-time basis. Indeed, the father concedes and seeks an Order that the child live with the mother.

2. I am not concerned that the father has incapacity to meet the child’s needs, physically, emotionally or intellectually for periods of day time only visits, as will be ordered. He has demonstrated, through his care provided to the child in the past, including both pre and post the revelation to the mother of the various matters which now cause her such concern regarding “bikies”.

Maturity, sex, lifestyle and background of the child

1. This is a tiny child, one year of age. She cannot meet any of her own needs. She is entirely dependent upon adults for her care, nurture and wellbeing, indeed, her safety.

2. The matters that are raised are such as to require that there be some reassurance to the mother. I am not satisfied, by reference to authorities such as Grange & Gardiner [2011] FMCAfam 1313, that this need extend to the time occurring through a supervised contact service, which will be limited, frugal, irregular, infrequent and far more restrictive of the father’s capacity to interact with and parent the child in preference to a less formal arrangement, whether it is called supervision, presence, monitoring or anything else - time occurring between the father and the child at the home of the paternal grandparents and with other family members present.

Aboriginality

1. Neither parent identifies as an Aboriginal or Torres Strait Islander. Thus, nor does the child.

The attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Each is highly critical of the other, perhaps the mother far more so than the father. However, I am not satisfied that those criticisms, even taken on their face and at their highest, would obviate against Orders of the kind I propose to make. 

Family violence

1. The evidence with respect to family violence is limited although important. It is certainly sufficient to warrant that the parties, at this point in time, not interact directly nor need to.

Family violence orders

1. There are none.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

1. I am satisfied that the best that can be done in this regard is to assist the parties with Orders under Part II and directing them to family counselling services that may be of assistance to them, provided they engage properly and appropriately with those services over a long term. Further, I am satisfied the best that can be done is to make Orders that are clear and certain and provide some degree of reassurance to the mother, that reassurance being limited, however, to the time occurring at and within the home of the paternal grandparents and one or other paternal family members being present at all times.

I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  14 May 2015