Antuma and Orlov
[2017] FCCA 1564
•11 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANTUMA & ORLOV | [2017] FCCA 1564 |
| Catchwords: FAMILY LAW – Interim parenting – where contested allegations of family violence. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Eaby & Speelman (2015) FLC 93-654 Salah & Salah [2016] FamCAFC 100 SS & AH [2010] FamCAFC 13 |
| Applicant: | MS ANTUMA |
| Respondent: | MR ORLOV |
| File Number: | WOC 1283 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 20 June 2017 |
| Date of Last Submission: | 7 August 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 11 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Stacks Heard McEwan |
| Solicitors for the Respondent: | Acorn Lawyers |
| Solicitors for the Independent Children's Lawyer: | Johnson Horsley Solicitors |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Mother to have sole parental responsibility for the child [X] born (omitted) 2015 (the child).
The child live with the Mother.
Each party must:
(a)contact the C.W.(omitted contact centre) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child [X] born (omitted) 2015 spend with the Respondent MR ORLOV (the Respondent);
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.
The time the child spends with the Respondent under Order 3 is to be supervised by the Contact Centre and the Respondent must pay the reasonable fees for the supervision on each occasion of supervision.
Pending a place becoming available at (omitted contact centre), the child spend time with the Father for 2 hours each alternate week using the services of an independent supervised contact provider approved by the Independent Children’s Lawyer and at the expense of the Father.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Antuma & Orlov is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1283 of 2016
| MS ANTUMA |
Applicant
And
| MR ORLOV |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Interim Orders that the Court has made in relation to a child, [X], who was born on (omitted) 2015 and who is now two years old. The issue before the Court is whether [X] should be spending time with his Father and, if so, on what terms.
The Mother makes very serious allegations about the Father’s alleged family violence, which he firmly denies.
Background
[X]'s Mother is the Applicant in this case. She is 37 years old and describes herself as undertaking home duties. Her residential address has been suppressed. [X]'s Father is the Respondent. He is 44 years old and he lives in a (omitted) suburb of Sydney. He describes himself as being unemployed. [X]’s parents commenced a relationship in (omitted) 2011 and separated in November 2016. The impression created from the totality of the evidence before the Court is that their relationship was a tumultuous one. She alleges that he was involved in various criminal activities, as well as perpetrated on her very serious physical violence, which could be described as coercive and controlling. The Father denies this and alleges that the Mother has some mental health issues and has attempted self-harm during their relationship. These allegations are merely the tip of the iceberg so far as the parents are concerned. As foreshadowed above, the Father denies the very serious allegations made by the Mother, and the Mother denies that she has mental health issues as alleged by the Father.
At about the time of separation, the Father was arrested by the Police and charged for possession of ammunition. He was convicted for this and given a non-custodial sentence. He alleges that the Mother placed the boxes of ammunition in the Father’s motor vehicle before they were found in his possession. She alleges that there was a violent incident at the time of separation, and indeed, it was this that precipitated the separation. He denies that the incident was as the Mother alleges, but concedes that he consented, on a without admissions basis, to a two year final AVO against him.
The Mother commenced proceedings on an urgent basis on 21 December 2016, fearful of the consequences of the Father being released from custody at a time when he was bail-refused. Indeed, on 21 December 2016, the Court took the somewhat unusual and, indeed, extreme step of making Orders in Chambers on an ex parte basis, giving the Mother sole parental responsibility, as well as an Order that [X] live with her and spend no time with the Father. The seriousness of the Mother’s allegations, and the particularity in which they were presented in her affidavit, warranted this course.
When the matter came before me on 29 March 2017, the Respondent Father was directed to file his material, and the parties ordered to undertake an intake for (omitted contact service).
The matter came before the Court for Interim hearing on 20 June 2017. By this time, the Father had not seen [X] for almost seven months. Submissions were made by the solicitors representing the parents, and Mr Horsley, the Independent Children’s Lawyer. Documents that had been subpoenaed were tendered in evidence. Judgment was reserved, but on the basis that the Independent Children’s Lawyer would cause to be issued a subpoena to produce documents to Dr R of Wollongong, who, it transpired from submissions, was the Mother’s treating psychologist. The legal representatives were granted leave to inspect the documents on production, and leave granted to relist should any party wish to make further submissions about the content of the documents produced by Dr R. The matter came before the Court again on 7 August 2017. Dr R report came into evidence. Final submissions were made.
The competing proposals
The Mother’s proposal was that the existing Interim ex parte Orders continue. In effect, her proposal was that, even on an Interim basis, there should be no contact or communication between [X] and his Father. It was an inherent part of her case that she would be seeking no contact or communication on a final basis and this was a case where such an outcome was likely.
The Father’s proposal was that [X] continue to live with his Mother. Until he commences school, at least three years hence, [X] would spend time with his Father each Wednesday and Saturday from 10am to 2pm, and after a period of three weeks of that contact, from 9am to 3pm each Wednesday and Saturday, then progressing again, after three weeks, to 9am to 4pm each Wednesday and Saturday. The Father proposed that his time with [X] initially be supervised by one of two named adults.
The Independent Children’s Lawyer found it hard to make a clear recommendation, given the acknowledged complexity of the case, and the surrounding uncertainty. If the Court was concerned about the risk of re-traumatising [X] as a result of spending time with his Father, or if the Court was concerned that the Mother would not psychologically or emotionally cope with the idea of [X] spending time with his Father, the Independent Children’s Lawyer suggested that no contact or communication may be the least of the worst options.
The Court acknowledges that the complexity of the case was further exacerbated by the Court specifically introducing as a possible option for it that [X] spend supervised time with his Father at a supervised contact centre. The Mother remained opposed to this. The Father adopted a pragmatic view that he would, in effect, take what was ordered. The Independent Children’s Lawyer quite correctly submitted that, whilst supervised contact was an option, the Court would need to be satisfied that it would not re-traumatise both [X] and his Mother and thus it should not be done on an Interim basis if there was the risk that an Order for final no-contact or communication would be made.
This is clearly a complex case. Deciding the case is in the nature of a risk assessment and management exercise where the outcome will be less than optimal and probably represent the least of the worst alternatives, rather than some idealised notion of what is in the best interests of [X]. As the Independent Children’s Lawyer submitted, the polarised positions of the parents on the facts is of concern. The Mother makes very serious allegations about family violence, which the Father denies in their entirety. The limited capacity of the Court to make findings of fact is a structural obstacle in the decision-making process. Nonetheless, it is important to recall that what the Court is doing is managing risk, an exercise that can be undertaken without necessarily making findings about matters such as family violence.
The material before the Court
The Mother relied on the following material for her case:
a)Initiating Application filed 21 December 2016;
b)Affidavit of Ms J filed 21 December 2016;
c)Affidavit – Non-filing of Family Dispute Resolution Certificate filed 21 December 2016;
d)Notice of Risk filed 21 December 2016;
The Father relied on the following material for his case:
a)Response filed 30 May 2017;
b)Notice of Risk filed 30 May 2017; and
c)Affidavit of Mr Orlov filed 30 May 2017 and 26 July 2017.
The following documents came into evidence as exhibits of the Court:
| Exhibit No. | Description of Exhibit/MFI |
| ICL1 | Documents produced by NSW Police |
| ICL2 | Documents produced by Health Care Imagery |
| ICL3 | Documents produced by (omitted) Medical Centre |
| ICL4 | Documents produced by FACS |
| ICL5 | Documents from Dr R |
The applicable law
The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) 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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
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.
(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.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine 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).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 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;
(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;
(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) 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;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
In the Full Court’s recent decision in Salah & Salah [2016] FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made a number of important points, including:
a)Section 60CC requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. This is a requirement that does not really depend on there being findings of family violence, but focuses on risk, which can exist independently of disputed allegations;
b)Section 61DA is in mandatory terms: “the Court must apply a presumption” that is in the best interests of a child for there to be an order for equal shared parental responsibility. Section 61DA(3) states that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order. Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. It requires a cautious approach, especially in the context of s.60CG.
c)Paragraph [68] in Goode, where the Full Court warns against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: Eaby & Speelman (2015) FLC 93-654.
d)An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations.
e)There is no requirement for corroboration or objective support for an allegation of family violence. Family violence often takes place in private, in circumstances where no corroboration is available.
f)A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.
g)It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibility applies.
Meaningful relationship
The Mother alleges that the Father does not have a meaningful relationship with [X], not just because he has not seen [X] for seven months, but also because of his conduct towards [X] which, she asserts, included physical and verbal abuse. The Father denies these allegations of abuse and submits that there is a benefit to [X] of a meaningful relationship with his Father. He contends that, before separation, he had a close, loving, and meaningful relationship with his son.
The developmental reality that the Court is confronted with in this case is that [X] is only two years old and has not spent time or communicated with his Father for almost a quarter of his life. That must, inevitably, have some impact on the nature and quality of his relationship with his Father. In a prospective sense, and subject to other matters to be considered below, there is benefit to him in having a meaningful relationship with his Father.
Protecting [X] from harm
The Mother makes very detailed, extensive, allegations of family violence and abuse throughout the parental relationship. The Father’s denials of these allegations are noticeable for their superficiality, indeed glibness. One would have thought that the Father would provide more fulsome responses to the very detailed allegations that the Mother makes. Even if the Father’s case were correct, and the incidents simply did not occur, the Court would have been assisted by his version of whether anything occurred – in other words, whether the Father is contending that the incidents did not occur at all, or whether they did not occur as alleged by the Mother. Experience indicates that the latter is more often the case, than the former.
It is interesting to note that the Father proposes that his initial time with [X] be supervised. In his submissions, the Father’s solicitor explained that the Father, in fact, did not believe that supervised time was warranted, but was adopting a pragmatic approach based on what he expected the Court would be concerned about. What did not become apparent in submissions, however, was whether the supervision was advanced as a means of addressing the developmental issues involved in a two year old child resuming contact with a father he has not seen in over six months, or whether the supervision was advanced as a protective reassurance, given the seriousness of the allegations made against him.
The Father’s main argument against the family violence allegations was twofold. Firstly, he contends that there is simply no corroboration of the Mother’s allegations of family violence before the date of separation. Secondly, he contends, the extensive records of text messages between the Mother and himself over many years is, he submits, plainly inconsistent with the allegations the Mother makes.
There is, indeed, limited corroboration of the Mother’s allegations of family violence before the date of separation. This is, at one level, surprising given the very serious allegations that the Mother makes of extreme physical and psychological abuse, to both the Mother and the child. Of course, judicial notice is often taken of the reality that the victims of family violence often do not report that behaviour for many reasons that might include fear, embarrassment, isolation, distrust of authorities, concerns about the consequences, absence of alternatives, etcetera. Thus, the absence of reporting of historical incidents, and in this case the absence of corroboration, is not necessarily definitive or conclusive.
As for the records of wholly unexceptional, uneventful, text message communication between the parents, once again that is not necessarily inconsistent with the Mother’s allegations. It is so often the case that the victims of violence become experts in compartmentalising the dysfunctional aspects of a relationship from the functional ones.
The Court is concerned about risk. There are some objective factors pointing towards risk. Part of the reason for the Mother causing the police to take out the AVO against the Father is the concern about him possessing ammunition. The fact of the AVO, and the fact of the charge and conviction of possessing ammunition, is before the Court. These are matters that tip the balance in favour of the Court assessing the risk of violence as being a real one that must be managed through, at the very least, supervision pending final orders.
The Father makes allegations about the Mother’s mental health. There appear to be two possible contexts for raising this. In theory, it could be to suggest that the child is at risk of harm in the Mother’s care, but this is plainly inconsistent with the Father’s position in these proceedings, conceding that the child should live with her. The second possible dimension to his allegation is that the Mother’s mental health issues are pertinent to assessing the weight to be given to her evidence about family violence. In other words, her allegations should not be believed because of the mental health issues that she suffers.
The documents produced on subpoena suggest that both parents have struggled with mental health issues, including depression and anxiety, over the years. For the Father, this has included post-traumatic stress disorder. The Mother did appear to suffer a severe mental health episode when her previous partner died, but that was before the relationship with the Father in this case. The impression created from looking at the medical records is that the mental health crisis she experienced was reactive to her partner’s death.
From the Mother’s perspective, however, her mental health is relevant not just because it is corroborative of her family violence allegations, but also to the issue of whether [X] should have any time with his Father, let alone supervised time
The documents produced by Dr R, the Mother’s treating psychologist, reassures the Court in this way. Firstly, there appears no current ongoing mental health issues that either affects her capacity to parent [X] or which could, somehow, cloud her allegations about past family violence. Secondly, the Mother’s history of family violence given to her psychologist is broadly consistent with the evidence the Mother gives to the Court.
The other important role of Dr R records is to assist the Court to understand whether there is a risk that the Mother and/or [X] would be re-traumatised by an order such as supervised contact at a centre? There is nothing in these records to suggest this is the case.
Other considerations
This case will principally be decided by reference to risk of harm considerations. The additional considerations set out in section 60CC are still important, though not necessarily determinative in their own right.
Whatever the nature of the parents’ past relationship was, the Court is able to form a strong impression that, for the time being, the Mother is experiencing a genuine fear of the Father, and can reasonably be expected to find any interaction or communication with him to be both intimidating and confronting.
For [X] to start resuming time with his Father, a minimal requirement would be to deal with the developmental issues inherent in a very young child who has not spent time with his Father for at least six months, resuming a relationship with him. It is curious that the Father would suggest supervision by two people who give no evidence to the Court. In his affidavit, he refers to [X] having a great relationship with the paternal grandparents, and his sister-in-law, Ms M, but the Court would have been assisted by their own evidence. Given the seriousness of the allegations made against the Father, the AVO, the conviction on the ammunition charges, as well as concerns about both parents’ mental health, the Court is strongly inclined to suggest that if [X] is to have any time with his Father, it should be at a supervised contact centre. In this way, [X]’s time with his Father can be closely monitored, and issues about parental capacity and risk managed.
But is supervised contact at a centre adequately protective of both the Mother and [X]’s emotional and psychological wellbeing? The Court believes that it would be so protective. In the usual manner, the parents would not come into contact with each other, and [X]’s time with his Father would be constantly managed.
An issue arose as to the Father’s drug use, and in particular a possession of cocaine allegation in January 2015. The evidence is unreliable and the Court places no weight on it.
Conclusions
The Court believes that there is a risk of exposure to violence, together with developmental issues, that point convincingly to the Father’s time with [X] being supervised by a supervised Contact Centre or by a professional paid supervisor. There is no evidence before the Court to suggest that either the Mother or [X] would not cope with such an arrangement. The Order for sole parental responsibility will stand.
The future conduct of this case will be discussed with the parties’ lawyers and the Independent Children’s Lawyer at the time these orders are made and Reasons published.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 11 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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