CHURCHILL & WILEMAN
[2014] FCCA 1047
•10 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHURCHILL & WILEMAN | [2014] FCCA 1047 |
| Catchwords: FAMILY LAW – Parenting – Whether interim orders should be made for a child aged two years and three months to spend time with the father – allegations by mother of serious family violence – child has spent only one hour with the father since he was eight months old – mother opposes time occurring – consideration of risk – whether preferable for child to spend time with the father in a supervised setting prior to family report interviews taking place. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA |
| Goode & Goode (2006) FLC93-286 |
| Applicant: | MR CHURCHILL |
| Respondent: | MS WILEMAN |
| File Number: | NCC 2771 of 2013 |
| Judgment of: | Judge Terry |
| Hearing date: | 9 April 2014 |
| Date of Last Submission: | 9 April 2014 |
| Delivered at: | Tamworth |
| Delivered on: | 10 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Davies |
| Solicitors for the Applicant: | Rice More Gibson |
| Solicitor Advocate for the Respondent: | Ms Rands |
| Solicitors for the Respondent: | Bridge Street Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Boyd |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The mother shall have sole parental responsibility for the child X born (omitted) 2011.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.
The Independent Children’s Lawyer will explore with the parties between now and the next adjourned date the possibility of obtaining an experts report.
The mother is to file and serve a brief Affidavit providing information about the child within 14 days of the date of these orders.
The Independent Children’s Lawyer has leave to issue more than five subpoenas.
This matter is adjourned to 9.30am on 15 May 2014 for further consideration.
The parties, the parties solicitor’s and the Independent Children’s Lawyer have liberty to appear by Genesys telephone link on 15 May 2014.
IT IS NOTED that the parties can take part in the Genesys telephone link by:
a.Dialling the free call number (omitted).
b.When prompted dial in the meeting room number (omitted) (entering the * key before and after the meeting room number).
c.Waiting on the line until the court dials in as “the moderator”.
d.Please ensure you have dialled in several minutes prior to the listing time.
IT IS NOTED that publication of this judgment under the pseudonym is Churchill & Wileman approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2771 of 2013
| MR CHURCHILL |
Applicant
And
| MS WILEMAN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me an interim application by the father in which he seeks orders that will allow him to commence spending time with his son X, who is two years and three months old.
The father proposed that time occur on three occasions each week for six weeks at the (omitted) Children's Contact Centre, then each Saturday and Sunday from 10.00am to 3.00pm for a further six weeks and then each alternate weekend from 5.00pm on Friday to 5.00pm on Sunday.
The mother proposed that the child spend no time with the father.
The Independent Children's Lawyer supported an order for supervised time to take place at the (omitted) Children's Contact Centre. The rationale for that is that the child would be safe from harm at the Contact Centre and Counsel for the Independent Children’s Lawyer submitted that it would be valuable for some time to occur before a family report was prepared.
The positions of the parties, put starkly, are that the mother alleges that the father engaged in coercive and controlling violence throughout their relationship, that X was exposed to the violence and has been affected by it, and that as well the father also engaged in some behaviour such as reckless and dangerous driving.
It was the mother’s position that X would not be safe with the father in an unsupervised setting and that the father was not a suitable person to play any role in X's life. She expressed the fear that X might be traumatised or re-traumatised if he spent time with the father in a supervised setting.
The father’s position was that the violent offences for which he was convicted in 2012 all occurred at or about the time of separation and that the mother was fabricating or exaggerating allegations that he otherwise behaved violently, coercively and aggressively during the relationship. The father alleged that the mother subjected him to emotional abuse throughout the relationship and that her agenda was to alienate his son from him.
The Evidence
I have read almost all the documents on the court file and there were many of them. The only thing I didn’t read in whole, and I told the father's counsel this before submissions started, was 69 pages of text messages attached to the father's second affidavit and I was referred to specific parts of those text messages during submissions.
The father filed two affidavits by himself, one by his current partner Ms K and one by his brother Mr B.
The mother filed two affidavits by herself and affidavits from Ms S a former girlfriend of the father's, a neighbour Ms C and her friends Ms R and Ms K.
Background
The mother and father had a short relationship which began when they were both about 30 or 31. It ran from August 2010 to August 2012 and X, their only child, was born in (omitted) 2011. X was eight months old when the parties separated.
During the relationship the father was a (occupation omitted) whose work often took him interstate. The mother worked from home as an (occupation omitted). The parties lived in the mother's home throughout the relationship.
The father committed a number of criminal offences in July and August 2012.
He assaulted the mother on 16 July 2012, she alleged by slamming her into a vehicle, putting his hands around her throat and threatening to kill her and flog her.
He also assaulted her on 25 August 2012. The mother alleged that she was grabbed by the hand and foot, dragged into a bedroom, flung across the room and then dragged into the hallway. She said that the father reached for her neck and said that he was going to put her in a wooden box and that she managed to break free of him and escape and call the police. The police arrived within 15 minutes and the father was arrested.
As a result of these incidents the father was charged with two counts of common assault, two counts of assault occasioning actual bodily harm, a number of counts of stalk and intimidate and one count of breaching a good behaviour bond.
On 31 December 2012 the father pleaded guilty to the charges. He was placed on a section 9 bond to be of good behaviour for 18 months and was required to accept the supervision of probation and parole.
A very concerning aspect of this matter is that in paragraphs 67 and 68 of the father’s 31 October 2013 affidavit he gave his version of what happened on 16 July 2012 and 25 August 2012.
The father said that all he did on 16 July 2012 was grab and push the mother when she tried to push past him and that his hand was near her shoulder and that she bit him.
The father said that on 25 August 2012 he snapped after the mother verbally abused him. He admitted grabbing her and dragging her into the bedroom and said that he did this because he did not want her to wake X with her yelling. He alleged that the mother struck him in the face a number of times with a closed fist and that he walked away.
What concerns me greatly about this evidence is that the father also attached to his affidavits a copy of the fact sheets which were handed up to the Court when he pleaded guilty, the facts to which he admitted, and those were not the facts set out in paragraphs 67 and 68 of his affidavit but facts that bear a very close resemblance to what the mother said happened during those incidents.
The fact that the father in his affidavit tried to minimise what occurred causes me great concern because the other thing which is in the fact sheets which formed the basis of the father’s guilty plea is that the mother sustained bruising as a result of the assaults on both occasions.
The parties separated after the second assault. X remained with the mother and has spent no time with the father since separation save for an hour under the supervision of the mother and a friend of hers on 5 October 2013.
The father filed an application for parenting orders on 5 November 2013 seeking orders which would permit him to spend time with X.
The mother was served on the evening on 15 November 2013 and she promptly filed a response setting out the order that she was seeking namely that the father spend no time with X.
The mother’s case
The mother’s case was that the incidents on 16 July 2012 and 25 August 2012 were not isolated incidents which occurred at a time of stress when the relationship was breaking down but were part of a pattern of behaviour which the father engaged in throughout the relationship.
The mother alleged the father had a serious anger management problem and would frequently and unpredictably become angry, sometimes when he had been drinking but sometimes when he was sober.
The mother said that she was regularly physically assaulted by the father, often on a weekly basis. At paragraph 19 of her 7 March 2014 affidavit she listed the ways in which she said she was assaulted which included being pushed, dragged by the hair or arms, choked, elbowed and smacked in the head.
The mother alleged that she suffered injuries such as bruising, grazes and swollen lips as a result of the assaults.
The mother alleged that X was often present when she was assaulted and that he observed some of the assaults and on one occasion cried hysterically while she was being assaulted.
The mother alleged that the father punched her car damaging it and that he also punched a wall.
She alleged that he frequently screamed abuse and threats at her, sometimes right in her face and once right in X’s face.
She alleged that he engaged in road rage and terrorised her on occasions by driving dangerously at a high speed while she was in the car.
She alleged that the father put X’s safety at risk on more than one occasion including an occasion when he let his temper get the better of him and would not stop the car and make sure that X’s child seat was secured.
She alleged that the father sometimes consumed alcohol to excess but said that his anger flared up when he was sober as well as when he was affected by alcohol.
The mother filed affidavits from friends who said that the mother had confided in them during the relationship about some of these events. She also filed an affidavit from a former partner of the fathers who alleged that she had been the victim of family violence perpetrated by the father including having her hand held in boiling water.
The mother’s case was that while it was true that X might be physically safe if the Court ordered that he spend supervised time with the father he might be re-traumatised as a result of what he had witnessed.
The mother was strongly of the view that the father would be a threat to X’s safety if X spent time with him outside of the contact centre. She expressed concern implicitly about the father’s refusal to acknowledge his coercive and controlling violence and refusal to acknowledge that his drinking and aggression and violence made him a poor role model for X. It was the mother’s case that there would be no demonstrable benefit to X in the father being part of his life.
Finally the mother denied that the father was at all helpful with X during the relationship.
The father’s case
The father said that apart from the occasions when he admittedly assaulted the mother on 16 July and 25 August 2012 he had not engaged in coercive and controlling violence or any violence at all during the relationship.
He said that he had not assaulted the mother and that her allegations were either highly exaggerated or fabricated.
He strongly denied causing the mother any injuries.
The father alleged that he was the victim of emotional abuse at the mother’s hands throughout the relationship. He said that she would taunt him about his inadequacies and frequently verbally abuse him. He alleged that she locked him out of the house on 12 occasions. He admitted that he very likely punched the car out of anger but said that he did so on an occasion when he was locked outside. He denied damaging the car.
The father alleged that after his family stood up for him the mother prevented his family spending any time with X.
The father alleged that he suffered extreme anxiety and stress as a result of the mother’s treatment of him and had to seek medical attention.
The father filed affidavits from his current partner Ms K who said that he was a gentle and non-violent person and from his brother Mr B who supported the father’s version of events and cast aspersions on the mother for her attitude to the father spending time with X.
The father went further than just denying that he had physically assaulted the mother other than the two days in July and August 2012. He alleged that the mother had assaulted him on a number of occasions during arguments. He said that he did not wish to outline each occasion as he believed the parties needed to move on.
The father alleged that most of the time X was asleep when the mother and father argued but he also said the following at paragraph 10 of his second affidavit which I referred to during submissions and which caused me concern:
With regard to X witnessing domestic violence alleged by Ms Wileman, Ms Wileman and I separated when X was only eight months old, and I don’t believe that X would recall anything that happened between Ms Wileman and I. I am very sure that the incidents that I have referred to in my affidavit have not affected X in a negative manner. Most of the time that Ms Wileman and I would argue, X would be asleep.
The father said that he loved his son, had helped to care for him during the relationship and simply wanted a relationship with him. It was effectively his case that the mother was stonewalling him spending time with X out of spite and perhaps as a continuation of her emotional abuse of him and that she should stop dwelling on events that were now in the past.
The pathway to be followed in interim hearings
I have to follow a pathway in order to determine an outcome and it is the pathway set out in Goode & Goode.[1]
[1] Goode & Goode (2006) FLC93-286
It requires me to identify the parties competing proposals and I have done that at the start of the decision.
Goode & Goode suggests that what the court should next do is to identify the matters in dispute and the matters not in dispute, because sometimes that provides a bit of a guide as to what should be done in an interim basis.
The problem in this case is that there are so many matters in dispute. I will list some of them and they are these:
a)the nature and extent of family violence in the relationship, who was responsible for it and whether it was separation instigated or coercive and controlling on the part of the father.
b)whether the father was violent to a previous partner and had a propensity to be violent in domestic relationships;
c)whether the father had a serious anger management problem which manifested itself in other ways such as dangerous driving or impatient refusal to meet X’s needs;
d)whether the mother had mental health issues;
e)whether the father had mental health issues;
f)whether the mother was intent on alienating X from the father or was being appropriately protective of him;
g)whether the father had attempted to minimise his culpability for family violence or the family violence which undoubtedly did occur and the implications of this for his time with X in the future;
h)whether the mother emotionally abused the father throughout the relationship;
i)the effect on the mother of making orders for supervised time if the mother’s allegation that she was a victim of sustained coercive and controlling family violence is true and the mother’s fears for her son soundly based.
I am sure there are other issues in dispute but those are nine that I have identified.
I cannot make findings about where the truth lies in respect of any of the matters in dispute and the father’s counsel submitted that I should be particularly cautious about how I treated the mother’s allegations about sustained violence when there had been no complaints to police except on the two occasions which resulted in the father being charged.
The father’s counsel asked me to have regard to the fact that there had been no complaints to doctors or to hospitals or to anyone else although “anyone else” is not quite correct.
Counsel for the Independent Children’s Lawyer said that I should have regard to the fact that the father had no convictions for offences of violence save for the ones arising out of the incidents on 16 July 2012 and 25 August 2012.
However the fact that alleged perpetrators have no convictions or that no complaints were made by the alleged victim to persons in authority during the relationship does not necessarily mean that no violence occurred.
There are many reasons why victims of family violence do not to tell other people at the time about what is happening: shame that they have found themselves in this position; a misplaced belief that somehow they are responsible for what is happening; a willingness to give someone who on some occasions can be charming and kind a second chance; a desire not to lose a relationship; or fear about what might happen if they go to the police and make a complaint.
All of these things can operate on people who are victims of family violence and can mean that they do not make complaints, that they actually tell lies about why they have bruising, that they do not tell anyone until things get so bad that the police intervene and then sometimes things change.
Victims of family violence sometimes go back again and again into a violent relationship even though by doing so they are damaging themselves and their children.
So the fact that no complaints were made in this case prior to July 2012 to police or hospitals does not tell me anything one way or the other. It might mean that nothing occurred but it might just mean that a whole lot of other things were operating for the mother.
I accept that people do sometimes exaggerate or fabricate allegations of violence but I have to make some assessment of probabilities and there are a number of things in this case which incline me to the view that I should treat the allegations seriously and act cautiously in the light of the allegations even though I cannot make findings at the moment about what occurred.
First, the mother did make some complaints at the time to friends about what was happening if the evidence of her witnesses can be believed. It has not tested but the witnesses are on affidavit about it so the evidence is sitting there.
Second, the father undoubtedly perpetrated violence on 16 July 2012 and 25 August 2012 and if the information in the fact sheets is correct and in my view I am entitled to provisionally consider that it is, serious acts of violence were committed on those occasions.
Third, the content of some of the text messages sent by the father, the threats and the language to the mother in those, lends some colour of credibility to the mother’s allegations.
Fourth, the mother’s allegations were detailed, they were not just general allegations such as “I was subjected to family violence” but were detailed and specific.
These things mean that I cannot lightly dismiss the mother’s allegations that there was serious violence on other occasions besides the occasions of 16 July and 25 August 2012.
I cannot make findings that the mother is telling me the truth but I cannot lightly dismiss her allegations and say that they are likely to be untrue, and often in those circumstances the court has to be very conservative in what it does until it can conduct a proper inquiry into the matter.
There are some matters not in dispute although not many.
One is that it does not seem to be in dispute that the mother was X’s primary carer during the relationship.
Another matter not in dispute is that the father committed two serious acts of family violence against the mother in July and August 2012.
The third undisputed matter is that X has spent only one hour with the father since he was eight months old.
X’s best interests
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and the matters in s.60CC(2) and (3) of the Family Law Act are the matters to which I must have regard in order to determine X’s best interests.
The primary considerations in s.60CC(2) 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.
S.60CC(2A) which was introduced into the Family Law Act in June 2012 in an effort to make sure that the court treated family violence very seriously indeed says that I have to prioritise the need to protect the child over the need for him to have a meaningful relationship with a parent.
The Independent Children’s Lawyer’s position and the father’s was that I should at least order time at the contact centre because it would create a foundation for X to have a relationship with his father. It would mean that something was there in the future to build on.
From the Independent Children’s Lawyer’s perspective the advantage would also be some evidence that could be used by a family consultant and it was submitted that X would be at no risk of harm at a contact centre.
The Independent Children’s Lawyer did not support unsupervised time outside the contact centre and I could not consider ordering that in the light of the serious allegations of violence and dangerous behaviour by the father until those allegations are tested and findings made about them.
It is true that if X spent time with the father at a contact centre he would not be at risk of physical harm. The contact centre would not allow that to happen. Whether he would be at risk of psychological harm as a result of being re-traumatised is not something that comes within s.60CC(2)(b) but it is an issue I will consider later on.
I must also have regard to the additional considerations in s.60CC (3) and a lot of them I either cannot make any findings about or they are not relevant.
X is too young to have a view, obviously.
The child support issue, although it is sitting there as an underlying issue, does not assist me to determine on an interim basis the issue about whether and if so in what circumstances X should spend time with the father.
The father cannot be accused of not wanting to be part of X’s life; he has been making an effort to be able to spend some time with X since early 2013. This is not a case where the father has stepped out of X’s life and now wants to step back in.
I must consider the nature of X’s relationship with each of his parents and while I have a mass of evidence in this case, an absolute mass of it, there is hardly anything in there about X himself. Both parties have concentrated on the allegations of violence and behaviour. Both parties have told me almost nothing about X.
I assume that X has a good relationship with the mother because the father does not suggest otherwise and the mother has been his primary carer and the father does no seek to disturb that, but I have not been told much about that relationship and at some stage I will have to be.
X does not have a relationship with his father at the moment because he has not seen him since he was eight months old.
I must consider the likely effect of any change in X’s circumstances.
Time with the father at a contact centre would be a change for X because he is not seeing his father at all at the moment.
The father’s counsel pressed me to be satisfied that it would be a positive change because it would set a foundation for X to have a relationship with the father in the longer term.
Counsel for the Independent Children’s Lawyer submitted that the change would not be harmful for X because he would be protected from any physical harm at the contact centre and it would be a useful thing to happen.
The mother on the other hand said that the change would be harmful for X because it may mean that he was re-traumatised.
I will return to this issue of the likely effect of change after I make some findings about the remaining s.60CC (3) matters.
I am not going to go into practical difficulty and expense, it is not relevant.
The next relevant s.60CC (3) matter is the capacity of each of the parents to provide for the needs of the child including his emotional and intellectual needs.
Although it is not relevant to the narrow issue I have to decide today I do want to put on record that I found the father’s position somewhat curious in one respect; he alleged in his affidavit that the mother was physically violent and emotionally abusive to him throughout the relationship and yet he expressed no concerns about X remaining in her care. That is a bit curious but will play itself out at some other time.
I was not told much about X at all in the affidavits as I have mentioned but there was no evidence that he was not being properly cared for by the mother at the moment. The father alleged in effect that the mother was emotionally abusing X by not allowing him to have a relationship with the father and the paternal family but he did not allege any difficulties in the day-to-day care of the child.
I am therefore provisionally satisfied that the mother, subject to the issue of whether the child is being emotionally abused by the mother as a result of her attitude to him spending time with the father, is doing an appropriate job of caring for X.
One thing I do not know in this case is what the effect on the mother would be of me making an order for time at the contact centre if the mother’s allegations about the violence that she suffered and her beliefs about the father are true. I do not know what the effect on the mother would be if I made that order in those circumstances. It will be a trial issue.
As far as the father’s parenting capacity is concerned I cannot make any findings about it. If he has anger management problems and a propensity for violence as the mother alleged then he poses a danger to the child in an unsupervised setting. There was little evidence about his parenting capacity.
As for the child’s maturity, sex and background, he is only two and is totally unable to protect himself and highly dependent on his parents to protect him.
I must consider the issue of family violence.
I cannot make any findings about whether the allegations the mother makes about the father are true but as I have already indicated they are extremely serious. If they are true then the father has caused harm to his child. A parent harms a child when they harm the other parent. If the allegations are true then the father’s denial of his violence and his attempt to blame the mother for his predicament means that there may be no likelihood of him being able to change in the future.
If they are true he is an exceptionally poor role model for the child and there are serious implications for a child in being exposed to a perpetrator of family violence. They can grow up to be perpetrators of family violence themselves. They can become depressed. They can be aggressive to the other children at kindergarten. It is an extremely serious situation.
But of course I cannot make any findings today about whether the allegations are true or not, that will be a trial issue.
I also cannot make any findings about whether the father’s allegations that he was repeatedly assaulted by the mother are true and I cannot make any findings about the claim of emotional abuse.
I have to consider any family violence orders and there was certainly an order in place.
I am not going to try and make any findings about the parents’ attitude to the child and the responsibilities of parenthood. I would be going over old ground if I did.
As for any other relevant matter, I note here again that Counsel for the Independent Children’s Lawyer submitted that I should order that some time occur because it would be better if the child saw the father before the family report interviews.
In some circumstances that might be a valid approach but I am not necessarily convinced that it would be a valid approach in this case because in my view the problem of whether or not the child should spend time with the father is a complex one.
The child might be protected from physical harm at the contact centre but I cannot make findings about the psychological effect on the child of spending time with the father if the mother’s allegations are true.
I cannot make findings about the effect on the mother of ordering that this time occur.
I am not necessarily convinced that it is critically important for the purposes of having a valuable family report that some time occur before the report is prepared.
The other relevant matter is that the effect of making the order the mother seeks on a final basis is the loss to the child of having a father in his life and that is a serious loss to a child. It is a serious loss to any child because children benefit from having two parents. They benefit from having contact with the other parent to whom they are genetically connected, in this case the father. Children can suffer various effects later in their life if they are prevented from having a relationship with a father.
That is something I will have to take into account on a final basis, but it is not necessarily something that I need to be concerned about at an interim stage and I will explain in a moment why I have come to that view.
Parental Responsibility
The father has been convicted of serious offences of violence and the presumption in s.61DA of the Family Law Act does not apply.
I can in those circumstances simply refuse to deal with the issue of parental responsibility and make an order that the position in the legislation remains; that is, that each parent has parental responsibility, but it is not equal shared, or I can make an order for sole parental responsibility.
In this particular case the father has been convicted of serious offences of violence against the mother and it is appropriate on an interim basis, to make an order that the mother have sole parental responsibility for the child.
That can be revisited and challenged at a final hearing but I consider that is the only order open to me on an interim basis given the father’s convictions for the violent offences.
Conclusion
I will say right at the outset that I am not prepared to order that the father spend any supervised time with his child and I will explain why I am of that view.
There are serious allegations of family violence in this case. They are detailed. There is some supporting evidence for them. I cannot lightly disregard them.
I accept that the child will be physically safe if he sees the father at the contact centre but I cannot make findings about the effect of making that order on the mother or the psychological effect on the child of making that order and the issue of whether the child should be spending time with the father is complex.
If it should turn out that the allegations the mother is making are true and that there is no prospect of the father changing this might be a case where a no contact order is made and then there will be little future benefit to the child in me having made an order now for him to spend time with the father.
I am not prepared to make an order for supervised time because I do not think it is as simple as saying well, the child will be physically safe.
I do not consider that the family report will be seriously compromised by the fact that no time has occurred. The issue in the case in the family violence and that is going to have to be determined before we go anywhere in the matter and that is the issue the family report is going to have to concentrate on.
It is the father’s case that the mother is wilfully attempting to alienate the child from him, acting spitefully if you like. That is the father’s case and it is a concern because there are parents who behave in that way.
When the court has before it the possibility that a parent is behaving in this way the court has to seriously consider whether it would be better to act as quickly as possible to get some time happening so that the evil of the other parent’s attitude does not operate on the child and make the child unwilling to spend time with the parent and entrench the alienation. I have to be concerned about that but I would be more concerned about it if I had a child who was much older than X.
If I had a child who was 8 or 10 or 12 there would be a very serious risk that the mother’s attitude to the father, if it was an alienation attitude, would operate on the child if the child was not permitted to see the father, that an absence of the child having an opportunity to see the father might mean that the alienation became entrenched. I would have to give serious consideration in that case to whether I should on balance order that some time occur, just to make sure that that attitude did not become entrenched and so the position could be retrieved if after a hearing it was determined that the problem was not violence but alienation.
In this particular case however I have a child who is two years and three months old. A final hearing can take place within a year and X will still then only be a little over three.
At X’s age the mother’s attitude to the father, even if it is a bad attitude, a spiteful attitude, an alienating attitude, is not going to operate on X so that at the age of three years and three months, instead of two years and three months, he is going to refuse to see the father.
If it should turn out as a result of a hearing that the mother is wrong, that she is exaggerating, she is fabricating, she is trying to alienate the child then even if I do not order time today the position can be retrieved after the hearing ends.
If I make an order today though that the child spends time with the father I cannot be certain about the effects of that on the child. I may not be able to undo those effects so weighing and balancing everything in my view it is not appropriate at this stage, until there is a full hearing and everything is tested, to make an order that X spend time with the father.
I am quite prepared to order a family report but I consider that this is a case where I would benefit from having an expert’s report and I do not know if anyone is in a position to pay for it.
I would urge the parties to consider the possibility of putting some money down and paying for an expert to prepare a report in this matter. There are some serious and difficult and complex issues in the matter.
I certify that the preceding thirty five (135) paragraphs are a true copy of the reasons for judgment of Judge Terry.
Associate: Candice Bell
Date: 26 May 2014
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