Correa & Maestri
[2022] FedCFamC2F 609
•22 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Correa & Maestri [2022] FedCFamC2F 609
File number(s): ADC 3300 of 2018 Judgment of: JUDGE BROWN Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – parenting – interim time spending arrangements – child aged six years of age – high conflict between parents – allegations of child abuse – father strongly denies any allegations – whether time spending arrangements should be suspended to await police investigation – assessment of risk – best interests – matters to be considered Legislation: Family Law Act 1975 (Cth) ss 60CC, 68LA Cases cited: Slater& Light [2013] FamCAFC 4
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 81 Date of hearing: 22 April 2022 Place: Adelaide Counsel for the Applicant: Ms Cocks Solicitor for the Applicant: D’Angelo Lawyers Solicitor for the Respondent: Clarke Hemmerling Lawyers ORDERS
ADC 3300 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CORREA
Applicant
AND: MS MAESTRI
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.The mother deliver the child to the father at 3.00pm on 28 April 2022 and thereafter the time spending arrangements pursuant to the orders of 28 August 2020 do continue.
2.The parties are restrained from:
(a)abusing or denigrating the other in the presence or hearing of the child or permitting any other person to do so;
(b)discussing these proceedings or any allegations with the child;
(c)physically disciplining the child.
3.Further consideration of the matter is adjourned to 5 May 2022 at 9.30am for directions via MS Teams to list a Trial date NOTING the parties will be forwarded a link for the hearing by the close of business on the day prior or can dial in on (02) 9161 1229 and use passcode 574 862 731#
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Correa & Maestri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read. Some headings have been inserted to assist in this regard.
This afternoon, I am delivering some ex tempore reasons in the matter of Correa & Maestri. It is about half past 3 on Friday, 22 April 2022, and I am delivering these reasons following an interim hearing that has occupied about an hour and 15 or 20 minutes or so.
The proceedings concern interim parenting arrangements for the parties’ child, X, who was born in 2015. X will be seven years of age in approximately six or seven weeks’ time. The parties to the proceedings are X’s parents: his father, Mr Correa, and his mother, Ms Maestri.
The parties have been in litigation with one another for a significant period of time. The father commenced these proceedings in August of 2018, almost four years ago and a little more than half of the child’s life to date. So the parties have been in dispute with one another about the care arrangements for X for quite a long period of time.
BACKGROUND
There have been a number of expert interventions with the family, and I will come to those in due course in a moment. X is a child who has a rich and diverse cultural background because his parents come from very different backgrounds.
The father was born in City B, Country C, moved to Country D when he was a child, and arrived in Australia in 2008. He is a professional by background and is an educator at the Employer E. Ms Maestri is from Adelaide but she has worked overseas. She has interests in the arts.
The parties met in 2011 and they have had thereafter an on and off relationship. Mr Correa, as a consequence of his background and areas of study, travels overseas regularly or did do.
The parties conceived X. Thereafter they attempted to see if they could co-parent X together, recognising the benefit of this for their child and obviously as a consequence of their love for him. However, at this juncture it would seem to be the case that they did not really have any long term experience of living together or certainly not for significant periods of time and problems stemming from this have ensued in the years which have followed.
The issues arising at the early stage stemming from the father’s perspective was him wanting to spend as much time with X as possible, and from the mother’s perspective it was her view that this was inappropriate given the child’s tender years, the fact that he was breastfed, and that, as a consequence she was obviously X’s primary carer.
The parties were referred to a Child Dispute Resolution Conference at an early stage of proceedings, as I mentioned a moment ago, at which they spoke with the Court Child Expert concerned, Ms F. Ms F described X in November of 2018 as being ‘a happy little boy who loves spending time with each of them’.[1]
[1] See Child Dispute Conference Memorandum by Ms F dated 15 November 2018.
Ms F suggested that notwithstanding the issues in their relationship with one another, which included the involvement of police on a complaint originating I think with the mother, the parties had seemingly been able to protect X from the worst aspects of their conflict and, at that early stage, the parties were able to agree on a comprehensive regime for X’s care.
Whatever agreement they were able to reach regrettably soon broke down and in January of 2020 the parties were referred to another family consultant, Ms G.[2] Ms G’s reported that whilst the parties may have been child focused and able to resolve issues between them in November of 2018, about a year later, this was no longer the case. In particular, Ms G thought there was no evidence to indicate that the parties could successfully co-parent because of their animosity towards one another.
[2] See Child Dispute Conference Memorandum by Ms G dated 30 January 2020.
At that stage the father alleged that the mother was physically abusive to him, racially denigrated him, and was inclined to stalk him; whereas the mother asserted that the father intimidated her, denigrated her intelligence, and attacked her intelligence.
In April of 2020 due to the complicated issues in the case, which relate to the workability of the parties’ parenting relationship, the different cultural backgrounds of the parties themselves, and the fact that each has made allegations of really quite serious antisocial behaviour against the other, it was ordered that X be independently represented in these proceedings. That order was made on 20 April 2020.
X’s representative is Mr Seymour, who is an experienced solicitor employed by the Legal Services Commission of South Australia. Mr Seymour has briefed a barrister today, Mr Frazer, to appear on his behalf. Pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth)[3] Mr Seymour is to be regarded as a party of equal importance to the parties in the proceedings and pursuant to the provisions of the Act, Mr Seymour and, indeed, Mr Frazer are required to assess all the evidence available and then make the submission to the court which they think will best serve the interests of the child concerned.
[3] Hereinafter referred to as “the Act”.
A Family Report was ordered on 31 May 2021. The report was released to the parties on 7 November 2021 in conjunction with a trial, which was to take place earlier this year. That trial did not take place because the mother made a report to the police in which she alleged that she had been raped by the father and on that basis, whilst there was an outstanding police charge, the trial could not proceed.
It now appears to be the case that the police were not in a position to present a brief of evidence in the Magistrates Court and the Magistrate has dismissed the charge. As I have indicated earlier, because there is no statute of limitations in respect of criminal charges it remains open to the police to relay the charges.
At the present time, arrangements for X’s care are mandated by orders that were made on 28 August 2020 pursuant to which, as I understand it, X lives in what is close to a shared care regime whereby he lives six days per fortnight with his father and eight days per fortnight with his mother. These orders were made consensually in the context of a Family Report which was ordered in preparation for the aborted trial.
Ms F, who saw the parties in 2018, was directed to prepare the report. At this stage it is the father’s position that due to concerns he has raised about the mother, including that she has issues with her mental health and the consumption of alcohol, has been denigrating and violent towards him, it is his position that he should have sole parental responsibility for X with the child to live with him and the mother to spend time with the child on alternate weekends.
In answer, the mother proposes that the child live with her and spend reasonably extensive periods of time with his father because she is concerned that at the present time the child is away from her for too long a period.
In interview with him, Ms F described Mr Correa as singularly focused on criticisms of the mother’s parenting with these criticisms informing his belief that he’s the better parent and that X is at risk in the mother’s care.[4] Ms F indicated that Mr Correa was unable to say anything positive about Ms Maestri despite being given the opportunity to do so.
[4] See Family Report of Ms F dated 7 November 2021 at [39].
From Ms F’s perspective this was somewhat concerning because given the history of X’s care up to this stage Ms F considered that Ms Maestri has been X’s primary caregiver and therefore the child was likely to be emotionally reliant on his mother.
In interview with her, Ms F described Ms Maestri as wary and emotionally overwrought which she attributed to having been subject to unremitting belittling and denigrating conduct by the father, both before the parties’ relationship and afterwards.[5]
[5] See Family Report of Ms F dated 7 November 2021 at [48].
It was Ms Maestri’s perspective that the father was using the court system to control and demean her by making endlessly false allegations that she was an unfit parent. She conceded that she would never be able to match the father’s academic credentials but she felt that Mr Correa gaslighted her.
From her perspective the case, over the very many years it had been before the court, was about the father’s relentless pursuit of what he perceived to be his rights in respect of care arrangements for the child, which were not congruent with the best interests of the child concerned, particularly when he was an infant.
Ms F summarised the parties’ relationship in the following terms:
The parties’ dysfunctional on and off relationship appears to have continued post-separation in as much as communication between them remains poor or non-existent which appears to have resulted in important care regimes for X such as night toilet training not being consistent or successfully implemented across the two households which must be confusing for X. Reports of X’s reluctance to separate from the mother on alternate Tuesday when he knows he will not be seeing his mother for six days, if true, raise concerns about the suitability of the current arrangements in the context of the ineffectual communications between the parties and the father’s solely negative view of the mother.[6]
[6] See Family Report of Ms F dated 7 November 2021 at [57].
X was interviewed by Ms F. At the time of interview he was six years and five months of age. He was in reception at H School. He was described as a slim child. He was open and friendly, easy to talk to, and Ms F asked why he was there to see her and X shrugged and said, “My dad wants me to live with him forever.”[7]
[7] See Family Report of Ms F dated 7 November 2021 at [59].
X grimaced as he said this as if not liking the thought of living with his father forever, or perhaps the thought of being away from his mother. X said that he was aware that both his parents love him adding, “I wish I had brought the card I made saying I love them.”[8] X gave Ms F the strong sense that he could not understand why his father wanted him to live with him more than he lived with his mother, when he felt that he loved both parents equally.
[8] See Family Report of Ms F dated 7 November 2021 at [59].
When questioned about what was going on X said, “Things were kind of okay.”[9] Then he added spontaneously, “The thing is I would really like for my mum to live in the same house as my dad. When I was born they did live in the same house but the truth is they don’t like each other now”.
[9] See Family Report of Ms F dated 7 November 2021 at [60].
In my experience, if Ms F was here, I suspect if I asked her whether it is a fairly common occurrence for children of the age of X, who have come from a separated family to express a desire for their mother and father to live together she would say that often happens. It is a trick psychologists use with children. They ask in an open ended way, “What are your three wishes”, and as we know Ms F asked X something like that and he said “to have infinity wishes and for everyone I know to have super powers.”
X loves both his mother and his father and he said in this context that he had, “fun times”, with both parents. He said sometimes he gets bored in the car. He also said he had been smacked by both parents adding, “Mum hits me when I’m naughty and dad jokes. He hits me by hitting me softly on the bum.”
X also struggled, apparently, at being away from his mother for the six days under the current regime. So Ms F’s impression was that X enjoys his time with each of his parents but his emotional needs are being met more by his mother than by his father.
Whether Ms F will change her view about that after she has been cross-examined I do not know, but at this stage, in my view, Ms F has a significant advantage over me in the case in that she has met X and seen him engage with each of his parents on which she is able to comment given she is professionally qualified.
So although Ms F’s opinion is untested it remains a significant piece of evidence. It is often said that a picture is worth a thousand words and in this context Ms F saw X interact with his father and a friend of his father, “J”. Mr Correa was described as attentive and interactive with X and X can count in Language D and he is bilingual to some extent which is a good thing.
X climbed on his father’s shoulders which caused Mr Correa to laugh. Then the two had a discussion about goal keeping and so on and so forth. From her observation, Ms F was of the view that there was an indulgent playfulness between Mr Correa and X and they shared memories together. When Ms F saw X with his mother he was perhaps a little tired.
X was not interested in the sushi Ms Maestri brought with her and he had a story read to him by her, he was a little tired and grizzly but the impression that Ms F had was this was a child who was comfortable with his mother and his maternal aunt and grandmother. Nothing untoward was observed in the interaction of either parent with this little boy and that is a significant thing.
Ms F is undoubtedly concerned about the issues in this case, including issues relating to family violence, Ms F said that, perhaps, she might have to revisit her report if issues relating to sexual violence remained outstanding. Ms F was not in favour of shifting X’s care to one primary carer because she thought that would be very stressful for him.
She thought, perhaps, it might be better to rejig the arrangement so it was more emotionally supportive for the child. Ms F, significantly, also was concerned at what she assessed to be Mr Correa’s limited capacity to genuinely foster and support X’s relationship with his mother.
This was important because there was no evidence that X experiences either of his parents as being an abusive or unsafe parent. So in that context Ms F expressed concerns. She was worried about this little boy. She said:
Unless both parties shift from their polarised view of each other and become genuinely committed to mutually supporting, fostering and facilitating X’s relationship with the other, which will require improved communication between them focusing on ensuring consistent care routines across the households including night time toileting practices, then X’s current transitional distress may well develop into maladaptive behaviours that can only be viewed as detrimental to his emotional wellbeing in the long term.[10]
[10] See Family Report of Ms F dated 7 November 2021 at [76].
That means that if it goes on, as it is, that is the child being exposed to parental conflict, there is a real risk that he will develop all manner of as yet unclear psychological problems. They may have ramifications for the rest of his life. It is quite serious I think.
That brings us to the current proceedings, which basically focus on the assessment of child protection concerns and the assessment of risk. X has not spent time with his father since about 14 March 2022.
Initially there were concerns that he might have been exposed to COVID-19 and because at that stage his mother had a PCR test and she was advised by the health authorities that it was positive. She had to isolate under the regulations for seven days and X, as a close contact, had to isolate for 14 days with her. It is the mother’s case that the child also subsequently tested positive on a Rapid Antigen Test on the 16 March 2022.[11]
[11] See Outline of Case Document of Ms Maestri filed 22 April 2022.
As it appears, for all sorts of reasons, the parties do not trust one another. In this atmosphere, when issues about the medical care of the child are raised, they resort to solicitor’s letters about these matters. It is clear that Mr Correa was not entirely comfortable that there that the issues raised were genuine about COVID-19 were genuine. In the absence of some definite official documentation he made his own inquiries with the school.
There also seems to have been issues about an injury that the child had to his toe and these issues and difficulties all arise not only in the context of the historical rape allegations but also issues to do with the Department for Child Protection. The Department have reported to me that they have received 15 child protection notifications since August of 2018.
These have included the mother being verbally abusive to the father at handovers, the mother putting psychological and emotional pressures on X stating the father does not like him, bruising sighting on X after being in the father’s care, and X displaying sexualised behaviour. Those concerns seem to relate to the father’s concerns about the mother rather than vice versa but it is impossible for me to say.
More recently child notifications were received in December 2021 and March of 2022 including that X was observed looking filthy, skinny, hungry, with long fingernails, smelling of smoke from the fire and alleging that the father did not assist X with his toileting.
Further that the father takes X to the doctor unnecessarily; was manipulative, narcissistic and psychologically controlling; that the father hit X; and in 2019, that the father was arrested in regards to raping the mother.
Further that X had become reluctant to go his father’s residence and disclosed that his father had grabbed him by the back of the neck, when he was angry; and that the father does not show physical affection to X. These concerns seem to emanate more from the mother’s side than the father’s side. The complaints seems to be escalating in their intensity.
In any event, the father has commenced a number of contravention proceedings alleging that the mother has consistently breached orders. He has subpoenaed some of the mother’s medical records. The mother asserts that, in effect, she does not dispute, in the past, she has had issues with her own alcohol consumption, when depressed, but from her perspective, these concerns are historical now and have been appropriately managed and are in remission.
The father commenced these proceedings on 7 April 2022. In his application he points to the fact that he has not seen the child since 14 March 2022 against a background of what he says is an uncertain and inherently improbable chronology regarding COVID-19 testing and in a context of him being appropriately concerned about X’s toe injury, which resulting in him arranging appropriate medical assistance.
Essentially, it is his case that the child has been withheld from him for no proper reason and in this context he asserts that the mother’s mental health is adversely impacting the child causing the child emotional harm. It is his position that the mother is becoming increasingly erratic and in that context will poison the child against him. The father’s application was given an urgent hearing date, as the father’s solicitors requested, which was 14 April 2022.
At the hearing on 14 April 2022 the mother had not formally responded to the application. As a consequence she was given until Wednesday 20 April 2022 to do so and the case has been fixed for hearing today, which was the earliest I could come to it whilst allowing the mother time to respond.
During the hearing on 14 April 2022, I was told that the mother had made a complaint to the police that Mr Correa had assaulted X and the police were going to interview the child forensically. Against that background the case was adjourned. Regrettably the police have not as yet interviewed the child. I am informed apparently they are going to do so shortly.
It is the mother’s position that ordinary considerations of caution should dictate that I should not do anything in respect of X spending time with his father unsupervised until the police have conducted their investigations. In the short term, whilst this occurs, she is open to X spending time for unspecified periods, but during the day, subject to the supervision of one of his maternal relatives.
That proposal has not been formally responded to by Mr Correa but it is self-apparent not acceptable to him because he seeks the immediate resumption of his time spending arrangements with X. In effect, he wants the police to be engaged to remove the child from the mother and deliver X to him.
I have been provided with correspondence that has passed between the parties in respect of the COVID-19 issues, issues to do with his toe and medical material so far as that is concerned. It is the father’s position that his correspondence has been respectful and focused on the child’s legitimate medical conditions. The mother, in her affidavit, deposes that she has done what the authorities told her to do in respect of COVID-19 in respect of testing and isolating the child.
She also asserts that X has been unwell, vomiting and fatigued in mid-March. From her perspective the child could not be returned to Mr Correa because of COVID-19 and it is in this context that she says that the child made a disclosure to her in the evening of 21 March 2022. In her affidavit she deposes as follows:
At about 8.30 pm on 21 March 2022 X made allegations of abuse by the father. I was speaking to X about having to return to his father when he became noticeably agitated. X said, “No. I don’t want to go there and you can’t make me.” I kept insisting that he would have to go as it was his turn to spend time with Daddy. X replied, “Well….. if I do there are things that have to change, four things that have to change.”
X, unprompted, said that, “Daddy can’t grab me around the neck”, paused, and then said, “because it hurts.” I did ask X if he thought his dad was just joking or messing around to which he said, “No.” He told me that it happens when daddy gets angry with him. X had previously on occasions been reluctant to return to his father but this was the first time he had raised issues of violence.
X also mentioned that his daddy sends him to his room when he is just bouncing or playing. He gets angry and then has to spend time in his room.
Over the next few days X repeated that the father had been violent to him and that happened “a lot” and that “its bad there”. He has repeated this in front of the maternal grandmother when she mentioned about going back to Daddy’s, being unaware of what I had been told by X.[12]
[12] See Affidavit of Ms Maestri dated 20 April 2022 at [24] – [27].
In that context she made a report to the E Police Station to a Constable F. She further advises that that report has been forwarded to the Child and Family Investigation Unit who are going to send a qualified officer to interview X, and in that context she was told not to speak to X about the topic any further.
That was on 25 March 2022 and it is apparent from the mother’s affidavit that between 21 and 25 March 2022 there have been several conversations about it and they have allegedly involved others. In this context I do not know whether Ms Maestri has made a formal statement to police. I do not know whether the maternal grandmother has made a formal statement.
In any event a Constable telephoned the mother on 10 April 2022 saying that they had been delayed getting a qualified officer because such officers only work Monday to Friday and they hoped that it would be within a week. Over a week later Ms Maestri telephoned the officer again who said, “Things are progressing but a date for interview had not been set.”
THE LEGAL PRINCIPLES APPLICABLE
The central issue in this case, at this stage, centres on child protection risks. Essentially what I must do is the level of risk arising for X, if he goes into his father’s care, given the allegation of physical abuse that has been made?
As all concerned will be aware the best interests of the child is the paramount or most important consideration in making any order in respect of a child. In assessing how a child’s best interests are made I am required to look at the matters listed in section 60CC of the Act. Those considerations are basically divided into two categories: primary considerations of which there are two, and a longer list of additional considerations of which there are fourteen.
The primary considerations are, firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents and, secondly, the need to protect the child from physical or psychological harm: from being subjected to abuse, neglect or family violence. However, as a result of the insertion of section 60CC(2)(a) into the Act, I am directed to give greater weight to protective concerns.
If the child has been assaulted that would amount to family violence and quite possibly abuse. I am duty bound to give such considerations close attention, but at the same time there are risks of depriving a child of the benefits of having a worthwhile relationship with a parent on the basis of uncertain allegations, which may be incapable of definitive proof one way or the other.
The only two individuals who know certainly whether X has been physically assaulted are Mr Correa, himself, and X. For obvious reasons, Mr Correa is not likely to make admissions, if he has consciously assaulted the child. In addition X, given his age, his likely level of cognitive development and language skills, it may be very difficult, if not impossible, for himself, to give a coherent account of what did or did not happen to him quite possibly to a strange person some weeks after the incident complained of occurred.
These proceedings arise at an interim stage. Necessarily I have not seen either of the parties in the witness box. I am not in a position to assess their truthfulness or their motivations or bona fides. Interim hearings often occur in a situation of crisis. As such, the hearing is truncated in nature and there is no opportunity to test evidence and allegations through cross examination.
However, the authorities are clear that I cannot defer the risk assessment task until all the evidence is to hand. Rather, what I must do is look at the evidence available to me and assess the risk. The test is usually expressed in the following terms:
Is there unacceptable risk? This requires an evaluation of the nature and degree of the risk arising and whether with or without safeguards it is acceptable.[13]
[13] See Slater& Light [2013] FamCAFC 4.
It is clear that in acrimonious proceedings such as this one it is not uncommon for allegations of abuse to be made, which are not true. False allegations may be made by parents acting in good faith. They may have misperceived information given to them. In some extreme cases they may fabricate evidence to gain an advantage in proceedings. It is always wise to consider that ambiguous events can have an innocent explanation.
In a case called W & W, the Full Court provided guidance when a court is called upon to assess whether or not acceptable risks arising, particularly where there is an allegation made of abuse. The Full indicated that considerations should be given to these types of issues:
·the court should look at what is the nature of events alleged to have taken place;
·who made the allegations and it what circumstances;
·what level of detail do they involve;
·over what period of time are the events alleged to have occurred;
·what effects are said to be exhibited by the child?
·are there satisfactory explanations for the allegations apart from abuse ?
·Is there any expert evidence abuse? [14]
[14] W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892.
Essentially what I have to do is given earnest consideration to the allegations of made and attempt to place them in context and then try, as best can be done, to predict what is the likelihood of a harmful event occurring and assess the severity of the impact that may arise for the child concerned, if the abuse occurred. As I have already observed parents, sadly, do assault their children from time to time although one naturally assumes that no loving parent would do such a terribly wicked thing.
In this case the Independent Children’s Lawyer who, as I say, is charged with the assessment of the evidence in the case and then recommending what he has assessed to be the best interests of the child asserts that the allegations in this case are amorphous and nebulous and essentially arise in the context of significant conflict, which is escalating between the parents.
It is his position that the complaints lack context and are unsupported by any independent corroborating evidence. There is no medical evidence to indicate that the child has been bruised or hurt. No disclosures have been made to a third party such as a medical practitioner. I have not got an affidavit from the maternal grandmother. In all those circumstances it is Mr Frazer’s submission that to resume time between the father and X would not represent an unacceptable risk. That is also the positon of the father.
The father’s very experienced counsel, Ms Cocks, has carefully analysed the evidence and essentially it is her submission that there is an escalating level of complaint against her client, which his becoming increasingly outlandish and in those circumstances it behoves the court to adopt a very cautious approach to accepting its probity, particularly given the risk of depriving X of a worthwhile relationship with his father.
As I have previously indicated, it is the mother’s position that the court needs to await the police involvement. I do not know what the police will or will not find. I have not got the ability to predict the future, no-one has, but I do have some concerns that they may not be able to make any definitive view as to whether the child has or has not been assaulted and certainly in their investigations they are determining whether they have a case beyond reasonable doubt to charge Mr Correa with a criminal offence.
In terms of the additional considerations I have to consider the nature of the child’s relationship with each of his parents and it is clear, I think, from Ms F’s report that X is a child who has a strong and positive relationship with both his parents and has said positive things about them.
In that context I think it is a significant thing that the child is deprived of a relationship with his father for quite possibly an extended period of time. I also have to consider the effect on X of being separated from one of his parents and in this context it is, significant that he has not engaged with his father for a period of weeks which given his age as a reception level primary school student that is a significant period of time.
Above all I have to assess the risk and, in my view, it would be a disproportionate response to the risk to direct that until the police do whatever they are going to do that the father’s time be closely circumscribed. There is no evidence to indicate that the child has been physically injured in the past such as to require the involvement of a medical practitioner.
This is a case where there have been multitudinous reports to all manner of child protection authorities by both the father and the mother in respect of this child. In the jargon that is known as systems abuse. It is abusive to expose a child to unnecessary examination or complaint.
I am concerned about those issues, but – it is also not beyond the bounds of possibility, that if the police do discover something that any orders I make today can be reversed, but in all the circumstances I have formed the view that it would not represent an unacceptable risk for the father to resume spending time with the child.
A commensurate response to the risk is to underline to the parties that they are to refrain from abusing or denigrating the other in the presence or hearing of the child or permitting any other person to do so, or discussing these proceedings or any allegations with the child and I will also make the injunction that each party be restrained from physically disciplining the child.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 22 April 2022
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