Davidson and Cox

[2014] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIDSON & COX [2014] FCCA 3147

Catchwords:
FAMILY LAW – Parenting – interim hearing to suspend time – whether unacceptable risk of harm to child.

Legislation:  
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

M & M (1988) 166 CLR 69
A & A (1998) FLC 92-800
McCall v Clark (2009) FLC 93‑405
Loddington & Derringford(No.2) [2008] FamCA 925
W (Sex Abuse:  Standard of Proof) (2004) FLC 93‑192
TF & JF & Children’s Representative (2005) FLC 93‑227

Applicant: MR DAVIDSON

Respondent: MS COX

File Number: HBC 95 of 2013

Judgment of: Judge Baker

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Hobart

Delivered on: 21 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Munro

Solicitors for the Applicant: Munro & Associates

Respondent in person: Ms Cox

Solicitors for the Respondent: N/A

Counsel for the Independent Children’s Lawyer: N/A

Solicitors for the Independent Children’s Lawyer: N/A

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. Orders 4(a)–(d) of the Orders of the Federal Circuit Court of Australia made 18 December 2013 be suspended.

2. The child, X born (omitted) 2007 ("the child") spend time and communicate with the Applicant as follows:

   (a)Commencing 25 November 2014, by telephone twice per week on Tuesdays and Thursdays between 6.30pm and 7.30pm when the Applicant may initiate a call to the Respondent, and the Respondent will facilitate that call to the child; and

   (b)Commencing 28 November 2014, each Friday from after school until 5pm Saturday.

3. The Applicant’s time with the child, including during the collection and return of the child, be in the presence of the paternal grand-mother.

4. The parties each contact the (omitted) Children's Contact Centre (“the Contact Centre”) within 48 hours and arrange an appointment for an assessment for suitability for changeover to be effected at the Contact Centre, and:

   (a)Attend the assessment;

   (b)Comply with any appointments made by the Contact Centre for changeover;

   (c)Comply with all rules of the Contact Centre; and

   (d)Comply with all reasonable requests or directions of staff of the Contact Centre.

5. In relation to the collection and return of the child:

   (a)If a school day:

   (i)The Applicant collect the child from the child’s school and the Respondent not be on the school grounds either during or for 2 hours prior to that collection;

   (ii)The Applicant return the child to the Contact Centre, and if the Contact Centre is otherwise unavailable or unable to be used, to the (omitted) Police Station.

   (b)If a non-school day: child be collected and returned by the Applicant to the Contact Centre, and if the Contact Centre is otherwise unavailable or unable to be used, to the (omitted) Police Station.

THE COURT ORDERS THAT:

1. The matter be adjourned to 11 December 2014 at 10am for mention.

2. Pursuant to s.68L(2) of the Family Law Act1975, the child be independently represented, and it is requested that that the Legal Aid Commission of Tasmania make arrangements as soon as practicable to secure such representation.

3. As soon as practicable upon appointment by the Legal Aid Commission of Tasmania or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

4. Within 48 hours of notification of the appointment of the Independent Children’s Lawyer, each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

5. Pursuant to s.68P of the Family Law Act 1975, to the extent of any inconsistency between these orders and the Interim Family Violence Order made against the Applicant in the Magistrates Court of Tasmania on 1 August 2014, these orders shall prevail and the Interim Family Violence Order is invalid to the extent of the inconsistency.

6. These Orders are inconsistent with the Interim Family Violence Order in that these Orders provide for the Applicant to spend time with the child, and for collection of the child at (omitted) Primary School.

7. These Order are inconsistent with following Orders provided in the Interim Family Violence Order:

   (a)Order 3 in respect of approaching, spending time with and communicating with the child;

   (b)Order 5: in respect of collection of the child at (omitted) Primary School which is within 2000m of the boundary of (omitted); and

   (c)Order 9:  in respect of collection of the child at (omitted) Primary School.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT HOBART

HBC 95 of 2013

MR DAVIDSON

Applicant

And

MS COX

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application made by the father of the child X, born (omitted) 2007, for interim parenting orders in respect of X’s time with him.  He has filed a contravention application but has not pressed the hearing of it. 

2. The mother sought an adjournment of the interim hearing due to not having Legal Aid funding.  I declined her adjournment application, as this hearing had been listed on 27 October and the child’s time with the father had been ceased by her since 13 July 2014. 

3. The father has not communicated with X since 15 July 2014 and has not spent time with him since 13 July 2014.  Final parenting orders were made by consent on 18 December 2013.  They provided that X spend alternate weekend time, special day time and school holiday time with the father.  The father proposes that order 4(a) to (d) be suspended on an interim basis. 

4. The father essentially proposes that X spend time with him each Friday from after school until 5 pm Saturday; telephone time twice per week on Tuesdays and Thursdays between 6.30 pm and 7.30 pm; the changeover occur at the (omitted) Primary School on a school day;  the mother be restrained from entering school grounds during that changeover or two hours prior to that changeover; and on return, the father return the child at the (omitted) Police Station; the father’s time with X be in the presence of the maternal grandmother, and the father collect and deliver X in the presence of the paternal grandmother. 

5. The mother sought on an interim basis that X spend no time with the father and have no communication with him.  Her position is that he is at risk of harm in the father’s care, due to the father physically hurting X on a number of occasions from January to July 2014; drinking and using drugs and having X sleep with him when X is in his care; and committing family violence upon her.  She indicated in her submissions that if the court was minded to order time, the time should be supervised at the (omitted) Children's Contact Centre.  She did not agree for the maternal grandmother to supervise the time. 

6. The mother is therefore seeking that the court suspend the final orders made by consent in December 2013 on an interim basis.  To persuade the court to suspend the orders made in December 2013, she will need to show what has occurred since the orders were made to satisfy the Court that there is an unacceptable risk of harm to X if he spends time with the father. 

Background

1. The parties were in a relationship from around 1992.  The father said they separated in 2007.  The mother does not state the date of separation.  She asserts that they continued a sexual relationship. I refer to paragraph 14 and paragraph 68 of her affidavit filed on 19 November 2014. 

2. The mother lives in (omitted) with X.  The father lives in (omitted) with his mother. 

Evidence

1. The father relied on his affidavit filed 19 August 2014, his mother’s affidavit filed 5 November 2014, the affidavit of Andrew John Munro filed 18 November 2014, two memoranda of Family Consultant Ms D dated 5 December 2013 and 17 November 2014. 

2. The mother relied on her affidavits filed 19 and 20 November 2014 and on the documents relied on by the father. 

3. I adjourned the interim hearing part-heard on 19 November until 2.15 pm on 20 November to allow the mother time to answer the affidavit of Andrew John Munro filed 18 November. She had the two other affidavits relied on by the father when she completed her first affidavit.  She filed her second affidavit in Court at 2.40 pm on 20 November when the hearing resumed. 

4. The mother did not respond in either affidavit to evidence contained in the two affidavits that she had prior to the commencement of the hearing.  She annexed to her affidavit her counselling notes. I gave Counsel for the father the opportunity to make short submissions in respect of that new evidence. 

5. This is an interim hearing and it is difficult to make findings on disputed facts without cross-examination.  Nevertheless, I am required to assess the degree of risk to X of spending time with the father on an interim basis.

Relevant Law

1. In respect of proceedings for a parenting order, the court may make such parenting order as it thinks proper, subject to part VII, division 5 of the Family Law Act 1975 as amended. Section 60B sets out the objects of part VII and the principles which underlie those objects. I will read them out, because it is important for the mother to understand them:

   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; 

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential;

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   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;

   (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;

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   (d) parents should agree about the future parenting of their children;

   (e) children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.

2. Section 60CA of the Act provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration. In determining the child’s best interests, the court is guided by section 60CC of the Act and informed by section 60B. Section 60G requires the court to ensure, to the extent that it is possible to do so, consistently with the requirement that the child’s best interests are the paramount consideration, that an order does not expose a person to an unacceptable risk of family violence.

3. Orders should be made, therefore, which protect children from risk of harm and ensure that they have a meaningful relationship with both of their parents wherever appropriate.  The principles to be applied in a matter involving allegations of sexual abuse are set out in the High Court decision of M & M (1988) 166 CLR 69.  The principles which emerge from this decision include the principle that the best interest of the child is the decisive issue.  The nature of the risk is best expressed by the term “unacceptable risk”. 

4. It is an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The concentration should normally be upon the question of whether there is an unacceptable risk to the child.  These principles are not confined to allegations of risk by reason of sexual abuse.  In A & A (1998) FLC 92-800, the Full Court of the Family Court held that risk covers not only physical, but also emotional harm. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here, which involve the assessment of the risk of future physical and/or emotional harm.

5. In accordance with these principles, the Court should therefore evaluate the nature and degree of risk to X and whether, with or without safeguards, it is acceptable. 

The Father

1. The father said the mother obtained a police family violence order against him on 14 July 2014.  She subsequently obtained an interim family violence order on 1 August 2014, which prevents the father having any time with him, including telephone time. 

2. The father denied that he assaulted the mother on 5 July 2014.  He denied he assaulted or hurt X.  He said he has rebuffed the mother’s continuous sexual advances.  He contends that she is mentally unwell. 

3. The staff at (omitted) Primary School helped him with changeover, requesting that the mother not attend at the school.  She then insisted collection occur at the father’s home.  The parties agreed that the father collect X from school and then return him to a park in (omitted) until 13 July 2014. He has not seen him since. 

4. The paternal grandmother also raised a concern about the mother’s mental health.  She referred to an AFL football match on 7 June 2014 when the mother attended and wanted to sit with the father, her and X.  She said that the mother telephoned the father 26 times and left 30 text messages. 

5. The affidavit gives details of the constant contact by the mother with the father when X is with him, the difficulties on changeover and the very troubling conversations that she has had with X. I refer to paragraph 35 of her affidavit:

   “X had a meltdown and told me and Mr Davidson that I was not his grandmother and Mr Davidson was not his father, and only the Cox’s were his family and that we were liars

   He said he was the last of the Cox line.  He said Mr Davidson was a liar, because he said he would marry his mother but he didn’t.  He said Mr Davidson lost his mother’s house at (omitted) and a big white car.  He said Mr Davidson was a bad person because of lots of other bad things he had done to his mother.  I asked X if Mr Davidson was not his father then who was, and he stated mum is still looking for him and that she is the only one that really cares about him”

The Mother

1. The mother’s affidavit contains extensive allegations about the father and family violence against her and X prior to the making of final parenting orders by consent in December 2013.  She has over the years been in contact and engaged with many organisations and practitioners as a result of the given history.  At paragraph 114, she said:

   I have been instructed not to allow Mr Davidson near X or me again. That had been confused by Child Protection, the department initially suggesting that, “You must allow Mr Davidson to see X.” The enormous pressure I was put under last year by Mr Davidson that included his abuse that led me to give into him, because I had been terrified of what he may do next, and even the ideal of the Family Law Act. But I now understand the need to protect X and keep him safe far outweighs that ideal.

2. The mother in paragraphs 46 to 53 gives details of a sexual abuse allegation made against the father in respect of X in 2012.  This allegation was investigated by Child Protection and the police.  At paragraph 53, she said:

   When playing a computer game later that year, X had asked me about the truth and imagination.  I explained to him the difference in the context of movies and computer games, and X then told me, quite unexpectedly, “You know that thing about dad poking me up the bottom:  it is true.  When he pulled it out, it hurt,” but that he was too scared to tell me about it again, because Mr Davidson told him to lie and threatened his life if he didn’t.  X said, “Please don’t tell anyone, because he will kill us.” Mr Davidson has been inappropriately affectionate with X, kissing him on the lips as if he was his lover, not father, and then making a point of not giving the same affection to me, since X was one or two years old.  It was weird.

3. This allegation was made prior to the mother agreeing to the final consent orders made in December 2013.  Also in her affidavit, she outlined in detail allegations of sexual activity by the father with her in 2011 and 2012, implying that it is likely that the sexual abuse against X occurred.  The evidence against the father after the making of the consent orders on 18 December 2014 is contained from paragraphs 78 to 116 of her first affidavit, and to her second affidavit, she has annexed her counselling records, which also makes reference to allegations. 

4. The mother in her first affidavit complained about the father being late for visits with X and missing visits with him.  She said that:

   He would go to places he should not with people he should not whilst X was in his care.  He took X to the toilet and showered him when X was perfectly capable of doing these things by himself.  He physically hurt X on a number of occasions from January to July 2014.  He admitted doing these things to me over the telephone but denied it a minute later and to others.

5. At paragraph 89 of her first affidavit, she said:

   He would take X away on weekends where he could drink and use drugs and have X sleep with him without his mother.  He used drugs at his mother’s house right under her nose, presumably, without her knowing.  I could hear the bubbling of his bong over the telephone as he spoke to me and he self-reported this.  He said he would have X taken away from me if I tried to do anything about it.

6. At paragraph 95 she said:

   The police were informed by me of genuine concern for the wellbeing of X – that X was being taken to placed where there was illicit drug use and X was being physically harmed.

   At paragraphs 102 and 103 of her first affidavit she said that X was distressed about time with the father.  She said on the weekend of 4 April 2014 the father repeatedly pushed X causing bruising and cuts as a means of discipline and X was very distressed.  There was no medical evidence of bruises and cuts after that weekend.

7. The mother said that X was distressed about not being able to telephone her when with the father.  She said:

   Each of the visitations were with incident of physical violence, intimidation, drug use and much distress to X.

   I refer to paragraph 107.  At paragraph 116 she said:

   We do not wish to live in fear and it is most unfair to a child of X’s age to have to deal with such responsibility.  X and I are not willing to neither continue a live with violence nor suffer further from the consequences of that life, including trauma and anxiety and request that the Court protect us from that now and in the future.

8. The mother asserted that X is not safe in the father’s house.  In respect of the family violence incident on 5 July 2014, she asserted in her application for the Family Violence Order that X was bruised by the father badly in the chest and legs.  She said that X’s injuries were apparent on his return to her and were confirmed by the GP when X had complained of chest pain on a few occasions since.  I refer to page 36 of annexure C to her first affidavit. 

1. The counselling note dated 7 July 2014 attached to her second affidavit states that the mother explained to her counsellor ( this is two days after the incident) how she was assaulted by the father.  There was no mention by the mother about the father hurting X.  There was a discussion about varying the parenting order to reflect the police family violence order.  The mother also mentioned that she attended a general practitioner appointment some time ago, and that X in the GP appointment had disclosed to the GP that the father had assaulted him and was being abusive about the mother during access visits.

2. As I have said, there was no mention to the counsellor of the father assaulting X on 5 July 2014.  There was also no mention of any assault to X in the after‑hours doctor report dated 6 July 2014, when the mother attended Dr A in respect of her injuries which she asserted occurred on 5 July.  The counselling note on 8 July 2014 at 5.29 pm states:

   Ms Cox ambivalent re usefulness of police family violence order if X not included on order.

3. The counselling note dated 10 July 2014 referred to the mother having plans to apply to suspend the family law court orders and then apply to have the matter reheard on the basis of X being at risk while in the father’s care.  The first mention by the mother of an assault on X by the father is on 16 July 2014, 11 days after the incident, when she spoke of taking X to the GP because of chest pains.  X disclosed to the GP that his chest was sore because his father had pushed him in the car seat, and it had been sore the whole time.  He told the GP it happened when his father was hitting the mother.

4. Annexure P of the mother’s affidavit is a progress note for X of Dr J dated 15 July 2014, 10 days later, which says that:

   10 days ago, X was pushed on left chest by dad and has tender left ribcage.  X reports he hit him on head a few times on a different occasion and reports he saw his dad hit mum in face with his elbow approximately 10 years ago. 

5. The mother asserted that should read “10 days ago”. 

6. I turn to the education Department’s records which are annexed to Mr Munro’s affidavit.  These records raise concerns about the mother’s lack of cooperation in providing X for changeover and about her relationship with X.  The statement of the principal of (omitted) Primary School, Ms E, indicates her concerns about the mother’s behaviour with X:

   Ms Cox found it very difficult to separate from X, and when he did come to school, Ms Cox wanted to come in for parent help on an almost daily basis in the classroom as well as additionally help in the canteen and library.  X lives within metres of the school boundary.  He is always brought to the classroom by Ms Cox.  He often arrives late or just as the bell goes and does not connect with other children or staff prior to his class time.  If he plays with other children at the end of the day, Ms Cox shadows him very closely. 

   At times, X has appears resentful of this and pushed Ms Cox away or run off in a different direction (as observed by myself and other duty staff).  During the water safety program in 2013, Ms Cox was by the poolside every day, sometimes driving X down and back in her own car or sitting beside him on the bus.  Ms Cox’s constant vigilance and close presence has meant X has comparatively few opportunities to explore and play independently or to develop other significant relationships of his choosing. 

   Ms Cox has expressed animosity towards Mr Davidson to me and other staff, such as Ms M and class teachers, on many occasions.  Her actions at parenting changeover times have resulted in difficult situations for the school to manage and also difficult for X to accept the parenting arrangements as normal.  Mr Davidson has always been cooperative with school requests and behaved sensitively during his interactions at (omitted) Primary School.

7. On 18 March 2014, Ms E wrote an email to Ms D, a school social worker:

   I wonder if you may be able to advise us this prior to Friday.  X access stress with his mother is fast snowballing, with Ms Cox [the mother] trying hard to claim that X is traumatised and not safe during his visits with dad.  We have not seen any indication that this is the case, and if anything, X is more settled when he sees his dad, not less.  I am actually increasingly concerned about mum’s mental health.  X is never anywhere without her, and as he grows up, he is being stifled.  The next scheduled visit with his dad is this Friday, and Ms Cox has medical appointments for X today.  I suspect that she is hopeful a doctor may be convinced to disallow dad’s visit this week on medical grounds.  Ms Cox is also deadset on collecting X from the classroom on Friday afternoon and taking him out to dad in the car park, all of which is completely unnecessary.  There is no reason why dad cannot collect X himself.  This process not only puts us on edge, particularly the classroom teacher, but I’m sure it makes more of a fuss than X would like to.  Is there anything we can do?

8. Ms E wrote a letter to the mother in March 2014 requesting her not to attend the school for changeover.  She wrote:

   School staff will ensure that X is collected by Mr Davidson in accordance with the order.  In my capacity as principal, I advise you not to be on school property during this time.  I have asked our school social worker, Ms D, and school psychologist, Ms H, to contact you and offer their assistance and support your family.

9. On 21 March 2014, the mother wrote an email to (omitted) Primary School, including the content of a letter to the father’s solicitor, to suspend time immediately and enclosing a letter from X’s medical practitioner.  The letter to the solicitor indicated that after obtaining expert medical advice, the mother’s view is that X’s welfare is not being served by the current contact regime and that she had been advised by the treating medical practitioner that time should be suspended. She wrote:

   Please be aware that contact shall only be resumed when the medical expert advises that it is in the child’s best interests to resume such contact and your client fulfils his obligations pursuant to the orders.  Contact may be able to be resumed on a reduced and fully supervised basis by agreement.

10. The mother had taken X to his doctor, Dr J. She obtained a medical certificate on 21 March 2014 in which he gave his opinion that the visitation arrangements should be reviewed and X’s wishes be considered.  He wrote that X has told him on more than one occasion that he does not want to spend time with his father.  He has observed him for the last few months in his practice and has noticed his behaviour is very disruptive immediately after a visit to his dad, and his behaviour improved after a visit.  Prior to the next visit, he became very apprehensive, with a change in behaviour. 

11. The mother did not want the father to attend school to collect X.  She telephoned the school on 31 July to inform Ms E that the family violence order protected X from his access visits as all school boundaries were within the 50‑metre exclusion zone.  Ms E had a copy of the order from the father and informed the mother that she had received instructions from the police and the Department of Education legal services that the father could collect X without breaching the order.  The mother told Ms E that the papers on file were wrong and she had different orders. 

12. On 1 August 2014, the mother informed the school by email that X was unwell and she was taking him to the doctor for an immediate assessment and he would be returned to school later that day.  He was not returned to school, and an updated family violence order was emailed to the school after 4 pm.  X was again absent from school on 15 August 2014.  The updated family violence order restricted the father to 2000 metres outside school grounds and prevented the father from contact with X.  This interim order was obtained without an appearance in Court by the father.

13. The interim family violence order of 1 August provided, amongst other things, that the father must not stalk the mother or X; nor directly or indirectly threaten, harass, abuse or assault the mother or X; not approach the mother or X directly or indirectly by telephone, email, facsimile, letter, SMS, text message or any other form of electronic communication, except during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings consented to by both parties.  He must not enter the premises at (omitted), where the mother or X is presently living; not go within 2000 metres of the boundary of the premises at (omitted).  The hearing for a final order is listed in January 2015.  The father is opposing the application.  He denied the allegations made by the mother.

14. I turn to the primary considerations of section 60CC(2)(a), which provides that when considering the best interests of a child, the Court is required to consider the benefit to the child of having a meaningful relationship with both the child’s parents. This consideration is informed by section 60B(1)(a) of the Act, which provides the best interests of a child are to be met by:

    ...ensuring that children having 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.

15. The term “meaningful” has been the subject of a number of judgments.  In McCall v Clark,[1] the Full Court of the Family Court said that the preferred approach to this consideration is to consider the prospective approach to the child of having a meaningful relationship with his parents, that is, the Court should consider and weigh the evidence as at the date of hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child had a meaningful relationship with both persons.  His Honour Cronin J in Loddington & Derringford(No.2)[2] at paragraph 169 noted:

    ...for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.

    [1] (2009) FLC 93‑405.

    [2] (2008) FamCA 925.

16. X has a relationship with the father.  If an order is made for no time, he will be unable to have a meaningful relationship with the father.  The mother reported to the Family Consultant in December 2013 that X is excited to see his father. She added that he returned to her care exhibiting negative behaviours towards her, and on occasion got angry and hit other children.  This was before the final orders were made.

17. In Re W(Sex Abuse:  Standard of Proof)[3] and in TF & JF & Children’s Representative,[4] the Court emphasised the importance of maintaining a worthwhile relationship between a parent and a child:

    The termination of a worthwhile relationship between a parent and child ought, in most cases, be the course of last resort.

    [3] (2004) FLC 93‑192.

    [4] (2005) FLC 93‑227.

18. In order to terminate the relationship between X and the father even on an interim basis, there would need to be an unacceptable risk of emotional and psychological harm from which X requires protection. 

19. Section 60B refers to the objects of Part VII of the Act, and, generally, children have a right to know and be cared for by both their parents unless it is contrary to their best interests.

20. I consider that it is of benefit for X to have a meaningful relationship with the father.  He has a close relationship with the mother. I also consider that it is of benefit of him to have that meaningful relationship with her.

Section 60CC(2)(b)

1. Section 60CC(2)(b) provides that when determining the best interests of the child the Court is required to consider, “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect of family violence”.

2. Pursuant to s.60CC(2A) when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is required “to give greater weight to the considerations set out in sub-s (2)(b)”. Section 60CC(2A) must be read alongside ss.60CC(2)(a) & (b).

3. The need to protect a child from the risk of harm must be balanced against the consideration that it is in the child’s best interests to have a meaningful relationship with both parents in the light of the relevant s.60CC(3) considerations. However, as I have said, pursuant to s.60CC(2A), the Court is to give greater weight to the consideration set out in s.(2)(b).

4. Section 60CC(2)(b) refers to family violence. Family violence is defined in s.4AB of the Act to mean violent, threatening or other behaviour of a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

5. I consider that on the evidence, there are reasonable grounds to find that family violence has occurred in the past, in particular during 2008 and 2009 when family violence orders were made and there were breaches of orders made by the father.

6. It is likely that in the past, X witnessed family violence. In December 2013, the father admitted to the Family Consultant that there had been yelling and screaming between the parties which X has witnessed.  There have been two previous family violence orders in 2008 and breaches by the father of family violence orders, several involving property damage.  The final orders made on 18 December 2013 contain injunctive orders prohibiting either party from using illicit drugs while X is in their care, or from taking X to any place where illicit drugs are used.  They are restrained from using physical discipline or verbal abuse to X.  The father agreed not to take a shower with X or wipe his bottom.

7. The mother obtained a family violence order, as I have said, on 14 July. It provided, amongst other things, that the father must: (1) not stalk the mother; (2) not directly or indirectly threaten, harass, abuse or assault the mother; and (3) not go or loiter within 50 metres of the boundary of the premises at (omitted), in which the mother may be living or staying from time to time.

8. In respect of the primary considerations, I am not persuaded that the evidence indicates that the father harmed X on 5 July 2015.  If he had pushed him and hurt his chest, I have no doubt the mother would have mentioned this to Dr A and to her counsellor.  The medical report of Dr J is 10 days after the incident.  The doctor accepts the report of X that he was pushed in the chest 10 days before.  Dr J has not conclusively stated that the soreness was consistent with a push to the chest.  He does not mention any bad bruising.  On 30 July, the doctor was still reporting a tender left upper chest and left ribs and states “bruises still”, although he had not mentioned any bruising in his report of 16 July. 

9. The evidence is inconclusive. The reports of the doctor have been made without any input from the father and without knowing exactly what the doctor was told.  There has been no opportunity for cross‑examination of him, and at this time, his opinion about the child’s contact with his father is of no assistance to the Court.

10. I am not satisfied by the evidence that the need to protect X from risk of physical and psychological harm outweighs the benefit of him having a meaningful relationship with the father. 

11. I have concerns about the mother’s attitude to X’s relationship with the father.  The evidence indicates that she has used the interim family violence order to prevent X from spending time with the father.  She has made the changeover difficult prior to that.  She has not denied the allegations made by the father and the paternal grandmother about what she has said to X about them. 

12. The mother said she was acting protectively in respect of X, but there is no evidence which persuades me that there is an unacceptable risk to X spending unsupervised time with the father.  The mother had made vague allegations about the father’s care of X and family violence towards him since the orders were made, apart from the incident on 5 July.  The Family Consultant said that if the mother is unwilling to promote X’s relationship with the father, X is at psychological risk from her behaviour.  This will need to be further investigated, as will all the other allegations.

13. I turn now to the additional considerations set out in s.60CC(3) of the Act.

Section 60CC(3)(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

1. There is little evidence about these considerations due to the concentration by the mother on the family violence issue.  The father asserted that X loves spending time with him.  The mother claimed X is scared of the father and traumatised by his behaviour.  X’s genuine views need to be investigated and whether the mother is influencing his attitude towards the father and the paternal grandmother.

Section 60CC(3)(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);

1. X has a close relationship with his mother, who has been his primary carer all his life.  He has been prevented from having a relationship with his father since July 2014.  In December 2013, the mother told the Family Consultant that X gets on well with his grandmother.  She suggested that the paternal grandmother be in attendance for X’s visits with the father at that time.  She does not hold that view any longer. 

2. She asserted at this hearing that the paternal grandmother is not an appropriate supervisor because of the contents of paragraph 83 and 105 of her affidavit, in which she said that the mother had grabbed her by the arm and told her, “I do not want you here.” She said angrily, “you almost had Mr Davidson put on a sex register.  How could you make up such allegations?”  She says this was only days after she had undertaken a promise at Court to Mr F and Mr Munro that she would be unbiased and put X’s best interests first when it came to supervision of Mr Davidson’s time with X:

   It was clear that she would not have been able to carry out what she said she could.  I had to bite my tongue and not say anything at all.

3. At paragraph 105, she says:

   Mr Davidson and his mother would turn their phones off so that I could not ring X whilst he was in Mr Davidson’s care.  I had Mr Davidson’s mother answer on one occasion, and all she said – “this is payback” nastily when I asked to speak with X, and she hung up and promptly turned the phones off.  X was distressed he was not able to speak with me and resorted to ringing me himself.

Section 60CC(3)(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;

1. The father has been unable to spend time with or communicate with X since July 2014. 

Section 60CC(3)(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;

1. The sub-paragraph is not relevant. 

Section 60CC(3)(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;

1. The effect on X of separation from his father needs investigation. 

Section 60CC(3)(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;

1. This sub-paragraph is not relevant. 

Section 60CC(3)(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;

1. This needs to be investigated in respect of both parents.  The Family Consultant recommended an independent mental health assessment of the parents, including an assessment of X’s relationship with each parent and his experiences of each of them. 

Section 60CC(3)(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

1. The Family Consultant said that X is a young and vulnerable child.  The school records indicate concerns about the mother’s behaviour towards X and her behaviour on changeovers.  Expert assessments need to be undertaken about X’s circumstances. 

Section 60CC(3)(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;

1. This sub-paragraph is not relevant. 

Section 60CC(3)(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother believes she is acting protectively towards X.  She sought a no‑time order.  It was not until the second day of the hearing that she indicated she would agree for X to have supervised time with the father at the (omitted) Children's Contact Centre if the Court was minded to order time.  I have concerns about her negative attitude of the relationship between X and the father and her lack of capacity to promote the relationship, no doubt due to her past history with the father.

2. School records indicate concerns about the mother’s attitude to the father.  She has expressed animosity about him.  She has not cooperated with the school about changeovers.  The school records indicate the father has been cooperative with school requests and behaved sensitively during his interactions at the school.  In respect of family violence, I have already referred to the family violence orders that have been made and the current allegations.

Section 60CC(3)(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;

1. These are interim proceedings, and further proceedings are likely. 

Parental Responsibility 

1. The presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that family violence has occurred.  The current family violence application has not yet been determined.  The family violence occurred in 2008 and 2009.  There is currently a final order for equal shared parental responsibility.  I consider it is in the best interests of X that such an order continue.

2. It is not in X’s best interests to spend equal time with each parent, nor is it reasonably practicable, due to the geographical distance between the parties.

3. Having regard to all the evidence, I consider it is in the best interests of X to have time with the father.  I am not persuaded that there will be an unacceptable risk of physical or emotional harm for him if he has time with him.  There are current protective orders in respect of any family violence issues between the father and the mother.  X will not be exposed to family violence because the changeover will occur at the school and at a public place, namely, the (omitted) Police Station. 

4. I consider it is in the best interests of X to spend substantial and significant time with the father and such time is reasonably practicable.  The father has proposed a reduction in his time on an interim basis.  He proposed that his time be supervised by his mother.  Whilst I do not consider this necessary for his protection, the father is prepared to agree to an order, and I will make that order.  I consider there is no evidence to indicate that the paternal grandmother is not an appropriate supervisor.  I am not persuaded by what the mother has said that she is not appropriate.

5. The orders I intend to make are inconsistent with the interim family violence order. Pursuant to section 68P of the Family Law Act, I will make an order indicating that the orders I make are inconsistent with the family violence order made on 1 August 2014; that my orders shall prevail; and the interim family violence order is invalid to the extent of the inconsistency, which is order 2 of the interim family violence order and order 5 of the interim family violence order.

6. I consider that it is an appropriate matter for the appointment of an independent children’s lawyer, given the allegations that have been made and given the real concerns I have about the mother’s mental health. An independent children’s lawyer’s input will assist X, the parties and the Court, and that person will no doubt arrange for expert assessment to be undertaken as soon as practicable. 

7. I will not order a family report because I will leave it to the independent children’s lawyer to arrange an expert report.  In due course, a family report may be appropriate.  I understand the mother has already been in contact with the (omitted) Children's Contact Service, but I will still make the order.

8. I have referred to order 2 of the interim family violence order, which will stay in force.  Order 2 provides that the father not directly or indirectly threaten, harass, abuse or assault Ms Cox or X.  The correct order is order 3:  not approach Ms Cox or X directly or indirectly, including by telephone, email, facsimile, letter, SMS, text message.  To make it clear to the mother and the father that the father will be spending time with X, it is inconsistent with order 3, not order 2. 

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Baker

Associate: 

Date:  2 April 2015