Desmond & Yardley
[2020] FamCA 1062
•11 December 2020
FAMILY COURT OF AUSTRALIA
Desmond & Yardley [2020] FamCA 1062
File number(s): NCC 2504 of 2016 Judgment of: GILL J Date of judgment: 11 December 2020 Catchwords: FAMILY LAW – children - interim proceedings – unacceptable risk – where both parties alleges that the other poses an unacceptable risk to the child – where there are risks in both households - whether appropriate protections can be put into place to allow the child to have the benefits of relationship with the father without exposure to unacceptable risk – orders for the child to spend time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA Cases cited: Johnson & Page [2007] FamCA 1235
Jollie & Dysart [2014] FamCAFC
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Phillips & Hansford [2019] FamCAFC 165
SS & AH [2010] FamCAFC 13
Number of paragraphs: 79 Date of hearing: 9 December 2020 Place: Canberra Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Joplin Lawyers Solicitor for the Respondent: Bowral Legal Solicitor for the Other: Legal Aid ACT ORDERS
NCC 2504 of 2016 BETWEEN: MR DESMOND
Applicant
AND: MS YARDLEY
Respondent
LEGAL AID ACT
Independent Children’s Lawyer
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS, UNTIL FURTHER ORDER THAT:
1.Orders 1, 2, 3, 4 and 5 of the Consent Orders of 7 March 2019 made by Judge Tonkin are hereby discharged.
2.The child, X, born … 2012 shall spend time with her father as follows, unless otherwise agreed in writing:
(a)commencing 19 December 2020:
(i)on the third Saturday of each month from 11:00 am until 5:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time; and
(ii)on the Sunday that immediately follows the third Saturday of each month from 9:00 am until 3:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time.
3.The mother and the father are hereby restrained by injunction from:
(a)Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X and from permitting any other person to do so;
(b)Physically disciplining or striking X or allowing any other person to do so; and
(c)The father is restrained from bringing X into contact with
(i)The grandfather, Mr C Desmond;
(ii)Y; and
(iii)Ms E.
4.The parties are at liberty to re-list this matter at short notice.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Desmond & Yardley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The Applicant father in this matter is Mr Desmond and the Respondent mother is Ms Yardley. The father and mother commenced cohabitation in March 2011 and separated on a final basis in July 2014. There is one child of the relationship, namely, X, born in 2012. X lives with the mother, and has not spent time with the father since 13 January 2019, aside from a brief observation for the family report interviews in July 2020. This is despite orders being in place that provide for the father to have unsupervised time with X, including orders made in March 2019 that provided for ongoing unsupervised time with the father.
The central issue between the parties is that of unacceptable risk to X in the care of the other party. While allied to this is the question of the extent of benefits of meaningful relationships available to X with each party, this was very much a subsidiary consideration as each party focussed primarily upon risk. It was reasonable that they should do so, as on the evidence presented risk was the dominant and determinative of the s 60CC considerations.
The Applicant father seeks that the child live with the father and spend time with the mother. Alternatively, the father seeks that the child live with the mother and spend time with him for block periods during school holidays and one weekend per month from Saturday morning until Sunday afternoon.
The mother seeks that the child live with her and spend no time with the father. In the event that the Court were to allow time between the child and father, the mother seeks that the time be supervised at a professional contact centre (F Services) and consist of four hours once every two months.
Material relied upon
The Applicant father relies upon:
(1)His Application in a Case filed 4 September 2020;
(2)His Case Summary Document filed 13 November 2020;
(3)His Affidavit filed 18 January 2019; and
(4)His Affidavit filed 4 September 2020.
The Respondent mother relies upon
(1)Her Response to an Application in a Case filed 8 December 2020;
(2)Her Affidavit filed 8 December 2020;
(3)The Affidavit of the maternal grandfather filed 8 December 2020;
(4)Her Case Summary Document filed 8 December 2020; and
(5)Specific parts of the Tender Bundle prepared by the ICL and provided to the Court on 16 October 2020.
There was also a 62G family report prepared by Family Consultant N on 3 August 2020.
The parties have agreed to appoint a single expert, psychologist Mr G. It is anticipated that a report will be available from him early in the new year.
The approach to risk and interim proceedings
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In order to determine what is in a child’s best interests, the Court is required to consider the s 60CC considerations to the extent that they arise in a case. In Phillips & Hansford [2019] FamCAFC 165, Strickland, Ainslie-Wallace and Aldridge JJ explained at [43] that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.
The Full Court noted in Jollie & Dysart [2014] FamCAFC 149 that:
What the Act mandates is a “consideration“ — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved…
…Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests. In SS & AH [2010] FamCAFC 13 at [81], the Full Court held it is necessary to:
keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made
Despite this limitation, the Full Court in SS & AH [2010] FamCAFC 13 at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence.
As noted above, the issue of exposure to an unacceptable risk of harm formed the ground upon which the parties set their cases.
Consideration of risk of harm forms one of the two primary considerations, s 60CC(2)(b). The consideration is of:
The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration.
Issues of the consideration of risk arise on the making of assertions or allegations.
In cases such as this, involving assessing whether a child is at unacceptable risk of harm, the Court is to follow the approach taken by the High Court in the seminal case of M v M (1988) 166 CLR 69 where it was said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression…the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. (emphasis added)
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at [19] that:
“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”…..The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”
The consequence of this was said by the Court [21] to justify a deviation from the usual approach in litigation:
“Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child…the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”
This approach was further explained by the Full Court in Johnson & Page [2007] FamCA 1235:
the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
Further, in Johnson & Page, the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. (emphasis added)
In N and S and the Separate Representative (1996) FLC 92-655 (Fogarty J) (‘N & S’), Fogarty J observed (as approved in Johnson & Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page, the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In N & S, consistently with the article quoted above, Fogarty J explained:
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S, again as confirmed by Johnson & Page (2007) FamCA 1235, adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“….
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
The question remains whether, on the evidence as a whole, there is an unacceptable risk, a question that incorporates both the risk of an event occurring, and the risk of harm associated with such an occurrence. That analysis involves an examination of the factual matters put forward as salient to those questions. Where the issue arises in an interim hearing, as here, it occurs in the further context that the Court is unable to test the evidence as to the underlying allegations, yet, as noted above in SS & AH, the Court remains obliged to:
weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
The risks identified by the parties
In this case, both parties identified material suggestive of risk to X in the other’s household.
Evidence regarding risk in relation to the mother
The father identified that risks posed by the mother had become apparent from material produced on subpoena. The material produced on subpoena indicated that there has been significant involvement by Family and Community Services (“FaCS”) with the mother and X.
FaCS removed children from the mother’s care for a period of about five weeks in September 2017. Page 1 of the tender bundle refers to the return of the children to the mother, correspondence at May 2018 noting that FaCS casework had ceased but that supports were in place.
The mother accepts that at times the children have been at risk in her care, but asserts that she has “worked very hard to address these issues” and that she is willing to continue to engage with supports.
From August 2019 until October 2020, the mother’s brother, Mr H, lived in the mother’s home. The relationship has involved incidences of serious violence, and involved the mother and Mr H being jointly criminally charged in relation to an attendance at their cousin’s home. The mother says that Mr H would not leave her home at her request and that eventually her father moved into the home forcing Mr H out. Her father remains in the home to offer the mother support.
The mother also accepts that Mr H’s son, J, who attended at her home, behaved in a manner toward the mother’s children that she described as “concerning.” At page 316 of the tender bundle, J is reported as behaving in a sexualised manner toward the females in the house, and in a violent manner toward X.
In September 2018, officers from FaCS asserted to the mother than a close associate of hers, Mr K, presented a sexual risk to children. It is uncontroversial that leading up to that time Mr K had extensive involvement in and contact with the mother’s household.
Pages 272ff contain the FaCS records about the interaction. Although the records redacted in part references to “[Mr K]” not all were redacted. It is unclear why the Department redacted the references as context indicates that Mr K was not a person who has made a notification in terms of s 69ZW of the Act.
At the initial attendance of the FaCS workers on 24 September 2018, the mother indicated that she did not accept that Mr K was a risk, but that she would exclude him form the home.
A further attendance occurred on 25 September 2018. Although FaCS asserted that they had substantiated abuse by Mr K (whatever that may mean), the mother did not accept that he presented a risk, he having been intimately involved in the raising of the children from time to time. Despite this there is no indication that the mother allowed Mr K to have any contact with the children, a position that firmed when the mother and her current partner, who were then separated, reconciled in October 2018.
At p 285 of the tender bundle L Services notes on 20 September 2018 that the mother is acting protectively re sex abuse risk. This appears to predate the FaCS attendance regarding Mr K, but was submitted to correlate to that intervention. This remains unclear.
The mother says, and corroborates that she has:
(1)Completed a Circle of Security parenting course in May 2019;
(2)Engaged with a programme run by L Services, Brighter Futures, exiting the programme in March 2020;
(3)Caused X to attend upon a paediatrician in October 2019 and June 2020, and to obtain an ultrasound in April 2020;
(4)Caused X to attend upon a sexual assault counsellor; and
(5)Engaged with and obtained appropriate mental health support, attending upon psychiatrists, obtaining a fresh diagnosis of ADHD and Bipolar Disorder, along with effective medication that has seen an improvement in the mother’s mental health, observed by her psychiatric nurse in 21 April 2020.
Page 434 of the tender bundle shows the mother’s attendance upon a psychiatrist in July 2018, noting a chronic major depressive disorder, partially under remission, and ADHD. Medication was recommended. Page 442 showed attendance upon a further psychiatrist in May 2019, with a change in medication. Page 448 is a letter from the mother’s psychiatric nurse, asserting that (inconsistently with the provided records) the mother’s diagnosis was confirmed as Bipolar Disorder and ADHD.
The father notes that X has missed substantial amounts of school, referencing a letter from the school to the mother from June 2020 regarding X’s lack of attendance, at p 470 of the tender bundle. It was noted that on her medications the mother had stabilised. The mother appears to be currently engaged with the school.
Evidence regarding risks in relation to the father
The ICL identified six risk issues flowing from the father (which were adopted by the mother):
(1)Risk of sexual abuse flowing from reports by X that the paternal grandfather (who is on the child sex offender register) hosed X on the “fanny”;
(2)Risk of sexual abuse flowing from reports by X that her step sister, who is one year older than X, Y, behaved in a sexually inappropriate manner toward X when X last spent time with the father in January 2019;
(3)That when X last spent time with the father in January 2019, the father struck her so hard on her bottom that she could not sit down;
(4)That when X last spent time with the father in January 2019, the father bit X after X and Y had bitten each other;
(5)That when X last spent time with the father in January 2019, the father bribed X with ice cream so that she would not report his violence to the police; and
(6)That when X last spent time with the father in January 2019, X observed the father punching his partner in the face.
The mother alleges that, subsequent to this visit to the father the mother observed X’s “behaviour to regress including wetting herself and an increase in her sexualised behaviour.” Despite the mother’s assertions that the bed wetting commenced or corresponded with X’s visit to the father in January 2019, the bed wetting was occurring at a time proximate to Mr K’s departure from the scene, the bed wetting being reported by the mother in October 2018, months before the relevant visit to the father.
At this stage, little can be drawn from the bedwetting, other than that the mother’s reliance on bedwetting as indicative of issues in the father’s home does not bear weight, given it predates the relevant time.
Of greater difficulty are the records as they pertain to X and Y. At pages 157 and 187 of the tender bundle, Y is reported as the instigator of sexualised contact between X and Y, Y reportedly telling X to “sex me,” and that Y had touched X’s vagina.
Further, the FaCS records assert that Mr D Desmond, Y’s uncle had previously sexually assaulted Y in October 2018.
The FaCS records also contain the material alleging violence visited by the father upon X, and upon his partner.
These require reading in the context of the father’s affidavit of 18 January 2019. In the father’s affidavit, it was X who behaved in a sexualised manner toward Y, and who was the instigator of sexualised interaction.
Further, the father’s affidavit material sets out different descriptions both in relation to smacking of X and biting, which are not, on his description, examples of abuse of X.
Assessment of risk
Noting the principles set out above, in a context of contentious material that is unable to be tested at interim hearing, it is necessary to consider the risks to X.
Amongst risks of exposure and subjection to family violence, and risks flowing from parental incapacity, the sexualised risks featured predominantly in each parties’ case.
It appears to be uncontroversial that X has been involved in sexualised contact with Y in the father’s home in January 2019. It remains unclear whether X or Y was the instigator. That lack of clarity raises the question of whether X is being exposed to sexual risk in the father’s home because of sexualised behaviour on the part of Y, or whether X has been exposed to sexualised activity in the mother’s home that she has then exposed Y to. There is a basis for supporting either possibility (or both).
The report as contained in the FaCS records, of X asserting that Y was the instigator, coupled with material suggestive that Y has been the subject of sexual abuse, supports Y presenting a risk to X. Within the father’s household this remains a source of potential risk. The father’s affidavit, asserting X was the instigator, coupled with material suggestive that X has been exposed to Mr K who, allegedly, has engaged in sexual abuse of other children, support X having been at risk in the mother’s home sexually (although it appears not at present). This is further supported, at least in terms of X having inappropriate exposure, in X’s claim to the family report writer that she and Z (Z is X’s half-sister, and is in the mother’s household) watched YouTube videos of ‘naked musicians.’
On neither case is it the parent who is identified as the source of the risk, but rather the circumstances that they expose X to in their parenting.
If Y was the instigator, the factors pointing to a potential particular sexual risk in the father’s household remain in the event that X is exposed to Y.
Conversely, the factors pointing to a particular sexual risk in the mother’s household do not appear to be current while Mr K, and while J are excluded from the home.
However, the risks are broader. In the father’s care, there is a potential sexual risk if X is exposed to the paternal grandfather, and unresolved risks in relation to the contested smacking and biting allegations, and the allegation of being exposed to the father assaulting his partner.
In the mother’s care, where the mother concedes historical risks that appear to have related to her lack of capacity (she asserts by virtue of previously improperly managed psychiatric issues), there remain unresolved questions of risk. The mother points to incremental improvement in her capacity. In the face of conceded previous risk to X, the extent and stability of the gains remains controversial.
X faces no risk free option at present.
Benefits in the two households
The parties placed some reliance upon the recently prepared family report. That report, perhaps surprisingly, noted at [94]:
X presented as a healthy, confident and cheerful child, who interacted with warmth and affection with both her parents.
X also expressed a strong desire to spend time with the father and:
She and her father interacted in an affectionate, comfortable manner during the observation session, and X told her mother after the observation that she misses him.
In relation to the mother, the reporter noted the adverse consequences of X’s sudden removal from the mother, and that:
It appears that X’s needs are currently best met by remaining living with her mother, provided that Ms Yardley maintains her mental health progress and child-centred lifestyle, and adheres to court orders.
It remains that these observations are contentious at this interim stage. They, however, point to potential benefits in each household.
The balance of the risks between the two households mean that the current nature of the risks in the father’s household, as opposed to those in the mother’s household that appear to have abated, preclude there being a change in residence.
However, the issue of time with the father remains. There are strong reasons in favour of orders that provide for X to have time with her father. The observations of the family report writer point to benefits for X despite the limited time that she has had with him over the past few years. Further, this is a case where the Court will be called upon to resolve competing cases of unacceptable risk. One of the benefits for X of meaningful relationship with the father is that, if the risks are ultimately determined to be unacceptable in the mother’s household, X then has the prospect of alternate residence with a parent with whom she has a relevant and current meaningful relationship. That is, fostering the relationship between X and the father mitigates risks to X in the mother’s household in the event that such risks are identified at final hearing.
Protections
As identified earlier, there are six matters said to point to risk in the father’s care, that centre around allegations flowing from exposure to the paternal grandfather, Y, excessive, violent discipline by the father, and exposure to conflict and violence between the father and his partner. The mother seeks that there be professionally supervised time, if time is to be ordered at all.
It is unclear whether there would be an adequate supervision facility practically available, noting the complexity and difficulty that is added by the distance between the parties where the mother lives in B Town, NSW and the father in M Town, NSW. This uncertainty means that there could be no confidence that time could take place if it is subject to professional supervision.
Although the ICL identified that supervision may provide X with a greater degree of comfort in transitioning the time with the father, where it has alleged that he has either hurt her or failed to protect her from harm, X’s reaction to the father in the assessment with the family report writer points away from this being a significant need for X.
The question then remains as to whether appropriate protections can be put into place to allow X to have the benefits of relationship with the father without exposure to unacceptable risk.
The risks of exposure to harm from exposure to the paternal grandfather, Y and to conflict between the father and his partner are removed if X is not brought into contact with those persons. This points to a resolution by which the father would not be able to bring X into the family home.
The risks posed by the allegations of excessive discipline are mitigated if the father is restrained by injunction from physically disciplining X, and further if the periods of time that X is in his care are shortened.
The father, during submissions, indicated that, under such circumstances, he had capacity to spend time with X in the B Town region, structured so that he would spend time with X on a Saturday and Sunday one weekend per month. This acts as a sufficient protection against the risks alleged to arise with the father, and, at the same time, gives X the benefit of time with him that is supportive of her relationship with him. Orders should be made to such an effect.
Those orders should be buttressed by injunctions preventing the father from bringing X into contact with the relevant persons. There should also be injunctions in place preventing either party form physical discipline of X, and directed to preventing the parties from denigrating each other in X’s presence.
While there have been in place orders for telephone time, and further orders are sought by the father for such, the current abyss between the households renders this impracticable in the short term, and of dubious benefit to X when she has spent so little time with the father. The situation may change following X spending further time with the father.
In making these orders, it should be noted that there is a significant history of orders not being complied with for the father to spend time with X. If a party seeks to depart from these orders the onus is on that party to make an application to do so and to seek a relisting. If a party is non-compliant then an application for enforcement will be listed as promptly as the business of the Court allows.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 December 2020
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