Galvan & Tate (No 2)
[2024] FedCFamC2F 416
•4 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galvan & Tate (No 2) [2024] FedCFamC2F 416
File number(s): BRC 11216 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 4 April 2024 Catchwords: FAMILY LAW – REVIEW of Interim Parenting Orders – the Applicant is not spending time with a non-biological child aged 2 years by virtue of Senior Judicial Registrar’s Order – the Applicant regards himself as the child’s ‘dad’ – where the Applicant and the child have a loving relationship – where the biological father has no interest in having a relationship with the child – where the Mother alleges she was subject to Family Violence – where the Family Consultant recommends supervised time – whether the child will be at an unacceptable risk of psychological or physical harm if she spends supervised time with the Applicant – where there is a danger that the child’s relationship with the Applicant will be lost if no time occurs prior to trial – whether the time, if ordered, should be professionally supervised. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (2019) FLC 93-924
Bringinshaw v Briginshaw (1938) 60 CLR 336
Eaby & Speelman[2015] FamCAFC 104
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1998) 166 CLR 69
Marvel & Marvel[2010] FamCA 240
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Murphy & Murphy [2007] FamCA 795
Napier & Hepburn [2006] FamCA 1316
SS & AH[2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 61 Date of last submission/s: 22 March 2024 Date of hearing: 22 March 2024 Place: Launceston – via Ms Teams Counsel for the Applicant: Mr Linklater-Steele Solicitor for the Applicant: Wilsons the Family Lawyers Counsel for the Respondent: Ms Kenny Solicitor for the Respondent: O’Neill Family Law ORDERS
BRC 11216 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GALVAN
Applicant
AND: MS TATE
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
4 APRIL 2024
THE COURT ORDERS THAT:
1.The Review be allowed in part.
2.Order 3 of the Orders made 1 March 2024 is discharged.
3.The Applicant spend time with X, born in 2021 ('the child'), supervised at the City B Contact Centre, each Wednesday for a period of two hours, from 9.00am until 11.00am, or such other two-hour period as directed by the City B Contact Centre from time to time.
4.The Applicant and the Respondent immediately do all acts and things, sign all necessary documents, and attend all necessary intake interviews to ensure that the time set out in Order 3 commences as soon as reasonably practicable.
5.The Applicant spend such other time with the child as agreed in writing with the Respondent.
6.The Application for Review filed 4 March 2024, is otherwise dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Introduction
This is an Application for Review filed by Mr Galvan (‘the Father’[1]) seeking to set aside certain orders made by a Senior Judicial Registrar on 1 March 2024 (‘the Orders’), including that the child, X born in 2021 (aged 2 years) (‘X’), have no time or communication with the him.[2] The Father also sought to set aside Orders 10 and 11.[3] In their place he seeks the following orders:
[1] Mr Galvan is not the biological father of [X]. The term is used for ease of reference in this Judgment.
[2] Order of a Senior Judicial Registrar in Galvan & Tate (Federal Circuit and Family Court of Australia Division 2, BRC11216/2023, 1 March 2024) Order 3.
[3] Order 10 states that the Applicant is restrained from publishing any image, photograph or video to any social media platform of pictures that contain the child without the written consent of the Mother. Order 11 provides that if the Applicant has posted any image, photograph or video to any social media platform he must do all acts and things necessary to remove the post.
Time with the Father
1. That the child spend time with the Father on three (3) occasions each fortnight with such time to be supervised by the Paternal Grandparents, the Maternal Grandmother, or any other person as agreed between the parties, for a period of two (2) hours as follows:
a) In week one (1), on a Wednesday from 9am to 11am and on a Saturday from 9am to 11am;
b)In week two (2), on a Wednesday from 9am to 11am; or
at such times be determined subject to the supervisor’s availability.
2. That for the purposes of Order 1, changeover will occur at [C Service Station] in [Town D].
FURTHER AGAIN AND IN THE ALTERNATE TO ORDERS 1 and 2:
3. That the child spend time with the Father on three (3) occasions each fortnight with such time to be supervised by the [City B Contact Centre], at such times to be determined by the Contact Centre.
Telephone communication
4. That the child shall communicate with their parents either by telephone, Skype, or FaceTime between 6:00pm and 6:30pm on each Tuesday and Thursday, and at any such additional time as the child reasonably request, and in relation to such communication the parents shall:
a) ensure that the child is available to receive the calls;
b)arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child miss the call from the other parent; and
c) ensure that the child has privacy during the calls.[4] (original emphasis)
[4] Application for Review of Mr Galvan filed 4 March 2024, Annexure A.
Ms Tate (‘the Mother’) asks that the Review be dismissed.
Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing.
Background
The background is largely set out in the in a ‘Statement of Agreed Facts and Issues in Dispute’, filed 15 March 2024, part of which I set out here:
14. The parties commenced cohabitation in 2019.
15. The parties separated for a short period of time [in late] 2020.
16. During the period of separation, the Mother was sexually intimate with the Second Respondent, [Mr E].
17. In 2020:
a. The Mother discovered she was pregnant;
b. The Mother informed the Applicant she was pregnant but there was a possibility he was not the biological father of the child; and
c. The Mother and the Applicant resumed their relationship.
18. The parties were married [in] 2022 and, after a relationship of approximately four (4) years, separated on a final basis in or around February 2023.
19. The parties are not divorced.
20. The Applicant has re-partnered since separation.
21. The Mother has re-partnered since separation.
22. The Applicant conducted a paternity test [in] 2023 without the Mother’s knowledge.
23. The parties participated in a mediation [in mid]-2023 and reached agreement with respect to parenting arrangements for [X].
24. At the time of the mediation:
a. The Mother believed the Applicant to be the child’s biological father;
b.The Mother was not aware the Applicant had taken a paternity test; and
c. The Applicant had not received the results of the paternity test.
25. The parties entered into a Parenting Plan at mediation [in mid]-2023 which provided for, among other things:
a. The parties to have equal shared parental responsibility for [X]; and
b. [X] to live with the parties on a week about basis with changeover to occur every Friday morning at 8am.
26. The Applicant received the paternity test results [in] 2023 that he was not the biological father of [X].
27. The Applicant disclosed the paternity test results to the Mother [in] 2023.
28. The Mother resigned from her job at [F Company] [in] 2023.
29. The parties engaged in a heated interaction [in mid]- 2023.
30. On 28 July 2023, the Mother informed, via her legal representative, that she did not agree to continue to honour the Parenting Plan having regard to the attitude of the Applicant and his family towards the Mother, and instead proposed that the Applicant spend time with [X] each alternate weekend while she considered what arrangements would best serve [X].
31. On 30 July 2023, the Applicant, via his legal representative, rejected the Mother’s proposal to reduce time and sought that the week-about arrangement continue.
32. On 11 August 2023, the Mother did not facilitate changeover of [X].
33.On 24 August 2023, the Applicant commenced urgent proceedings in the Federal Circuit and Family Court of Australia seeking, amongst other things, that [X] live with the parties on an equal week-about arrangement.
34. The Mother and the Applicant have not seen each other face-to-face since the incident [in mid]-2023.
35. The Applicant has not spent time with [X] since [mid]-2023, save for a short time during family report interviews.
36. The Mother contacted [X]’s biological Applicant, [Mr E], and he submitted to a DNA Paternity Test which confirmed, [in late] 2023, with 99.9% accuracy that he was [X]’s biological Applicant.
37. The parties agreed to a Family Report being conducted and provided joint instructions, via their respective legal representatives, to Family Report Writer, [Mr G], [in late] 2023.
38. The parties participated in Family Report Interviews with [Mr G] [in late] 2023.
39. On 21 November 2023, the Applicant filed an Amended Initiating Application with Court, joining [X]’s biological Applicant is [Mr E], to the proceedings as Second Respondent.
40. [In late 2023], [Mr E] released his Family Report.
41. To date, [Mr E] has not participated in these proceedings.
42. [X] has never met nor has any knowledge of [Mr E].
43. [In early] 2024, the Applicant enrolled in a Men’s Behavioural Intervention Program at the [H Centre].
44. The Applicant undertook hair follicle drug testing [in early] 2024 which returned a negative result for all substances [in early] 2024.[5]
[5] Statement of Agreed Facts and Issues in Dispute of Mr Galvan filed 15 March 2024.
As stated, on 1 March 2024, an SJR ordered that X not spend any time, nor communicate, with the Father.
The Father’s submissions
The Father relied upon the documents set out in his Outline of Case,[6] including a Tender Bundle.[7]
[6] Case Summary Document of Mr Galvan filed 15 March 2024 (‘Father’s Case Outline’).
[7] Tender Bundle of Mr Galvan filed 12 March 2024.
Mr Linklater-Steele, Counsel for the Father, submitted that that the Father poses no risk of physical or psychological harm to X. The Father does not deny that some of his behaviour towards the Mother has been poor — particularly his verbal abuse of her during a heated interaction between the parties at McDonald’s for changeover in mid-2023. He says that his behaviour was regrettable and out of character.[8] The Family Consultant referred to the incident in his report:
84. There was an agreement to drop off on the Friday at McDonalds. By that time, [Ms Tate] didn't want him coming to her house. She gave [X] to him and he was putting [X] in the back of his car, at the same time as he was still yelling at her, calling her 'fucking selfish'.
85. He concedes on this occasion that he was 'pretty heightened and I called her a selfish c...t, and she kept saying watch your mother and pulled her car in front of mine.'[9] (original emphasis)
[8] Affidavit of Mr Galvan filed 31 October 2023 [15].
[9] Family Report of Mr G dated [late] 2023 [84]-[85] (‘Family Report’).
The Father accepted that on two occasions his behaviour scared the Mother:
80.Of his temper, [Mr Galvan] said 'two times I have scared her, but not intentionally. I've never lost it at her'. There was a later argument they had at McDonalds when she 'uninvited me' to [X]’s party, of which he reflects 'I was pretty heightened and I called her a selfish c-u-n-t and she kept saying watch your f'’n mouth and she pulled her car in front of mine', this in reference to a handover of [X].[10] (original emphasis)
[10] Ibid [80].
Notwithstanding these admissions, the Father denied other allegations raised by the Mother and points to the fact that, notwithstanding allegations of family violence during the relationship, the Mother agreed to the Father having substantial time with X post separation, including equal time. He submitted that if the Mother had truly been concerned about his violent nature, she would not have allowed such frequent time to occur, even after she must have suspected that he was not X’s biological father. Further, at no time was it alleged that he has ever been violent or acted inappropriately towards X, although he accepts that the mid-2023 incident occurred in her presence.
The Father stated to the Family Consultant that he accepts that the Mother may have difficulty promoting a relationship between X and himself, given the incident.[11] Notwithstanding this, he believes his very strong relationship with X will survive the Mother’s reluctance to promote the same.
[11] Ibid [28].
In line with the Family Report recommendations, the Father accepted that his time with X be supervised, dispelling concerns about X being exposed to violent or other poor behaviour. His preferred position is that such supervision be undertaken by his parents.
He also submitted that there was no evidentiary basis justifying Orders 10 and 11 of the SJR’s Orders, preventing him from posting images of X on social media.
The Mother’s submissions
The Mother relied upon the documents set out in her Outline of Case.[12]
[12] Case Summary Document of Ms Tate filed 15 March 2024 (‘Mother’s Case Outline’).
Ms Kenny, Counsel for the Mother, submitted the Father’s abuse of the Mother in front of X cannot be merely dismissed as an aberration linked to him finding out that he was X’s biological father. This cannot be the case, as the Father knew of that possibility before the parties reunited and married. The Father’s reaction in mid-2023, was not a one-off incident but reflective of his behaviour during the relationship. The Mother’s experience of family violence, and the manner in which the Father revealed the result of the paternity test to others, still impacts her, leaving her very anxious at the thought of the Father spending anytime with X.[13] Ms Kenny highlighted the observations of the Family Consultant, who found that the Mother was subject to concerning behaviour within the context of an isolated existence:
116. I formed a view that [Ms Tate] was isolated, and dependent on [Mr Galvan]’s financial support, and that he was frugal and secretive is consistent with elements of his presentation.
…
126.There are question of family violence. Elements within the history imply that [Ms Tate] was controlled and isolated and that [Mr Galvan] was verbally abusive.[14]
[13] Ibid [18]-[20].
[14] Family Report (n 9) [116], [126].
Ms Kenny submitted, that the impact of the family violence affects the Mother’s ability to promote the relationship between X and the Father, particularly when she believes that the Father will denigrate her to X if he is afforded the opportunity. This increases the overall risk of X suffering psychological harm, as well as physical harm, if she spends any time with the Father. As such, it is better to effectively end the relationship now while X is young, so as to prevent the inevitable distress that would be created if the Father disengaged from her in the future — either following the trial or when his interest naturally peters out in the years ahead. The potential psychological, physical, and emotional harm to X all amounts to an unacceptable risk that cannot be mitigated with supervised contact.
The law
In Marvel & Marvel[2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
as has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).[15]
[15] Marvel & Marvel [2010] FamCA 240 [120] (‘Marvel & Marvel’).
In SS & AH[2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed the care to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.[16]
[16] SS & AH[2010] FamCAFC 13 [88].
Their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.[17]
[17] Ibid [100].
Of this, the Full Court in Eaby & Speelman[2015] FamCAFC 104 said:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[18]
20 Section 60B of the Family Law Act 1975 (Cth) (‘the Act’) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
[18] Eaby & Speelman [2015] FamCAFC 104 [19].
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.[19] Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). There are 2 primary considerations and 14 additional considerations set out in s 60CC. I have considered each of those sections when determining this matter, but I will only refer in these Reasons to those sections that are relevant to my determination in this case.
[19] Family Law Act 1975 (Cth) s 60CA (‘FLA’).
Parental responsibility
No order for equal shared parental responsibility was pressed, the presumption is rebutted, and such an Order would not meet X’s best interests at this stage of the proceedings.
X’s best interests: the s 60CC factors
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter, noting that Mr Galvan is not the biological father of X, and therefore only certain s 60CC factors apply.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[20]
[20] Mazorski & Albright [2007] FamCA 520 [26]; McCall & Clark [2009] FamCAFC 92 [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[21]
[21] Godfrey & Sanders [2007] FamCA 102 [36].
The Mother has a meaningful relationship with X. Although not her biological father[22], as I will address later in these Reasons, the Father also has a relationship with X that is meaningful to her.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[22] S60CC(2)(a) is not a matter that must be considered, because the Father is not X’s biological father.
It is my task to ensure that the ultimate parenting orders do not place X at an unacceptable risk of harm due to family violence, abuse, or neglect, or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s 60CC(2)(b) of the Act. This includes any risk of family violence, abuse, or neglect.[23]
[23] FLA (n 19) ss 4AB (definition of ‘family violence’); 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s 60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place a child at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[24] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[25] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[26] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s 65D by reference to the child or children’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[27]
[24] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198 [38]-[41].
[25] Isles & Nelissen [2022] FedCFamC1A 97 [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s 140.
[26] Isles & Nelissen (n 25) [83].
[27] Ibid [85].
The question before me is, therefore, whether X will, in the future (and on the basis of the untested evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[28] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[29] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised. Within the context of an interim hearing, that task is particularly difficult, given the inability of the Court to make findings of fact where the issues are in dispute.
[28] M v M (n 24) 77-78, at which their Honour state that ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘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’, and that ‘[t]he 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’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[29] Murphy & Murphy [2007] FamCA 795, [318]–[319].
The Mother’s concerns regarding the Father were summarised in her Outline of Case:
10. The Mother has grave concerns with respect to the Applicant’s view of the Mother and his conduct towards her since unilaterally undertaking a DNA Test [in] 2023 which revealed he was not the child’s biological father.
11. In summary, the Mother deposes to:
(a) The Applicant telling mutual friends, family and unknown third parties in the [Town F] community (which has a [small] population) about the paternity test results prior to informing the Mother about the results;
(b) The Applicant and his parents speaking loudly about the child’s paternity at [F Company] (the Mother’s place of work) so others could easily overhear, leading to the Mother feeling forced to resign from her position due to the anxiety, shame and humiliation caused by the Applicant and his parents;
(c)The Applicant verbally abusing the Mother at changeover (in the presence and hearing of the child) telling her: “I fucking hate you cunt You’re a bitch” and “That’s what you get for letting every cunt blow in you!”.
(d) The Mother being concerned for her, and the child’s, safety in the presence of the Applicant such that she felt it necessary to report his behaviour to the Police; and
(e) The Applicant’s lack of discretion regarding the paternity test results and his continued denigration of her which has resulted in the Mother being referred to as a “liar” and a “slut” in the [Town F] community (where the Applicant continues to reside and seeks to spend time with the child).[30]
[30] Mother’s Case Outline (n 12) [11].
Summing up her concerns, it was submitted:
17. In essence, the Mother’s concern is that the Applicant has an extremely negative view of her and will (either directly or indirectly) project those views onto the child, ultimately undermining the child’s relationship with her primary caregiver and placing the child at risk of psychological and emotional harm.[31]
[31] Ibid [17].
In relation to family violence during the relationship, it was submitted:
22.The Mother deposes to numerous instances of family violence and like behaviour exhibited by the Applicant during the relationship and post-separation, including (but by no means limited to):
(a) a volatile changeover [in mid]-2023 during which the Applicant, by his own admission, concedes he was “pretty heightened” and called the Mother a “selfish c-u-n-t”;
(b) the Applicant pressuring the Mother to be intimate after separation;
(c) the Applicant restricting the Mother’s access to funds during the relationship such that she was forced to ask her parents for financial assistance leaving her feeling isolated and controlled;
(d) verbally abusing the Mother during the relationship saying words to the effect of: “You’re fucked in the head. You’re fucking crazy”; and
(e) the Applicant throwing a book at the wall in anger when he was unable to deal with the child crying, leaving a large hole in the plasterboard (photograph contained at Annexure “T-03).[32]
[32] Ibid [22].
The allegations of the Mother are serious. Many of her allegations are denied, and it is not possible for this Court to make any findings of fact where they are disputed. The allegations cannot, however, be ignored. The Father also accepts that he was verbally abusive towards the Mother in the presence of X, and scared her on two occasions.
Ms Kenny also submitted that the Mother may not be able to cope with any time occurring with the Father, including supervised time — claiming that she said as much to the Family Consultant. Mr Linklater-Steele, however, referred to the paragraph 40 of the Family Report where the Mother’s anxiety relating to the Father’s time were set out:
40.She said 'if the court does make an order for a lot of nights, it stresses me out. It puts my anxiety through the roof, like makes me feel ill' and she became teary. She feels that she would have to put up with the way he had treated her in the past and 'might affect how she sees me and that that is acceptable'.[33]
[33] Family Report (n 9) [40].
The Mother appears to have been deeply impacted by the embarrassment of the paternity outcome being publicised by the Father, leading her to feel ostracized in a small community. The Father’s verbal attack upon her in in mid-2023 continues to resonate strongly with her. She is clearly anxious about him having lengthy overnight time with X, however, there is no clear evidence that her parenting will deteriorate if the Father has a small amount of supervised time with X.
The Mother also alluded to the question[34] as to whether or not X will suffer psychological harm if the Father’s interest in having a relationship with her wanes in the long term. The question arises, whether it is better to end his time and relationship with X’s now, rather than reinstitute a relationship that may inevitably fall away?
[34] Mother’s Case Outline (n 12) [29(a)].
This is a very important question that will need to be examined at trial. The Father must think deeply about his long-term commitment to X, particularly as his circumstances change. It would likely be psychologically harmful for X to have regular lengthy time with the Father prior to that question being properly considered and determined. Their current relationship needs to be maintained with small amounts of time until that question can be properly assessed at a trial.
The Family Consultant considered the Mother’s concerns and allegations, but ultimately concluded that X should be afforded the opportunity to have a relationship with the Father under supervised conditions. I agree. The allegations of family violence and other risk issues are serious, but I'm satisfied that that those risks can be ameliorated with professionally supervised time.
I also note that the Father has enrolled in a Men’s Behavioural Change Program,[35] which adds a small but further level of protection for X. This is particularly important based on the comments made by the Family Consultant about the Father’s abrasive nature:
127. Although [Mr Galvan] denies abuse, his manner can be abrasive as noted during points of stress during these interviews.[36]
[35] Father’s Case Outline (n 6) [34].
[36] Family Report (n 9) [127].
As to alleged drug use, the probability of X being exposed to the Father impacted by any substance is low under professionally supervised conditions. Further, he recently provided a clear drug test:
36. The mother further makes allegations against the father that he abused drugs during the relationship. This is denied by the father. Again, to alleviate any concerns of the mother, the father has voluntarily undertaken a drug test post the making of these allegations by her and the same which appears at annexure “G-06” to the father’s affidavit filed 22 February 2024. It is noted that the drug test was negative for all substances.[37]
[37] Father’s Case Outline (n 6) [36].
The spotlight of these proceedings is shining brightly on the parties,[38] and I am satisfied that X will not be placed at an unacceptable risk if the Father’s time with X is professionally supervised.
Section 60CC(3)(a): any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity
[38] Napier & Hepburn [2006] FamCA 1316 [82].
X is too young to express views.
Section 60CC(3)(b): the nature of the relationship of the child with each of their parents and other persons
I am satisfied that X has a strong relationship with the Father. The observations made by the Family Consultant of the Father and X, when she had not seen him for three months, are instructive:
89.[X] attended with her mother and her maternal grandparents, who cared for her during the interviews conducted with [Ms Tate].
90.She is a sociable girl, easily pleased and relaxed, and accepting of other people whom she didn't know, including this writer.
91.It was a long day for her and there was only one occasion noted when she became upset, probably due to tiredness. She is engaging and notices things around her, and her language for her age is commensurate. She can talk in small sentences and make herself heard.
92.She was responsive and attached to her mother. The process of seeing her with her father was a little difficult as [X] would not come to me and she had not seen her father for three months.
93.This was facilitated with the help of [Ms Tate]'s mother, who sat in the room whilst the observation of [X] with her father occurred.
94.[Mr Galvan] came into the room while [X] was busy doing some drawing on the other side. He sat on the couch and then called her name and [X] turned around and it took her several seconds before she realised who it was and she immediately moved closer to him, although not completely close, and he be interesting her in the toys that he had brought with him. It was only several minutes' time before they were playing happily together.
95.This continued until the end of the observation, which went for approximately 20 minutes. It was at the end of the day when [X] had been tired, but despite this she was animated and engaging with her father.
96.When it came time for him to go, [X] became distressed. [Mr Galvan] was appropriate in how he said goodbye to her, which was not to delay and to move quickly from the room after saying goodbye, however after he left the room, [X] continued to cry, saying 'I want my daddy'. She did so for several minutes.[39]
[39] Family Report (n 9) [89]-[96].
X’s reaction is understandable, given the extent of time she was spending with the Father and the affectionate relationship they had developed. The Family Consultant opined:
118.[X] presented generally as a happy and secure girl, with development commensurate with her age and an easy-going manner.
119.Although [Ms Tate] did not think that [X] relates to [Mr Galvan] as her father, it was clear in this assessment that she does. [X] recognised him, played with him happily, and cried copiously when he left, using the word 'daddy.'
120.Her concept is therefore that he is her father, as much as any child her age can conceptualise.
….
123.[X] presented as a secure and social child with a normal attachment to her mother, and developmentally typical.
124.She has a bond with her father despite a recent extended absence of contact recognising his quickly and responding to him closely.[40]
[40] Ibid [118]-[120], [123]-[124].
To prevent any contact between the Father and X may irreparably damage their existing bond. X is not yet three years of age. The time it will take for this Court to hear and determine this matter is likely to be no less than 12 months.[41] That is a very long time for a child of X’s age. If the Court ultimately orders time between X and her Father, with the existing Orders in place, the task of re-establishing that relationship will be harder and potentially create significant stress for X, as she would not have spent any time with him for nearly 2 years.[42] I agree with Mr Linklater-Steele, that to prevent any time between the Father and X now may seal the fate of that relationship, without the benefit of the Court considering the tested evidence at a trial. The Mother anticipates this outcome, as she professed to the Family Consultant:
97. [Ms Tate] was asked about her reaction to seeing him and whether it worried her that if he was out of the picture, it would be damaging to [X], but she said 'his behaviour and attitude and everything is more damaging'.
98.Regarding the absence of a father figure and asked whether that was relevant, she said that she thought so but then changed her mind and said no. She said 'in my mind, because she is so young, in a few years she is not going to remember him'. [43] (original emphasis)
[41] Ms Kenny advised during the hearing that it may be possible to have the trial commence towards the end of this year, although this was to some extent speculation. The trial Judge can then reserve for up to 3 months.
[42] The Father last saw X in mid-2023.
[43] Family Report (n 9) [97]-[98].
The existing relationship between X and the Father can be preserved with 2 hourly weekly supervised visits. The Family Consultant made a similar recommendation:
133.Pending such findings, I am of the view that [Mr Galvan]'s relationship with [X] should be supported in a supervised form.
134.If it can be practically supported, then three occasions of two hours each fortnight would be sufficient to support that bond.
Considering X’s relationship with the Father, to prevent any time between the Father and X at an interim stage could hardly be described as a ‘conservative approach’,[44] unless such time would place X at an unacceptable risk of harm. I do not accept that it will do so.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents or other person
[44] Marvel & Marvel (n 15).
If the Father’s time can be re-instituted now, X will likely feel less anxiety and stress than if it were to be re-instated following a trial in 12 months or so. If no time is ultimately ordered at trial, X may experience anxiety once that time ends. She will, however, still be very young, and with appropriate support will likely adapt.
Section 60CC(3)(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
There is concern that the Mother will not promote the relationship between the Father and X.[45] There is evidence, however, that notwithstanding X not spending time with the Father for 3 months, she was able to quickly re-engage with him.
[45] Family Report (n 9) [129].
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
I have dealt with this factor. The Father’s alleged behaviour towards the Mother is concerning if established at trial. The Father’s time will, however, be professionally supervised pending trial, and as such any alleged risk to X from the Father is removed.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
There are no existing Family Violence Orders although the father made comment that the police were momentarily involved in the matter:
32. Furthermore, despite the mother’s evidence at paragraph 56 of her Affidavit filed 20 September 2023 that she attended upon a Police Officer at the [City B] Police Station with respect to making an application for a protection order, there is no Protection Order in place as at the date of filing this Case Outline.[46]
[46] Father’s Case Outline (n 6) [32].
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant.
This is a complex matter. The Father is committing himself to be a feature of X’s life, notwithstanding the fact that he is not her biological father. This commitment will be tested in the years ahead. It would be cruel to continue his involvement in X’s life only to backout of that commitment in the future as his life changes. He needs to consider this deeply in the months ahead.
There is also the question as to whether the Orders should remain in place preventing the Father from posting images of X on social media.[47] There does not appear to be any evidence in the Mother’s affidavits justifying injunctive Orders of this nature. The Orders do not appear to offer protection to X,[48] but it may be that the Orders were regarded by the SJR as ‘just and convenient’[49] given that the Father was ordered not to spend time or communicate with X.
[47] Orders 10 and 11 (n 2) – It being noted the Father has complied with Order 11.
[48] FLA (n 19) 60B(1)(a).
[49] Ibid 60B(2).
There must be an evidentiary basis for making a s 68B injunction. I am, however, conscious of the delicate issues in play. The Father is free to take videos and photographs of X and show others, he just cannot post them on social media. The Mother is sensitive about members of her former community undermining her. Acting very cautiously and conservatively, given the Mother’s anxiousness and the remote possibility of others on social media, of whom the Father has no control, using the images to make mischief, I will keep the injunctions in place.
Conclusion
Considering all of the mentioned matters, in the context of an interim hearing on untested evidence, I find that it is in X’s best interests to reconnect with the Father through supervised time. That should occur at the City B Contact Centre. Neither party trusts the other, and to have a third party supervise the time will not allow for objective observation and reporting. Contact Centres are set up for children of X’s age and she is likely to feel comfortable in that setting. The trial judge will also be greatly assisted with the reports and information that will be produced from such regulated time.
The amount of time the Father should spend with X is a delicate question, when the question of the Father’s commitment to a long-term relationship is likely to be a focus of the trial. As such, a cautious approach should be adopted, and two hours per week, as proposed in the alternative by the Mother,[50] is the appropriate amount of time to order. Wednesday seems to be a day that suits all parties[51]. This will ensure that X’s relationship with the Father is preserved pending trial.
[50] Oral submissions made by the Mother’s Counsel 22 March 2024.
[51] The Father’s proposal seeks time each week on Wednesday’s and the Mother proposed time on Wednesday’s in the alternative.
As to the Father posting images of X on social media, I will retain those injunctions for the reasons stated.
I will not make any orders for telephone or virtual time. The Mother would need to manage such communication, inevitably leading to the Father and the Mother coming into contact — probably resulting in anxiety, stress and conflict for all concerned. An application for that type of communication is best left for trial.
I make Order’s set out at the commencement of these Reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 4 April 2024
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