Ganem and Ganem (No. 4)

[2013] FamCA 377

FAMILY COURT OF AUSTRALIA

GANEM & GANEM (NO. 4) [2013] FamCA 377

FAMILY LAW – CHILDREN – Interim Parenting – Consideration of the best interests of the child – Consideration of 60CC factors –  Where there is evidence of family violence – Where, on the evidence before the court, it was determined that the father spend supervised time with the child.

Family Law Act 1975 (Cth) ss 61DA; 65DAA; 60CC; 61C

APPLICANT: Ms Ganem

RESPONDENT: Mr Ganem

INDEPENDENT CHILDREN’S LAWYER: Ms Bedford

FILE NUMBER: SYC 931 of 2012

DATE DELIVERED: 17 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Siggins

SOLICITOR FOR THE APPLICANT: Mason Mia & Associates

THE RESPONDENT IN PERSON: Mr Ganem

SOLICITOR FOR THE INDEPDENT CHILDREN’S LAWYER Ms Bedford

Orders

1. I note that Orders 5, 6, 8 to 13, inclusive, made on 24 April 2013 shall be continued.

2. That Order 7 made on 24 April 2013 is hereby discharged and, in lieu thereof, I order that the father have supervised time with the child fortnightly, at such times and such places as the S Contact Service, Town T, New South Wales may determine, provided that at all times the time the child spends with the father is supervised and subject to the father paying for and arranging the costs thereof.

3. That the mother be responsible for the child to travel to and from such visits, provided that the reasonable costs thereof are paid for by the father.

4. That the mother cooperate with the father in relation to the child spending time with the father in relation to these orders and that she do all acts and things to facilitate compliance with these orders, including but not limited to, making the child available for such visits with the father.

5. That leave is granted to the father or the independent children’s lawyer to relist this matter, upon seven (7) days written notice, to make an order in relation to an alternative supervision centre if another one can be found that is suitable.

6. That pursuant to section 65DA(2) 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.

7. That the costs of the parties are hereby reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 931 of 2012

Ms Ganem

Applicant

And

Mr Ganem

Respondent

REASONS FOR JUDGMENT

Introduction

1. The reasons were delivered orally.

2. This matter comes before me today for the consideration of what are the appropriate parenting orders to put in place, pending the final determination of this matter.

3. Ms Ganem, (“the mother”), seeks orders that she have sole parental responsibility for the child, K; that K live with her and that the father either have no contact with K or, alternatively, spend supervised time with the child once per month.

4. Mr Ganem, (“the father”), seeks orders that he and the mother have shared parental responsibility for decisions in relation to the long-term care, welfare and development of K; that K live with her mother and spend time with him every weekend from Friday evening until Sunday evening and for half of the school holidays and telephone access for half an hour each weekday.

Background

1. The matter was before me on 24 April 2013 when, on short notice, the mother sought a recovery order in relation to K, who at that time was with her father.  On that occasion I made interim orders, until today, that K live with her mother; that the father have telephone contact with her twice per week for 15 minutes and that otherwise the father be restrained from coming into contact with K.

2. The matter came before me first on 5 March, by way of the first day of the Less Adversarial Trial.  At that time there was before me a Child Responsive Program Memorandum prepared by Ms Q, Family Consultant.  Ms Q said in that memorandum that she was of the view that K was clearly far too young to determine her own needs and safety requirements but formed the view that she had missed her father and that, therefore, as an interim measure, supervised time with her father ought to be considered as a matter of priority.  On that occasion the mother indicated to the court, that in the light of Ms Q’s views, she also thought that supervised time with the father would be appropriate.  The father did not agree and did not take up the offer of supervised time.

3. The mother is presently aged 48 and the father 52 and each is in good health.  

4. They commenced cohabitation in February 1991 and married in April that year.

5. They separated on 5 May 2010 and were divorced in August 2011.

6. There are three children of the marriage: G, who is now 20, J, who is now 18 and K, who was born in December 2006 and is now aged six.  Both G and J have sworn affidavits that have been filed on behalf of the mother and I will return to those shortly.

7. At the time of the first day Less Adversarial Trial on 5 March 2013 K had not seen her father for a significant period of time, being a period of some 15 months.  Since the separation she had spent some four to five occasions with her father overnight, but that was all. 

8. K attends a local school in Town L and was described by Ms Q as a talkative and engaging little girl.  Ms Q noted that K clearly expressed her love for her mother and that it was evident that she loved and admired her older sister, G.  K was also noted to speak affectionately and in detail about her father and said that it would be okay to see him. 

9. One of the reasons for the father not seeing K for a significant period of time prior to 5 March 2013 was as a result of an apprehended domestic violence order.  Pursuant to incidents that occurred in January 2012, an Ex Parte Apprehended Domestic Violence Order was made by Local Court on 6 February 2012.  A Final Apprehended Domestic Violence Order was made by that Court on 13 April 2012.  The protected persons were the mother and the three children, the defendant was the father.  The father took that matter on appeal and on 6 August 2012 the District Court of New South Wales dismissed that appeal.  The orders under the Apprehended Domestic Violence Order ceased to have effect on 12 April 2013. 

10. On 23 April 2013 a further application for an apprehended violence order was before the Local Court.  On that date the Local Court declined to make a further order.  At that time K was at her home, which is at Town U, in the care of her brother J. 

11. Although there are differences between the versions given by the mother and father, it seems to be not in dispute that the father left Town L went immediately to Town U and removed K from the home.  It was, he said, his intention to spend five days of the holidays with K.  He did not discuss this matter, in any way, with the mother prior to doing so and, it emerges from the affidavit of J filed 14 May 2013, did so over the apparent objection of J.  The father then failed to respond to texts and telephone messages the mother left him, stating that he had not received them.

12. In the event, when the matter came before me on 24 April, I ordered that the child K be returned to her mother and, in order to ensure that that took place, made a recovery order.  On that day I made directions for the parties to file affidavits with the intention of today making interim parenting orders, after having given both parties the opportunity to put appropriate material before me.

Relevant legal principles 

1. The ultimate interests to be taken into account in parenting proceedings are the interests of the child. In doing so the court is obliged to take into account the presumption in favour of equal shared parental responsibility imposed by section 61DA of the Family Law Act, subject to the court being satisfied it would not be appropriate when making an interim order for that presumption to be applied. If the presumption does apply the court is then compelled by section 65DAA to consider whether the child should spend equal time or substantial and significant time with each parent. In doing so the court is required to take into account the considerations set out in section 60CC.

2. Section 61DA(2) says that the presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Family violence is given a wide definition by the Act and includes verbal abuse. Section 61DA(4) also provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared responsibility for the child.

3. The mother’s affidavit filed 14 May 2013 sets out a history of verbal abuse and threatened violence.  She says that the father regularly said to her words, “If I punch you, I will smash your face so that nobody would recognise you.”  The parties were having regular arguments.  Prior to separation the arrangement was that the mother and the children were living at Town U, and the father was living and working in Sydney during the week and returning to home at the weekend. 

4. The mother gives evidence that the father was a harsh disciplinarian for the children regularly saying things to them such as, “You are dishonourable children” and “You are stupid…”.  She says that on a number of occasions he had said to J, “You are rubbish!”  “You are not my son!” “You are worthless!”  The mother describes occasions when the father punched and kicked him.  In relation to games of sport, when the team lost, the mother says that the father said to J, “you are a loser” or “your team is a bunch of losers.”

5. The mother describes an incident on or about 17 February 2011 when she permitted J to dye a small section of his hair, behind his ear, that he had grown long.  The mother describes an angry incident where, once again, the father threatened to smash her face “so that nobody would recognise you”.  She says she called out the words, “Please help me!”.  J was present, watching the incident from another room.  He apparently later said, “[J] is not my son anymore.”

6. In relation to G, he began to accuse G of being sexually active, saying words to her, “You are worse than a toilet for men to use”.  “You are a prostitute!”.  “If I see you out anywhere, I will drag you by the hair and smash your face in.  It doesn’t matter where you are!” and “You are no longer my daughter.”  Notwithstanding this, G seems to have done remarkably well at school, being a prefect and a school captain at her school.  Both the mother and G say, in relation to that, the father did not attend any school functions with her, which would no doubt have been a significant and important part of her life and recognition of her achievements.  Indeed, G gives evidence in her affidavit filed 14 May 2013 that when she informed her father she had been made school captain in 2011, her father said to her, “Why would they give it to a rubbish girl like you?  You don’t deserve it.”  She confirms that the father often said to J, “You are worthless rubbish” and “You are not my son”.

7. Both the mother and G said that in mid-April 2011 G went to a hotel in Town L for a few hours.  The father then, shortly thereafter, took up this issue with the mother and G, alleging that she had picked a man up at that hotel and slept with him.  At that time G was in the car.  The evidence from both is that the father violently took the keys from G and said, “You are forbidden to leave this house.  If you do I will drag you across town by the hair and smash your face”.  “I’m not scared of the police and I don’t care what anyone thinks, because to me you are worthless.”  She then says as a result of that incident she completely shut down and rarely left the house, except to go to school, missing all her friends’ eighteenth birthday parties.  She says that her father has only spoken to her on two further occasions.

8. She also describes an incident on 13 August 2011, when she was leaving to go to a chemistry lesson and her father tried to stop her, alleging that she was going to see boys, that the father then threatened her with a crowbar and threatened to attack the car with the crowbar.  

9. The father, in his submissions, denies these allegations.  It was put by counsel for the mother that these allegations were unanswered in the evidence.  Because of the speed with which this matter has come on for hearing, I made an order that each of the parties file and serve the affidavits within a relatively short period of time.  Neither had the benefit of seeing the other affidavits before they filed theirs.  In those circumstances, I do not accept the proposition that the allegations are unanswered because the father has not received the affidavits in time to prepare a response.

10. I do note that similar allegations had been made in earlier affidavits to which a response could have been made.  Nevertheless, I proceed on the basis that the father puts these matters in issue.

11. It is the best interests of K that are paramount.  However the evidence of the mother and G is sufficient to establish that there is a significant risk of abuse; particularly verbal abuse, if K were to spend substantial time with her father.  There is evidence that family violence has occurred consisting of actual violence but especially abusive and threatening behaviour. 

12. That evidence is sufficient to establish, on an interim basis, that there are reasonable grounds to believe that the father has engaged in abuse of a child, who was at that time a member of his family, and family violence within the meaning of section 61DA(2). This is an interim hearing. The parties have not had the opportunity to call all the evidence which they wish to bring. In particular, although a family report is in the process of being prepared, it has not yet been received. It is necessary to put in place parenting orders until the final hearing and they can only be based on the evidence before the court. The father’s conduct may well be as he states it to be but, for the purposes of this hearing, the evidence called by the mother, if accepted at a final hearing, is sufficient to raise a substantial risk to K. It is in K’s interests to be protected from that possible risk pending a final determination of all parenting issues.

13. It is evident from the affidavits of the parents that there are fundamental difficulties between them in relation to the parenting of K and personal difficulties between them. Having regard to those difficulties, the interim nature of this hearing and the risk previously indentified, I am also of the view that it would not be appropriate in these circumstances for the presumption raised by section 61DA to apply.

14. In those circumstances, therefore, it is not necessary to consider the application of section 65DAA.

Section 60CC Primary Considerations

1. Pursuant to section 60CC(2), the primary considerations to be taken into account are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence.  In applying those two considerations, greater weight is to be given to the second. 

2. K was unilaterally removed from her mother on 23 April this year.  The mother had been the primary care giver of K throughout her life, K had not seen her father for some 15 months and not had significant contact with him for some time prior to that.  The parties give differing evidence at to the effect of those actions and the time spent with her father.

3. The mother says that since then K has had nightmares and has awoken crying saying she had dreams that people took her, that there were people coming to the house.  She has become more irritable and more easily reduced to tears.  She had previously been a very happy child and now is very unsettled.  She is fearful that K will become increasingly confused over what she has to do and making comments to please her father. 

4. G says that on 12 May 2013 she returned home to Town L.  At about 11 o’clock in the night, long after K had gone to her bed, she heard K screaming out, “Mum!” “Mum!” from the mother’s bedroom.  K was hysterical and evidently terrified of something.  She says that she had never witnessed that uneasy sleeping pattern and nightmares previously and she herself describes nightmares that she has had about the father.

5. The father, on the other hand, says that K enjoyed her time with him and did not want to return to her mother.  He has annexed to his affidavit an unsigned statement of a person described as V.A. Daniels who described K having a lovely time with her father.  I am unable to give any weight to that statement.  It is unsigned, it is unsworn and speaks largely in conclusional terms. 

6. The father, in his submissions, said that the material at paragraph 117 of the mother’s affidavit demonstrated that his version of events is correct because in that paragraph the mother described K as acting out of character.  The mother said, “She was hesitant to come back to me and crying.”  The father says that, therefore, is evidence and an admission that K did not want to return to her mother.  Taking the whole of the evidence in context, it seems to be that what the mother is describing is a child acting out of character, rather than not wanting to return to her mother.

7. In his submissions, the father said that the child has seen sexual things and has been locked in a room to enable her mother to engage in such things.  The evidence in support of that is the father’s affidavit filed 15 May 2013 at paragraph 19 that K said to him in the car while they were travelling to Sydney, “When we were in [Town W] we stayed at a hotel.  I saw Mum and [Mr Z] naked in bed, and they were doing things.  I am scared when [Mr Z] is around.”  This is a reference to Mr Z, who has sworn an affidavit filed 14 May 2013 by the mother.  The evidence is that he is in a casual relationship with the mother.  He agrees that on a trip to Town W the mother, K and Mr Z, slept in the one room.  Mr Z says that the mother and K slept in a king bed and he slept in a single bed. 

8. At paragraph 19 of the father’s affidavit the father then said to K, “Has anything else happened?”  And K is said to have replied, “Yes, once we went with mum to [Mr Z’s] house.  It was his daughter’s birthday.  They had the party in a big shed and everyone was drinking.  There was really a loud music [sic].  That night I slept in his daughter’s room.  I was crying that night, because I didn’t want to be there.  Mum came and told me to shut up and smacked me on the back.”

9. Whilst it would be very significant if the mother and her partner were engaging in sexual activity in front of K, it is not the same thing as going to a party where there is drinking and loud music.  I appreciate that to the father they may be similar activities, but they are significantly different. 

10. An important matter raised by the father was what he said was an injury to K’s chest that occurred when she was in Town W with Mr Z and her mother and fell off a bike.  When the matter was before me, on 24 April, the father was very concerned about the possibility of a broken rib, such was the pain and discomfort that K was in.  He insisted that if K was to be returned to her mother, she must urgently have a chest x-ray as he was concerned she was significantly injured.  In that regard, the mother says that in the course of the telephone time that the father had with K, he asked her on more than one occasion about the x-ray and that he was scared that K had a broken rib or “a fracture of one of your ribs”.  The father has annexed to his affidavit a letter from Dr BB, which is undated, in relation to K and says:

    This is to certify that miss [K], age 6 years, presented to me with her father complaining of chest pain.  Her check up was not very clear and has been referred to the Chest Xray. (reproduced with errors)

    This is a remarkably unhelpful diagnosis from a doctor. 

1. Pursuant to the orders that I made, the mother took K to have a chest x-ray, and the results indicate that there was no abnormality or illness whatsoever.

2. Whilst it is neither possible nor desirable to make any final findings of fact at an interim hearing, the allegations of the sexual conduct in front of K, while serious, need to be tempered by what seems to be, on the present evidence, an exaggeration of the chest injury said to have been suffered by K and denied by her mother.  The statements of K, as relayed by her father, are the only evidence of this conduct.  On the other hand, there is, as I have found, a significant and reasonable risk that there has been family violence.  I then need to weigh this up against the benefit of the child having a meaningful relationship with both parents.  The phrase, of course, is “a meaningful relationship” and not “a relationship”.

3. These factors would indicate that K should live with her mother but spend time with her father.

4. It was Ms Q the family consultant’s view, supported by the independent children’s lawyer, that K still had a relationship with her father that should be developed and that she had missed him.

Section 60CC Additional Considerations

1. I now turn to the other factors that need to be considered by section 60CC.

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. K is very young and although both parties have given some evidence of her views, I do not think it appropriate to give any weight to them.  I note that Ms Q is also of that view.

The nature of the relationship of the child with each of the child’s parents and other persons

1. It is next necessary to explore the relationship of the child with each of the parents.  The mother and G describe K as having a close and loving relationship with her mother, which is not surprising given that she has been the primary caregiver.  J, their brother, is still part of the household and G returns regularly.  There is no suggestion, other than that each of them get along very well with each other and love each other.

2. The evidence of the mother and Mr Z is that there is a relationship between them, which is managed in such a way as to be appropriate to the needs of K in all of the circumstances. 

3. K’s relationship with her father is necessarily strained because of the lack of time that he has spent with her over the last 15 months.  It seems necessarily to me that that restraint has been exacerbated by the events that took place in April 2013.  The issue there is not so much whether or not K should have spent time with her father, but the manner in which it was done in the circumstances.  It cannot have been in K’s bests interests to be taken from her home and her mother, without warning or without preparation and without any knowledge of what was to occur or when she would be returned.  It is very significant that the father did not seem to understand the impact that such unilateral action would have upon K.

4. The Court is concerned with the best interests of the child not what the parents may regard as their rights.  A young child would be upset by being suddenly and without warning removed from the home where she has resided from the care of her brother, who was charged with it and from the mother with whom she has spent almost her whole life and being cared for by her.  Therefore, the relationship of the child with her father is necessarily of a more strained and tenuous kind than the relationship with her mother. 

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child to spend time with the child and to communicate with the child

1. The next issue to be taken into account is the extent to which each of the children’s parents has taken the opportunity to participate in long-term decisions about the child, to spend time with them and communicate with the child.  Whether it be through his own fault or because of the apprehended domestic violence Order is not the point.  The fact is that there has been a significant failure on the part of the father to take these steps to spend time with the child or to communicate with her or to seek to facilitate those things, notwithstanding the apprehended domestic violence order.  It is significant too, that at the first day Less Adversarial Trial, the opportunity to spend time with K was offered to the father, who informed the Court on more than one occasion that he was prepared to pass through the eye of the needle to spend time with his daughter.  He did, however, fail to take up the opportunity of spending supervised time with her.  That was an opportunity for him to communicate with K and to spend time with her which he failed to take up.

2. It is clear that the mother has taken whatever steps she can to fulfil her obligations to maintain the child.  There is some evidence to suggest that the father has not been paying child support promptly.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child with whom she has been living

1. The next issue to consider is the likely effect of any change in the child’s circumstances, including the effect of separation from the parents or other children.  As I have said, K has a close and loving relationship with her mother and her siblings.

2. The father remarried in 2011 and has a child from that marriage.  There is no evidence before me as to the circumstances of the house at which K would spend the weekends or, more particularly, any information about other persons that might reside in that house including, of course, the husband’s new wife.  There is no affidavit from her setting out her views in relation to a child spending each weekend with them, the impact of that upon their other child, who was likely to be looking after the child at the weekends and her attitude towards the child and the child’s relationship with her mother and her other parents.

3. In my opinion, it is more likely than not, given the lack of contact between K and her father for some time, that it is likely to be upsetting to her, given her age, to have a substantial and significant change in her living circumstances, including a separation from her mother for each weekend, every week.

The practical difficulty and expense of the 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. There seems to be no practical difficulty and expense with the parents each maintaining the relationship with the child.  At the conclusion of giving these reasons in court the father informed me that he could not afford to travel to Town CC to exercise the supervised time.  Accordingly, I gave him leave to relist the matter if another closer or less expensive contact centre could be organised.

The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of each of the child’s parents and any other person to provide for the needs for the child, including emotional and intellectual needs is significant.  The evidence of the mother and G would indicate that the father has difficulty in appropriately providing for the emotional needs of the children.  The father disputes that and that is a matter that is perhaps more appropriately left to a final hearing.  In relation to that, the family report will be very significant.

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

1. The attitude to the child and responsibilities of parenthood demonstrated by each of the parents is a significant factor.  At the time the father took the child in April, there were no parenting orders in place.  The position, therefore, at that time, was that each of the parents had parental responsibility for the child pursuant to section 61C of the Act.  Removing the child from her home and her mother without warning, without discussing this with the other parent, without stopping to consider why it was in K’s best interests that this should occur, and should occur in the way it does, indicates, on this interim basis and on the evidence before the Court, that the attitude of the father is more attuned to what he regards as his rights rather than the interests of the child.

Any family violence involving the child or a member of the child’s family

1. I must also take into account family violence or the risk of family violence involving the child or a member of the child’s family.  I have referred to this material before and will not do so again.

Conclusion

1. Taking these matters into account it is necessary to weigh, as I have said, these considerations, particularly the primary considerations of the benefit to a child of having a meaningful relationship with both parents and the need to protect that child from physical or psychological harm.  The orders which the father seeks provide for K to live with her mother five days a week.  It cannot seriously be suggested that he considers her, in those circumstances, an inappropriate person for the child to be with.  In those circumstances, having regard to the matters I have discussed, which are primarily that the mother has been K’s primary caregiver and the evidence is that she is in a close and loving relationship with her mother and her siblings, that K should remain in the primary care of her mother. 

2. The issue is then whether or not there ought to be an order, as sought by the mother and the independent children’s lawyer, that the mother have sole parental responsibility.  That, to me, is a significant order which is best determined at a final hearing, and I will not make that order.  However, as I have said, pursuant to section 61C, each parent had parental responsibility for the child.  Pursuant to the orders that I will be making, K will be living with her mother.  That means that she will have, independently of the father, parental responsibility for K when she is with her and that is sufficient on an interim basis.

3. The next issue is whether and in what circumstances there ought to be time with the father.  The position was, at least up until April, that the family consultant thought that there ought to be supervised time with the father and that that should be entered into as a matter of priority.  The mother was prepared to go along with that.  It is easy to imagine that the attitude of K to her father may have changed as a result of the incident in April but she is young and, if she is anything like her elder sister, resilient.  Again, it is a drastic step, on an interim hearing, to deny a child contact with one of their parents.  I have, however, found that there is a substantial and reasonable risk of family violence by the father and that is sufficient to make it inappropriate to make the orders sought, which are that the child spend an unsupervised weekend with him.

4. Firstly, that is too long a time for a child suddenly to have time with one parent when they have not seen them for a significant period of time, let alone overnight.  This is especially so given K’s age. There was no evidence, as I have said, as to the circumstances as to where or how that would occur.  There was no evidence from the father’s new wife.

5. The father says, in submissions, that fathers who have been in gaol or overseas fighting wars do not need to be gradually reintroduced to their children.  That may be so, but that is an entirely different factual context, and is not an appropriate analogy to the circumstances that exist here.  I am not, therefore, inclined to make the orders sought by the father.  However, similarly, I am not inclined for there to be no contact whatsoever.  As I have said, this is an interim hearing and I think it would be desirable that there be some contact between the father and his child.

6. On 24 April 2013 I ordered that there be, as an interim measure, telephone time spent.  There are difficulties with telephone time.  It often occurs at times when children aren’t necessarily responsive to the phone call, creates pressures on both parents, each of whom must be involved to some extent in ensuring that it occurs in the appropriate manner.  The answer, therefore, is that there should be some form of supervised time and this is supported by the independent children’s lawyer.

7. The mother sought an additional order that there be an order that the child commence counselling for the purpose of monitoring the child’s relationship with the respondent father.  This order was not supported by the independent children’s lawyer.  If K needs the counselling for her psychological well-being, she should have it.  That is a matter for the parent having the child to arrange.  I do not think it appropriate that there be counselling for the purposes of monitoring the relationship with a view to that being given in evidence.  That would inevitably colour the counselling relationship as being conducted not for the benefit of K per se, but to monitor her psychological well-being.  I, therefore, will not make that order.

8. I will give leave to the father or the independent children’s lawyer to relist this matter, on seven days notice, to make an order in relation to an alternative supervision centre if another one can be found that is suitable.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 17 May 2013.

Associate: 

Date:  24 May 2013