Germain and Germain
[2017] FCCA 1980
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GERMAIN & GERMAIN | [2017] FCCA 1980 |
| Catchwords: FAMILY LAW – Final hearing adjourned – matter not ready to proceed – interim parenting orders – significant allegations of family violence and sexual abuse – family report ordered – child has not had spend time with father since 2014 – ICL lends qualified support to supervised time at contact centre – independent experts lend qualified support – child’s rights as to parenting – mother advances Re Andrew submission – evidence falls short of supporting requisite belief – supervised time at contact centre ordered as interim relief. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4,4AB, 11F, 60B, 60CA, 60CC, 65D, 69ZT |
| Cases cited: A v A [1998] FamCA 25 B and B (1988) FLC 91-957 Briginshaw v Briginshaw (1938) 60 CLR 336 Cowling & Cowling (1998) 22 Fam LR 776 Dunst & Dunst [2016] FamCAFC 15 Goode v Goode (2006) 36 Fam LR 442 Hepburn & Noble [2010] FamCAFC 111 Johnson and Page [2007] FamCA 1235 M v M (1988) 166 CLR 69 |
| Applicant: | MR GERMAIN |
| Respondent: | MS GERMAIN |
| File Number: | MLC 8441 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 August 2017 |
| Date of Last Submission: | 16 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Weerappah |
| Solicitors for the Respondent: | Bayside Solicitors |
| Counsel for the Independent Children's Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children's Lawyer: | Creative Family Law Solutions |
THE COURT ORDERS THAT:
Until the final hearing and determination of this proceeding or further order and subject to order 2 hereof, the child [X] born 2012 (the child), spend time with the Father for such face to face time as may be facilitated on a supervised basis by the (omitted) Contact Centre, as recommended by the Co-ordinator of the Contact Centre, commencing at such time as that Contact Centre may facilitate, as follows:
(a)for 4 hours each alternate weekend;
(b)changeover to take place at the (omitted) Contact Centre;
(c)spend time to be on such days and times to coincide with the availability of the Contact Centre and if more than one alternative be available, as nominated by the Mother.
The Father abstain from the consumption of alcohol and the use of illicit substances for at least 24 hours before, and during, any spend time with the child.
The Mother and Father support the child’s participation in spend time pursuant to order 1 hereof and in any therapy that may be recommended by the (omitted) Contact Centre, that they comply with any reasonable request of the therapist and equally share the costs of the child’s attendance at such therapy.
For the purposes of orders 1 and 3 hereof, the parties will communicate all information though the App MyMob.
The Mother and Father engage in a Parenting Program and as soon as possible provide a certificate of completion to the Independent Children’s Lawyer and the other party’s solicitor.
The Mother and Father continue to attend their treating health professionals and comply with their ongoing directions.
The Mother and Father will not expose the child to any negative comments regarding the other parent or any member of their family.
The Father undertake supervised drug screen testing (the testing):
(a)the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and
(b)the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.
The results of any such testing pursuant to order 8 hereof be forwarded, as soon as possible, to each of the Independent Children’s Lawyer and the Mother’s solicitors.
Certify for advocacy, including for solicitor appearing as counsel.
AND THE COURT NOTES THAT the proceeding has been re-fixed for final hearing at 10:00am on 30 April 2018.
IT IS NOTED that publication of this judgment under the pseudonym Germain & Germain is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8441 of 2015
| MR GERMAIN |
Applicant
And
| MS GERMAIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceeding concerns an application by the father in relation to the only child of the marriage, [X], born on (omitted) 2012. To this application, the mother’s amended response seeks orders including that the father spend no time, and have no communication, with their son.
The parties to the marriage are Australian citizens of (omitted) origin. The applicant father, who is aged 39 years, opened his case as one in which the parties had met online and married in November 2009. The respondent mother, who is aged 34 years, opened her case as being an arranged marriage. The parties effected a final separation in March 2013. Since separation, the mother has been the primary care giver.
The proceeding was listed for final hearing on an estimate of four days. At issue in the proceeding were parenting and spend time orders. However, the scope of the dispute narrowed. Following opening submissions from counsel for each of the parties and the Independent Children’s Lawyer, it emerged that the issues surrounding parenting orders had been resolved and that only spend time orders were now in issue. For the reasons below, the matter proceeded as an interim application for spend time by the father which was supported by the ICL and opposed by the mother.
On the allegations made, it appears that the marriage has been marred by domestic violence from its inception. The allegations are of a particularly serious kind. Intervention Orders are in place. As appears is some greater detail below, since separation, the parties relations have been interspersed by appearances in the Children’s Court, the Magistrates Court and this Court.
However, in 2013, a Children’s Court Clinic assessment concluded that the father did not pose a significant risk of harm to the child while his contact was supervised by a professional.
In the period August 2012 to October 2014, the father spent supervised time with the child. From that date, the father has had no spend time.
The father initiated his application for parenting orders on 3 September 2015 and in doing so made disclosure of existing Intervention Orders. The mother’s response filed on 9 March 2016 opposed the relief claimed.
On 17 March 2016, orders were made by consent including that the mother be restrained from removing or attempting to remove the child from Australia. Further orders were made by consent that the parties do all things necessary to place the child on the wait list for the purposes of the father spending supervised time with the child at the (omitted) Contact Centre. Orders were also made for the father to undergo random urine testing.
An order was also made for a child inclusive conference pursuant to s 11F of the Family Law Act 1975 (Cth). Such conference was held on 18 March 2016. A report was provided by Dr L on that date. Dr L recorded that the mother arrived at that conference about an hour late, thereby limiting the time available for the assessment. She concluded that a decision in relation to the question whether the child should spend time with his father was highly dependent on whether or not the mother’s allegations of family violence were accepted. Dr L would not endorse unsupervised time if the allegations of violence were sustained. By contrast, Dr L considered that if the father’s case was accepted, that [X] would benefit from a supported reintroduction to his father in a timely manner. It was suggested that this occur in a supported supervised environment such as a children’s contact centre and then progressing to unsupervised contact.
In addition, Dr L suggested that the child may benefit from the parents engagement in counselling and in the parents undergoing a Parenting Orders Program. On the basis of her limited access to the parties for the purposes of a s 11F conference, Dr L was reluctant to endorse interim arrangements but considered that the matter should be listed for final hearing as a matter of priority (with the appointment of an ICL), adding, as to a family report that:
A family report is unlikely to be of any assistance to the Court unless circumstances change significantly (such as [X] being reintroduced to his father). If this occurs a family report is likely to be of most utility after [X] has spent sufficient time with his father to consolidate this relationship. (emphasis added)
Dr L may have been unaware that an ICL was appointed by the order made on 17 March 2016 (being the order pursuant to which the child inclusive conference was also ordered).
On 18 May 2016, orders were made, again by consent, that the matter be listed for final hearing. The consent orders provided for three medical assessments: first, of [X] by a paediatrician; secondly, of each of the parties to the marriage, by a psychiatrist, and; thirdly, of the father by a clinical psychologist for the purposes of a psycho-sexual assessment.
For reasons unexplained, there is no paediatric report relating to [X].
On 23 August 2016, Dr S, clinical psychologist, provided a report pursuant to the orders made on 18 May 2016. The report comprised a comprehensive psycho-sexual assessment of the father. While the matters raised in that report remain to be tested at trial, I have examined the analysis and reasoning in that report and note the conclusions to the following effect: (a) psychological evaluation of the father revealed some past alcohol abuse in the context of an adjustment disorder in the midst of the parties’ relationship conflict; (b) this alcohol abuse appeared to have been managed appropriately including by an ongoing consultative process by the father with his treating psychiatrist; (c) the alcohol abuse issue had now been resolved; (d) psychological evaluation further revealed: (i) no ongoing psychological difficulties, and; (ii) no evidence of a personality difficulty; (e) parental risk evaluation revealed that the father was considered to be at a ‘Low’ parental risk (by reference to a defined method of assessment); (f) psycho-sexual risk of the father was assessed as a ‘Low’ risk of sexual offending; (g) the father presented as being able to care for his son and there was no evidence found of any limitations on this issue; (h) the father presented as being supportive of the mother and of her relationship with their son.
Dr S observed that issues relating to the father’s ability to care for his son may best be addressed by a family report writer.
While I do not rehearse Dr S’s curriculum vitae, I note that he is a clinical and forensic psychologist specialising in psycho-legal assessment and that he has conducted a private consultancy for over three decades.
On 6 September 2016, Dr R, psychiatrist, provided a report pursuant to the orders made on 18 May 2016. Dr A is a consultant psychiatrist who, for some 35 years or more, has been a Fellow of both the Royal Australasia College of Physicians and the Royal Australian & New Zealand College of Psychiatrists. The report comprised a detailed psychiatric assessment of each of the parties. Dr A conducted an evaluation of each of the parties which I have examined in detail. His consideration of the matter included an examination of certain affidavits from this proceeding.
It is not unimportant that in expressing his opinions, Dr A’s report recognised that the father was seeking interim orders for supervised time with his son pending the final determination of his application.
Dr A reported that the parties had grown up in a privileged (omitted) family. He recorded that the applicant’s father had a University posting in (omitted country) but that his father had passed in 2003. He also recorded that the respondent’s father (occupation omitted) while her brother (occupation omitted).
Dr A noted that the father had a history of alcohol abuse that had begun sometime after the commencement of the marriage and that, while there was dispute about the extent of the conflict, there was no doubt the parties’ relationship had been conflictual and marked by significant violence at some times. Dr A concluded that after the breakdown of the relationship and in particular, following the cessation of contact with [X], the father may have suffered a major depressive episode that may still be in partial remission. While Dr A noted the father’s denials of amphetamine usage, he made recommendations for further random testing. He reported that the father now felt much better without the mother in his life but that the father just wanted to have a place in his son’s life. Dr A observed the father to being very distressed at being denied any time with his son.
As concerned the mother, Dr A noted that the she was the younger of the children in her family. He observed that she presented as a person who tended to blame all of her difficulties on the abuse that she alleged having suffered at the father’s hands. Despite the extreme levels of reported sexual and physical violence, Dr A observed the mother spoke about the alleged abuse with little feeling and that there was no significant disturbance of mood during their two hour interview.
After referring to the mother’s diagnoses of PTSD and major depression and the treatment that she had received in relation to it, Dr A opined that she no longer met the criteria for either diagnosis, suggesting to him that the conditions were substantially in remission.
Dr A identified, correctly, that a central question before the Court concerned the extent of the family violence. He then structured his conclusion at two levels; the first being upon a premise that the allegations of family violence were accepted; the second upon the alternative premise that the mother may have significantly exaggerated the extent of that violence. His professional opinions were that
(a)if the finding of violence was sustained, the Court should approach anything other than supervised time with the father with extreme caution (emphasis added);
(b)alternatively, he considered that if the allegations of violence were found to have been significantly exaggerated, then it would be reasonable to consider a gradual easing of the conditions of the father’s time with the son, subject to a very clear indication that further incidents of violence and/or breaches of Intervention Orders that remain on foot, may lead to a cessation of all contact.
Following the issue of those reports, on 20 October 2016, the mother filed an application in a case seeking orders that would facilitate her travelling with [X] to (country omitted) for a period of some eight weeks. Relief was granted upon that application by orders made on 25 October 2016. The mother did travel to (country omitted) and the father, in breach of an Intervention Order, sought to travel on the same flight. An application that the father be dealt with for that breach is pending and due for hearing on 30 August 2017. Further allegations raised by the mother, contested by the father, are that an attempt was made in (country omitted) by the father to abduct the child.
On 20 December 2016, the father filed an application in a case seeking orders that would allow him to have spend time with [X] for a period of no less than two hours per week and to be supervised at the (omitted) Supervised Contact Centre. The father’s application was listed for mention in a duty list on 15 March 2017 and was dismissed on that date. Although no written reasons were provided, the Court was apparently of the view that the application raised matter that was more appropriately to be addressed at the final hearing listed on 14 August 2017. An application for a family report was also refused in circumstances where, I am told, submissions from the ICL were not heard. Beyond that, the parties are in dispute as to the precise events that occurred at the mention on 15 March 2017.
In both a considered written outline and in careful opening submissions, the ICL and her counsel, Mr Eidelson, respectively, expressed the preliminary position that orders should be made for the father to have spend time with [X] which should, for an initial period of 12 months, be supervised at the (omitted) Contact Centre. Further orders were proposed in the ICL’s outline, which the father endorsed as being generally appropriate to the disposition of the case.
As matters progressed, I accepted submissions from the ICL that the hearing should be adjourned by reason that there was, as it was described, a ‘yawning gap’ in the evidence by reason that there had been no independent assessment of the child since 2014 with the result that it was inappropriate for final parenting orders to be made until a family report had been prepared.
Both parents now support the making of orders for a family report.
To describe the necessity for such an adjournment as regrettable is an understatement. The matter has been re-fixed for final hearing on 30 April 2018. The question arose as to what should occur given the likely substantial delay between the preparation of a family report and the final hearing (particularly for a trial having an estimated four day duration). It was in the foregoing circumstances that I determined it was appropriate that an interim application for spend time should be heard.
Mr Eidelson of counsel for the ICL submitted that the (omitted) Contact Centre was in a position to allocate priority to the child spending supervised time with the father. Whether or not that was a matter arising partly in consequence of the parties’ consent order made on 17 March 2016, I was not told.
Evidence
For the purposes of their final hearing the parties relied upon a large body of material. As the matter evolved at the hearing and came to be treated as an interim application, the parties relied upon that same body of material.
The father relies upon the following; (a) Initiating Application filed 8 September 2015; (b) Amended Application filed 4 November 2015; (c) Application in a Case filed 20 December 2016; (d) Affidavit of Mr Germain filed 10 March 2017; (e) Amended Application filed 14 July 2017; (f) a Trial Affidavit filed 14 July 2017; (g) Affidavit of Mr S filed 14 July 2017; (h) Affidavit of Ms G filed 14 July 2017; (i) Department of Health and Human Services s 69Z and s 67BA report dated 12 April 2016; (j) Child Inclusive Memorandum dated 18 March 2016; (k) Affidavit of Dr K filed 15 March 2016; (l) Notice of Risk filed 8 September 2015; (m) Amended Application filed 14 July 2017; (n) Outline of Case filed 9 August 2017.
The mother relies upon the following: (a) Affidavit of Ms Germain filed 9 March 2016; (b) Notice of Risk filed 9 March 2016; (c) Affidavit of Ms Germain filed 17 May 2016; (d) Application in a Case filed 21 October 2016; (e) Affidavit of Ms Germain filed 21 October 2016; (f) Affidavit of Ms Germain filed 17 February 2017; (g) Notice of Risk filed 17 February 2017; (h) Affidavit of Ms Germain filed 8 March 2017; (i) Amended Response filed 10 July 2017; (j) Affidavit of Ms P filed 10 July 2017; (k) Affidavit of Ms J filed 24 July 2017; (l) Trial Affidavit of Ms Germain filed 28 July 2017; (m) Outline of Case filed 3 August 2017; (n) Affidavit of Dr M filed 28 July 2017.
The ICL relies upon the following: (a) Child Inclusive Memorandum dated 18 March 2016; (b) Affidavit of Dr S filed 29 December 2016; (c) Affidavit of Dr R filed 17 January 2017; (d) Outline of Case filed 10 August 2017.
Apart from those referred to above, a number of other records from the Department of Health and Human Services were identified as material that had been produced on subpoena; however, none of it was tendered for the purposes of the application.
In light of the fact that the proceeding now requires the determination of an interim application, it is not practicable to provide a detailed analysis of the material that parties have relied upon. As the matter proceeded by way of application for interim relief, and having regard to the gravity of the matters in issue, it became necessary for the Court to reserve its judgment in order that that body of material could be considered.
For present purposes, I recount a condensed history of the parties’ relations as may be discerned from the parties’ outlines of case. In recording that history I am conscious that some of the matters detailed below may well be in contest and I do not intend by recitation of this history to be understood as having made any findings of fact. My object is to do no more than to chart the apparent territory of the parties’ relations as providing a context to the present interim application. The Court cannot determine contested issues of fact on the hearing of an interim application
As noted above, the parties to the marriage are Australian citizens of (omitted) origin who were married in November 2009. Their son [X] was born on (omitted) 2012. It is common ground that the parties’ relationship was attended by abuse and violence from its inception. The scope of that conduct is contested and is a matter that must await determination at a final hearing. While the father acknowledges a high degree of abuse during the relationship, he denies allegations of rape, of any abuse, or attempted kidnapping, of the child – he characterises these as complete fabrications by the mother. He also contends that as between the parties, the abuse was bilateral and that the mother was both physically and verbally abusive towards, and goading and denigrating of, him (allegations that the mother denies).
By the outline of case prepared by the ICL there were some 27 incidents of alleged family violence in the period before the parties’ final separation that occurred in March 2013. During a period which overlapped the parties’ separation, from August 2012 to August 2014, there appear to have been 11 appearances in the Children’s Court. In addition there have been proceedings brought in respect of the breach of existing Intervention Orders. The father is due to appear on 30 August 2017 to contest an alleged breach of an Intervention Order. I have also considered the several notices of risk that were adduced in evidence.
By his affidavits the father has made plain his desire as a father to have time with his son and he has admitted that his conduct, insofar as entailed the contravention of existing Intervention Orders, was stupid and he is regretful at having engaged in it. He has filed affidavits which provide a detailed account of the events which led to the incidents about which he makes admissions. In addition he adduces evidence indicating that he has engaged actively with his medical specialists to obtain appropriate psychiatric treatment.
Equally, the mother adheres to her view that she wants the father to have no spend time with their son and deposes that she could not cope if orders were made that the father was permitted to have spend time or contact with their son. She relied upon a report of a treating counsellor, Ms J and her treating psychiatrist, Dr M.
I address the evidence adduced as to the parties’ treatment below.
Treatment of father
The father has undergone ongoing psychiatric treatment from Dr K since February 2015. A report by Dr K dated 19 January 2016, provides a detailed history of her treatment and opinion. She considered that the father did not have any mental disorder but that he could become angry when put under stress. If any psychiatric label was to be placed upon him, Dr K would have described it as an acute situational disorder (DSMIV 308.3). Dr K identified the medication that she had been prescribing and that she found the father to be a compliant medicant. She had also been treating him with psycho-education and supportive psychotherapy. She has observed him to have lost some 15 kg as a result of his abstinence from alcohol (except when socialising) and has not observed any quality in the father that might contra-indicate his ability to be a ‘good enough’ parent.
For the purposes of the trial, more current evidence might be anticipated to be filed beyond Dr K’s affidavit that was filed on 15 March 2016.
Treatment of mother
A psychology report of Dr I dated 20 July 2016 is referred to in Dr A’s report which records that Dr I had consulted to the mother since 2011 and that he has assessed the mother as suffering from PTSD as a consequence of a domestic violence situation. For some time, the mother continued to attend Dr I who, as at August 2013, considered that the mother had made strong and positive steps forward.
Ms J affirmed her affidavit on 21 July 2017. She deposed that she is a Counsellor/Advocate who had worked in the field of family violence for some 16 years. Ms J first consulted the mother in March 2017 and has seen her on five occasions. Ms J exhibited a report dated 14 July 2017 which, in short form, expressed grave concern for the mother’s continued recovery should any “changes be made to [X]’s current residency status.” She considered that the mother needed “to feel confident that her son will continue to be parented in a safe and secure way throughout these crucial developmental years. This is important for both Ms Germain’s (sic) and her sons recovery.” Ms J also opined that the mother had provided a consistent and reliable source of emotional and parental support to the child since the parties’ separation. I note that Ms J’s first consulted the mother in 2017.
Dr M affirmed his affidavit on 27 July 2017. He deposed that he is a clinical psychiatrist and exhibited a report relating to his patient, Ms Germain, the opinions expressed in which, he swore, were independent and impartial. The two page report of Dr M records that he has been treating the mother and the son, for a period of three years. By reference to the annexed curriculum vitae, Mr Eidelson submitted that Dr M may not be a psychiatrist.
At all events, Dr M stated that he had reviewed the medical history and legal statements provided to him by his patient (however, these documents were not identified in further detail).
Dr M said that he based his opinion on that medical history and those legal statements. He records that the mother first consulted him in June 2014 and that he made a diagnosis of clinical depression, an illness which he treated by a course of medication and referral to a psychologist. Dr M then reported that the mother had continued with such treatment and that she had responded “with good results.”
Somewhat surprisingly, Dr M then stated as follows:
During this time, Ms Germain continued to provide faultless maternal care and to study (omitted). Her ability to maintain personal discipline and vigilance as well as love and warmth for [X], which translated into security, open communication, and protection for him has humbled me as a person and a GP.
I have observed that any exacerbation of Ms Germain’s anxiety, depression or asthma (from which she suffers regularly), as well as her fear for her safety and that of her child always happened when her ex-husband was to be involved in their lives. Otherwise, Ms Germain goes from strength to strength in creating her own independence and the well-being of her son, [X]. Unfortunately, however, each battle to protect herself and her son from the dangers which her ex-husband’s presence and actions create causes her to be more traumatised. It takes her longer to recover.
My considered medical opinion is that Ms Germain would not be able to cope with the presence of her ex-husband in her or [X]’s life. I understand that his bizzare (sic) behaviour has been documented. Thre (sic) is no doubt that such ongoing distress, even periodically, would cause any person to become unable to cope and to function in the admirable way which I have seen Ms Germain behave. (emphasis added)
The report says little if anything of his treatment or assessment of [X].
Mr W indicated that further medical evidence in relation to the mother would be adduced at trial.
Parenting orders
Mr W assisted the Court with detailed submissions as to the applicable legal principles. The parties were agreed upon those principles. Where there was disagreement, it was in relation to the application of those principles to the circumstances of this case. For the ICL, Mr Eidelson submitted that the proper application of those principles supported a conclusion that orders providing for the father to spend time with [X] in a supervised environment of the kind afforded by a child contact centre were appropriate. For the father, Ms Bonney submitted that such orders were appropriate and paid particular attention to the question of unacceptable risk and the additional factors that require considerations pursuant to sub-ss 60CC(1)-(3).
Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the Court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte [2017] HCA 8, the Court said of s 65D at [8]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of the children there are two primary considerations which must be taken into account. The two primary considerations are as set out in s 60CC(2). The Court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
In addition, amendments to the Act effected by sub-s 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect the children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. Where the circumstances require, the need for protection from harm as addressed by sub-s 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a). Such a conclusion is reinforced by the exception provided for in sub-s 60B(2).
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a Court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accorded priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including orders that will operate so as to protect the child from harm.
Interim orders
The principles in Goode v Goode (2006) 36 Fam LR 422 apply to the determination of an interim application for parenting orders. There the Full Court drew attention to the amendments to Part VII of the Act which took effect from 1 July 2006, the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard – as the paramount consideration – to the best interests of the child in deciding parenting orders: (2006) 36 Fam LR 422, [7]-[10].
Against this background, consideration was then given to the principles applicable to interim parenting proceedings: (2006) 36 Fam LR 422, [66]-[82]. The Full Court, recognising that interim proceedings were interlocutory in nature, confirmed some of the statements in Cowling & Cowling (1998) 22 Fam LR 776 as apposite, and accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make” (2006) 36 Fam LR 422, [69]. In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (2006) 36 Fam LR 422, [72]. (emphasis added)
Goode’s case holds that the Act evinces a legislative intent that favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. The Full Court’s holding was, however, expressed as being subject to: (1) the need to protect children from harm from abuse and family violence; (2) the proviso, whether the substantial involvement of both parents would be in the child’s best interests and reasonably practicable. This reasoning echoes the text of ss 60B(2) and 60CA. The general legislative intention in favour of substantial parental involvement cannot then be read as though divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would be in their best interests or reasonably practicable.
The following principles stated in Goode’s case (2006) 36 Fam LR 422, [82] were applicable when following the legislative pathway:
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(j) . . . ;
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.
In the context of the present application for interim parenting orders then, the Court must have regard to the considerations in s 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.
Unacceptable risk – approach in cases of violence or abuse
The Court, when hearing an interim application, cannot make findings about disputed facts: Goode (2006) 36 Fam LR 422, [74], [81].
On behalf of the mother, Mr W provided a helpful submission concerning the legal principles applicable to the assessment and determination of unacceptable risk which recognised that the best interests of a child are to be met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60B(1).
The mother relied upon the seminal statements of principle in M v M (1988) 166 CLR 69, being the settled approach to the resolution of allegations of sexual abuse in parenting cases. It is necessary to examine the reasoning in that case. In rejecting the principle submission of the appellant (that in such cases, the paramount issue in the determination in a parenting application was the allegation of sexual abuse itself), the High Court held in a joint judgment at 75-76:
The consequence is that the ultimate and paramount issue to be decided in proceedings for 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 fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
To similar effect, the Full Court of the Family Court has held that if an unacceptable risk of the child being exposed to physical, emotional or psychological harm is present, then an order for supervised access was not appropriate having regard to the Court’s obligation to protect children from harm: In the marriage of M and J Bieganski (1993) 16 Fam LR 353, 364-366 (Fogarty, Baker and Davis JJ). In the same appeal, the Full Court recognised that in cases where allegations of sexual abuse are raised, the ultimate issue for determination is not whether the parent has sexually abused a child – the ultimate issue is whether access should or should not be granted (though this will not preclude an affirmative finding of abuse if it be open on the evidence).
Adapting these principles to the Act in its present form, M v M holds that parenting orders should not be made if to do so would expose the child to an unacceptable risk of sexual abuse: (1988) 166 CLR 69, 78; see also, B and B (1988) FLC 91-957; Bieganski (1993) 16 Fam LR 353, 366; Johnson and Page [2007] FamCA 1235.
The reasoning in M v M underlines that parenting proceedings are distinct from purely inter partes proceedings in that they do not entail the enforcement of a parental right – rather they concern the making of orders that would best promote and protect the interests of non-parties – that is, the child of the relationship. For that reason, the Court held that “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.” (1988) 166 CLR 69, 76.
Thus an enquiry as to sexual abuse cannot distract attention from the paramount obligation to determine what is in the best interests of the child. Once that is recognised, the question to be resolved in abuse cases entails the determination on the evidence whether there is:
. . . a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.
M v M (1988) 166 CLR 69, 76.
As the Court noted, since the question concerns the assessment of risk, the requirement is to assess and evaluate the likelihood or possibility of events or occurrences which, if they did occur, would detrimentally affect the child’s welfare: M v M (1988) 166 CLR 69, 77.
It is axiomatic that allegations of sexual abuse are serious. The allegations are easily made and difficult to negate. Briginshaw principles apply to the determination of whether there had been, or whether there was a risk of sexual abuse: see Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J); M v M (1988) 166 CLR 69, 76-77; s 140(2)(c) Evidence Act 1995 (Cth). The statements of principle to be derived from M v M serve to explain why Briginshaw is applied before a positive finding of sexual abuse could be made in a parenting application and why the Court should generally refrain from making a positive finding of abuse unless impelled to do so.
M v M was decided in 1988. Since that date, the Act has been amended, including Part VII, on several occasions. Relevantly:
(a)section 69ZT was inserted in the Act in 2006, so as to remove the application of significant parts of the Evidence Act in proceedings relating to Children under Part VII of the Act;
(b)to similar effect, a raft of other amendments were effected to Part VII in 2006 which provided explicit principles and duties to be applied in the conduct of child related proceedings;
(c)section 60CC(2A) was inserted with effect from 7 June 2012, so as to require that greater weight be given to the need to protect children from harm in the determination of what orders were in a child’s best interests.
Those provisions serve to reinforce the holding in M v M.
As to risk, M v M requires the assessment and evaluation of the likelihood or possibility of future events which, if they come about, will have a detrimental impact on the child’s welfare. Why then should the Court be required to shut its eyes to evidence which, if otherwise relevant, is probative of the issue of risk even if that evidence does not rise to the level of proof of a conviction?
In Slater & Light [2013] FamCAFC 4, May, Strickland & Forrest JJ endorsed the following statement by the Hon John Fogarty who, writing extra-judicially, said:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
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.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But 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. (emphasis added)
As that Full Court observed, those observations were later endorsed by another Full Court in Johnson and Page [2007] FamCA 1235.
Applied to the present case, a single and historical notification of domestic violence may, viewed in isolation, be insufficient to support a conclusion of a real or immediate risk of physical or psychological harm to a child. By contrast, a documentary record that discloses a repeated or systemic pattern of such behaviour might do so more persuasively.
Several observations may be made. First, the allegations of sexual abuse concern, for the most part, the mother. As concerns the child, the mother’s allegations centre upon the manner in which the father had bathed the child. Secondly, no occasion arises for the Court to make a positive finding of abuse. Thirdly, convictions in relation to sexual offending or offending of a kind relevant to the primary considerations are also relevant to interim parenting orders. Here there are no such convictions. Fourthly, both the making – and the breach – of domestic violence orders, are relevant considerations in the determination of what parenting orders, including interim orders, are in the best interests of children. Fifthly, so too, are documented records in the nature of notifications to, and investigations by, departmental authorities. Sixthly, one need not be satisfied of the truth or completeness of each notification made to a departmental authority. Seventhly, the Court may reach a conclusion of unacceptable risk from an accumulation of factors and the combined weight that they provide.
Relevance of supervision
As to supervision, Mr W drew attention to a decision of the Full Court of the Family Court in In the Marriage of B (1993) 112 FLR 45, 61-62 (Fogarty, Baker and Purvis JJ). The ratio of that appeal was that a finding as to the truth of an allegation of sexual abuse would invariably have a decisive impact respecting an application for custody or access because the established test was whether the making of an order would expose the child to an unacceptable risk of abuse. By extension, the Full Court held that if supervised access posed an unacceptable risk, it should not be granted. This must be accepted.
As also concerned supervision, Mr W referred to A v A [1998] FamCA 25, 3.22 – 3.26 (Fogarty, Kay and Brown JJ). The Full Court there examined the High Court’s reasoning in M v M and made a number of important observations, including that the whole emphasis of M v M was upon the concept of unacceptable risk and that, in cases which did not entail strict supervision, the question was whether, on the whole of the evidence, contact by the father with the child might expose the child to an unacceptable risk because it may place the child in jeopardy in the future in their father’s care.
Re Andrew considerations
Mr W also pointed to a distinct principle that may be engaged where the primary care giver holds a belief that the party seeking spend time poses an unacceptable risk to the child. The principle may be engaged where it is established that the belief held by the primary care giver is itself of a kind, that if spend time was granted it would impinge upon the capacity of the primary care giver to look after the child. The principle derives from the comprehensive statutory definition of ‘abuse’ that extends beyond primary or direct abuse and includes abuse of a derivative kind through, for example, being exposed to family violence.
The seminal decision in Re Andrew (1996) 20 FamLR 538 holds that the impact of an order upon the primary care giver may be one of the factors relevant to an application that a parent be permitted to spend time with their child. Where that impact is gauged to be significant, in terms of the primary care givers ability to provide adequately for the needs of the child, this was a factor to be weighed in the balance against the benefit to the child of maintaining a relationship with their non-custodial parent. Relevantly to the present application, in Re Andrew, in two interlocutory applications, the Court had granted supervised access only.
Contextually, the father had been convicted of assault (relating to an incident witnessed by the child, which the mother contended had included a threat to kill both the child and herself). Orders had been made granting supervised access on alternate weekends. There was in evidence a family report before the Court. The father was unable to afford the ongoing cost of supervision. Access was terminated. On a second application, unsupervised access was refused, the father being allowed telephone contact; however, an order was made to facilitate supervised access at a child contact centre (that yet to be established and was not in existence at the time of the order). The father appealed.
Following an extensive review of the authorities, the Full Court (Nicholson CJ, Lindenmayer and Kay JJ), concluded that it was impossible to hold that the discretionary choice entailed error. Notably, their Honours concluded that given the apparent intensity of the wife’s feelings about the matter, it would likely be necessary that in future “any supervisor would likely have to be trained professional not associated with either of the parties.” The scope of the case should not be misunderstood as conferring a right of veto in favour of one party.
Application of the principle is perhaps usefully illustrated in A v A. There, post-separation, the mother had been the victim of a savage assault in her home at night at the hands of an unknown perpetrator. The father, though investigated, was not charged. At a final hearing, the trial judge made orders which progressively provided for supervised contact at a contact centre, supervised contact by the paternal grandparents and thereafter, unsupervised spend time. The wife’s appeal (contending for no spend time) was opposed by the father and Child Representative. Although the appeal was allowed, the Full Court varied the orders so as to allow for supervised spend time; such supervision to be at a Contact Centre or otherwise as the parties agreed.
The Full Court’s reasoning on this branch of the case, proceeded on a premise that the evidence clearly established a risk that was entirely unacceptable. The decision is highly instructive for the present matter. The principles stated by the Full Court were as follows:
(a)First, it is only where the trial judge reaches a conclusion that objectively there was no unacceptable risk that one would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter;
(b)Secondly, where such a belief be held, it is not necessary that the belief should be reasonably and objectively based. To the contrary, at this level of the inquiry what is required is the determination whether the asserted belief was genuinely held. This is because, the genuinely held belief that may so impinge upon the wife’s capacity as the primary carer of the children to look after them that:
. . . the question arises whether, in the interests of the children, contact should continue and/or whether it should be supervised to allay those apprehensions. (emphasis added)
Citing R & C [1993] FamCA 62, Re Andrew[1996] FamCA 43; (1996) FLC 92-692.
The Full Court endorsed the following approach:
(a)the first enquiry is whether there is, objectively, an unacceptable risk. If such a risk be established, the Court must take steps proportionate to the degree of risk;
(b)if there is not an objectively unacceptable risk, the second enquiry requires that the Court may need to consider: (i) whether the primary care giver has a genuinely held belief that such a risk exists, and; (ii) whether that belief will have a significant impact on that party’s capacity as the primary care giver and so impinge on the best interests of the children. Again, the Court then needs to take steps proportionate to that circumstance.
The principles stated in A v A were being applied in an appeal from orders made at a final hearing; not on an application for interim relief.
The principle was considered more recently in Dunst & Dunst [2016] FamCAFC 15, [81]-[82], where Finn, Ainslie-Wallace and Aldridge JJ endorsed the reasoning of the primary judge in rejecting a Re Andrew submission on the basis that the evidence fell short of establishing the requisite belief. The primary judge had reasoned as follows:
The available evidence falls short of proving the mother would react so adversely to future personal interaction between the children and the father that her parenting capacity would deteriorate and impinge the children’s best interests, thereby justifying elimination of the father from their lives (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew [1996] FamCA 43; (1996) 20 Fam LR 538 at 544-546; Hepburn & Noble [2010] FamCAFC 111;(2010) FLC 93-438 at [43], [49]-[64]). Nonetheless, the mother’s fear, which was not only genuine but also objectively reasonable, is still a feature of the evidence that favours curtailment of the children’s interaction with the father. (emphasis added)
Dismissing the appeal, the Full Court held that those were findings that were open on the evidence and justified the orders that were ultimately made. The orders as made by the primary judge had a threefold aspect: (1) orders were made restraining the father from going anywhere within 500 metres of the mother’s residence or the childrens’ schools; (2) no orders were made prescribing or precluding the children’s interaction with their father; (3) the question whether the children might have spend time with their father was left for the determination of the mother as an incident of her parental responsibility: see [2014] FamCA 964.
Consideration
Goode’s case holds that in making interim decisions, the legislative pathway must be followed notwithstanding that the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child (2006) Fam LR 422, [81]. So here, there was a considerable body of material filed. Regrettably, it confirms the parties’ troubled history.
Applying the considerations identified in Goode’s case identified above:
(a)during the course of their submissions, the only order that had been agreed was that the mother should have full time care and sole parental responsibility;
(b)sole parental responsibility was thus not in dispute: s 61DA;
(c)also agreed was that, in determining what parenting order was appropriate on an interim basis, the best interests of [X] remained the paramount consideration: s 60B;
(d)the competing proposals of the parties as concerned the interim parenting arrangements for [X] were fully identified by their case summaries and confirmed by their submissions;
(e)there was agreement between the father and ICL alone as to the scope of orders as contained in the ICL’s outline of case. The mother opposed such orders.
Accordingly, the sole focus was upon [X]’s best interests: s 60CA. What of the primary and additional considerations posed by ss 60CC?
As framed by the mother, the central issue appeared to be whether the father posed an unacceptable risk to the child. While the adoption of that approach represented a candid attempt by counsel to confront issues during the interim application, the authorities discussed above require that the question be framed as one that was focused on the paramount issue of the child’s best interests, giving greater weight to the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. I have treated the parties’ submissions as being focussed upon that issue.
Where abuse or family violence is in issue, a guiding principle is that the Court should 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”: In the marriage of N and S (1995) 19 Fam LR 837 (per Fogarty J, in a dissenting judgment on the facts of that case). In the same decision, the plurality (Kay and Hilton JJ), recognised that:
Certainly the child should never be put into a life threatening situation. But in many cases the court is forced to choose between two or more less than satisfactory alternatives, each fraught with risk to the child. Where the court has to weigh up competing risks, such as in this case the risk of allowing access compared with the risk of not allowing access, the court must often, by the very nature entailed in the process, experiment. Providing there is more to be gained from carrying out the experiment than not carrying it out, and providing the possible benefits to the child outweigh the possible detriments, the experiment may well be required to be undertaken to advance the welfare of the child. (emphasis added)
I consider that those principles are apposite in the present case. In particular, as was debated in submissions in the course of the hearing, there may be a real and tangible benefit to a child if a family report writer has had the opportunity to consider any notes arising from the periods of time spent by the father with the son at a contact centre. Indeed, here so much was recognised by Dr L in March 2017.
I am prepared to assume, contrary to the father’s interim application that there may be an unacceptable risk of harm. I do so having regard to the accumulation of factors identified in the parties’ evidence, including the notices of risk, their affidavits and the admissions made by the father. I recognise that those many factors remain untested. For the avoidance of doubt, I am neither satisfied nor persuaded as to the truth or the completeness of the many allegations that are raised. These are matters for a final hearing. On an interim application, the Court is required to give real and substantial consideration to facts that are contested.
My conclusion that there is an unacceptable risk of harm cannot be viewed in a vacuum. In this case, the father’s interim application is not for unsupervised spend time. Nor is it for spend time supervised by a person who might not be said to be sufficiently independent in all the circumstances. The proposal here, supported by the ICL, is for supervised spend time at a child contact centre.
The chosen centre is the (omitted) Contact Centre. It should not be ignored that the parties agreed in a consent order in March 2017 to the child being placed on the wait list at that centre. For present purposes I consider that centre to be beyond reproach. The ICL submitted that the child could now be afforded immediate priority on that wait list.
Such supervised access does not pose an unacceptable risk to [X].
In the present case, factors of the kind identified in In the Marriage of B are here absent. The (omitted) Contact Centre is wholly independent from the father. It bears no animus towards any party. It is in a position to monitor the father during the periods of time spent with the son. The Centre is in a position to provide notes of that supervision to the family reporter. It should not be ignored that in 17 March 2016, the mother was a party to consent orders that the child be placed on the wait list for the (omitted) Contact Centre. What has changed from her perspective?
I regard the proposal for spend time at the (omitted) Contact Centre as involving appropriate supervision. I conclude, on an interim basis, that for the father to spend time with his son where he will be supervised at the (omitted) Contact Centre would not expose [X] to an unacceptable risk of harm.
In reaching that conclusion, I have had regard to the whole of the evidence outlined above. As I have identified the negative features of the case (in terms of risk), I do not repeat them. I do not ignore the gravity of the allegations that the parties’ relationship has been attended by abuse and violence from its inception. Nor do I ignore Dr A’s observations of the mother’s non-responsive attitude when engaged upon those topics. It will be for the parties including the ICL to consider what, if any, use is to be made at the final hearing of the material recorded in, or said to be revealed by, the documents that were produced on subpoena or otherwise.
From a positive perspective, I note a constant theme in the independent and treating medical evidence that lends support to the father’s submission that he does not pose a risk to the child and has the ability to be a good parent. I refer in particular to the observations of the 2013 Children’s Court Clinic assessment (as referred to by Dr A). I refer also to the opinions expressed in the reports of independent specialists who provided detailed reasoning for those opinions; namely, Dr S and Dr A (both of whom brought considerable experience to the discharge of their tasks). Subject to the allegations raised by the mother, neither specialist identified a particular risk that would deny an order for supervised spend time at a child contact centre. Granted, suggestions were made for random testing (and this can be addressed).
Notwithstanding the very limited opportunity that was afforded to her to form a view, Dr L was prepared to proffer an opinion in March 2016 that if the father’s case was accepted, [X] would benefit from a supported reintroduction to his father in a timely manner, that this should occur in a supported supervised environment (such as a children’s contact centre) and then progress to unsupervised contact.
I note that the father has presented as being able to care for his son and that no evidence was found of any limitations on this issue. In addition, the father has presented as being supportive of the mother and of her relationship with their son.
I note also that the father has already had a period of supervised care from August 2012 to October 2014. Granted also, Dr A recognised that any repetition of conduct that entailed a breach of an IVO may well warranted the revocation of interim spend time orders. However, the regime of supervision at a child contact centre affords a new opportunity in which the position may be re-set and for the child to again exercise the right to know, be cared for and communicate with his father.
In Bondelmonte v Bondelmonte, the Court observed that, by s 60D(2) the Court may “inform itself of views expressed by a child” by a number of means, including a report given to the Court by a family consultant under s 60G(2) or, subject to the Rules of Court, “by such other means as the court thinks appropriate”: [2017] HCA 8 at [19].
A matter which appeared to involve an anomaly of some sort arose from submissions concerning an alleged change in attitude on the part of the child. Before 2014, the child had been observed to react in a positive way to the father. By contrast, it was submitted that in 2014, during the child inclusive conference, the child had responded, when asked, that he did not have a father (see Dr L’s report). The two incidents were qualitatively different. In the first, the father and child were each present and interacting. In the latter, the child was responding to a question in the father’s absence. It will be recalled that the child inclusive conference was limited by reason of the mother having arrived an hour late. Matters of this kind served to reinforce the need for a family report. Why the child was withdrawn in March 2016 is untested.
[X] is now 5 years of age. It will be another 13 years before he attains his majority. He has a father who wishes to be engaged in his life.
The ICL and her counsel have considered the matter and are generally supportive of the interim orders that are sought. Indeed, the ICL and her counsel were primarily responsible for drafting the majority of the orders that have now been made.
Attention may also be drawn to the psychological condition of both parents. Presently, there is a dearth of available contemporaneous medical reports from the parties’ treating practitioners. Such as it is, I have formed the tentative view that:
(a)the father has made a concerted effort to receive ongoing treatment of an appropriate kind from the same psychiatrist and he is assessed in a relatively good light by that specialist. He had lost significant weight and has addressed the issue of alcohol abuse that he had earlier suffered from and candidly accepted. There is also a suggestion of the ingestion of illicit substances. The need for him to have ongoing testing has been identified;
(b)the mother’s current condition is also relatively positive. Both Dr I and Dr M made positive observations of her state and while Ms J was less sanguine, her report was very brief. As the authorities show, I must assess the evidence as a whole.
I take into account the needs of the mother to be assured of [X]’s protection as a relevant consideration: In the Marriage of Bieganski (1993) 16 FamLR 353. As to the mother’s submissions based upon Re Andrew, and the Full Court decisions discussed above, I consider that:
(a)if the father was to spend time, unsupervised with [X], then objectively, there may be an unacceptable risk of harm;
(b)accordingly, the Court must address steps proportionate to the degree of risk. Steps which were submitted to be proportionate to such risk were those comprised in allowing only that there be spend time in a supervised environment and that this be in a child contact centre. I regard this as a proportionate response;
(c)a risk to [X] is proportionately addressed by allowing that the father might only spend time with his son where that time is supervised by a contact centre;
(d)if there is not an objectively unacceptable risk, I must consider the question of the mother’s asserted belief as per Re Andrew;
(e)that task is to be approached on the basis that I am not required to decide if the mother’s belief is reasonably or objectively based;
(f)in this interim application I do not affirmatively decide whether the mother does in fact have a genuinely held belief;
(g)at this level, I consider that a relevant aspect of the enquiry is whether the mother believes that to allow spend time supervised by a contact centre in fact constitutes an unacceptable risk. I consider there is a paucity of evidence to support such a conclusion. I do not accept the reports of Dr M or Ms J, cumulatively or of themselves, suffice to do so. I prefer the combined weight of the other independent expert evidence that lends support to supervised spend time at a contract centre;
(h)I also consider that a relevant aspect of that enquiry includes whether such a belief (if held by the mother), will have a significant impact on her capacity as primary care giver such as would impinge on the best interests of [X]. For the reasons given above, I am not satisfied that the evidence does establish a sound basis for finding such a significant impact exists;
(i)had I accepted that a sound basis for finding such a significant impact was made out, I remain satisfied that the steps comprised in the proposal for supervised spend time at a contract centre are proportionate to the circumstances of this case;
(j)supervision by a contact centre is, in my view, a significant factor to be weighed in the balance. It was a factor that received recognition in the Full Court authorities to which I have referred.
My conclusions on an interim hearing do not foreclose the Re Andrews submission being ventilated at a final hearing.
Authorities which refer to Part VII as prescribing a legislative pathway and as imposing an obligation upon a Court applying Part VII to follow a legislative pathway, are properly to be understood as emphasising that the statutory considerations relevant to a particular case must be considered and applied as directed by the Act: Oswald & Karrington [2016] FamCAFC 152 at [47] (Ainslie-Wallace, Aldridge and Kent JJ).
As to those additional considerations, the parties referred me in particular to the matters identified in para’s 60CC(3)(a)-(b), and I accept that those require evaluation in the circumstances. Although they were not specifically alluded to during the hearing, I have also considered the other factors identified in para’s 60CC(3)(c)-(m). I regard the matters in para’s 60CC(3)(j)-(k) as being of relevance and have considered them.
Having heard the parties detailed submissions and considered the evidence upon which they have relied, I have decided that it is in the best interests of the child that interim spend time orders should be made as sought by the father and supported by the ICL. I have been fortified in that conclusion by the combined weight of the independent expert opinion evidence of Dr A and Dr S.
Conclusion
The matters addressed in these reasons explain why parenting orders were made on an interim basis that addressed the arrangements that should be made for this child.
I have concluded that it is in the best interests of [X] that he should have the ability to spend time on a supervised basis with his father. That is in his best interests because he has a right to know and be cared for by both of his parents and to spend time on a regular basis with and communicate on that basis with both of his parents. [X]’s father has been assessed on an independent basis since at least 2013 as not posing a significant risk of harm to him while his contact was supervised.
I underscore the observation of Dr A that the parents ought to be reminded that there is a considerable body of evidence of the harmful effects of ongoing conflict between their parents post-separation and, by extension, of the benefits to children if parents can agree to parent co-operatively and with a minimum of conflict. Those observations are especially pertinent as to the effects of conflict on young children.
In March 2016, Dr L suggested that the child may benefit from the parents engagement in counselling and in the parents undergoing a Parenting Orders Program. Orders to facilitate this will be made.
I recognise that orders for supervised spend time ought not be of indefinite duration – this is an interim order. It is expressed to operate until the final hearing and determination of this proceeding or further order. It is also subject to order 2 which requires the father to abstain from alcohol use or the use of illicit substances before [X] and he have spend time at the Contact Centre. It is also expressed in the context that orders were made on 14 August 2017 for the making of a family report and setting the matter down for a final hearing on 30 April 2018.
As raised in the course of submissions, this interim order does not carry an embedded assumption that spend time orders will necessarily be made upon the final hearing and determination of the matter. As to that, I reiterate the observations.
I reiterate the clear warning expressed by Dr A that if there were further incidents of violence and/or breaches of Intervention Orders, this may well lead to a cessation of all contact.
I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 18 August 2017.
2
11
3