Gibb and Kearney

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBB & KEARNEY

[2016] FCCA 2339

Catchwords:
FAMILY LAW – Child aged four years and eight months – interim arrangements for the child to spend time with father – high conflict family – should father’s time be professionally supervised at a CCC – matters to be considered – nature of family violence – best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode (2006) FLC 93-286
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
JG & BG (1994) 18 Fam LR 255
Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13
Stevenson & Hughes (1993) 16 Fam LR 443

Applicant:

MR GIBB

Respondent:

MS KEARNEY

File Number:

ADC 2293 of 2016

Judgment of:

Judge Brown

Hearing date:

31 August 2016

Date of Last Submission:

31 August 2016

Delivered at:

Adelaide

Delivered on:

8 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms M Dickson

Solicitors for the Applicant:

Tindall Gask Bentley

Counsel for the Respondent:

Ms H Tinning

Solicitors for the Respondent:

BBS Lawyers

ORDERS

Until further or other order:

The child X born (omitted) 2012 live with the mother.
The father spend time with the child X as follows:
(a)Each Wednesday, commencing 14 September 2016, from after pre-school until 4:30pm with the father to collect X from her pre-school and deliver her back to the mother’s home; and
(b)Each Sunday, commencing 11 September 2016 from 9:30am until 2:30pm with the paternal grandmother, Mrs Gibb Senior to collect and return X from the mother’s home and subject to the condition that one of the paternal grandparents being present for the whole of the periods so ordered;
(c)At other times as agree between the parties but so that these arrangements continue on each Wednesday during any pre-school holiday with the child to be collected on these occasions by the paternal grandmother from the mother’s home with the mother to advise the father’s solicitors when the child’s pre-school is not in session.
(d)At Christmas Day and the child’s birthday ((omitted) 2017) at times to be agreed between the parties and failing agreement between 9.30 am and 2.30 pm.
A copy of these orders be made available to the officer in charge of the (omitted) Pre-School so that he/she is aware that the father will be collecting X on Wednesday afternoon and the child can be prepared for this eventuality.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the child and, at the discretion of the family consultant, observed interaction of the child with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties with a view to the report being available by the end of January 2017.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The father be restrained and an injunction is hereby granted restraining him from consuming alcohol to excess for at least twelve hours prior to and during the child’s time with him.
The parties exchange a communication book between them at each handover setting out the child’s nutritional needs, sleeping patterns, health and any other matters relating to her care including whether she has been to the doctor or dentist; suffered any physical mishap or illness or been prescribed any medication and what activities she has engaged in with her father and where those activities have taken place.
The parties exchange between them their current address and contact details, including mobile telephone numbers and electronic contact details, particularly email addresses.
Further consideration of this matter is adjourned following receipt of the family assessment report to 14 February 2017 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2293 of 2016

MR GIBB

Applicant

And

MS KEARNEY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment arise in response to a dilemma, which fairly frequently confronts this court, at the interim stage, in parenting proceedings. At the interim stage, the hearing before the court must inevitably be brief and rely on untested, incomplete and controversial evidence.
The dilemma arises because the parents concerned have had an unhappy relationship resulting in an acrimonious separation. Both make significant allegations of misconduct against the other. The child concerned is of tender years and, as a consequence, necessarily emotionally and physically vulnerable. The parties have no shared history of parenting the child consensually and actively mistrust one another. They communicate poorly, if at all.
In these circumstances, the court is asked to determine how and in what circumstances the child should interact with a parent, more often than not a father, where the other parent (more often than not a mother) resists the time other than in a situation of rigorous professional supervision.
From the perspective of the father concerned, such a stance is both unreasonable and not child focussed, particularly in light of the benefits likely to accrue to the child of having a meaningful level of relationship with him. Such a parent fears that supervision is sought for tactical or spurious reasons, unrelated to proper protective concerns relating to the child.
From the perspective of the mother concerned, the court’s paramount responsibility is to ensure the safety of the children, in both physical and emotional terms. In these circumstances, caution and protection above all else is emphasised. All these features are present in the current matter.

Background

Mr Gibb (“the father”) and Ms Kearney (“the mother”) are the parents of X, born (omitted) 2012. Both parents are in their early 30s. Mr Gibb is a (occupation omitted) in the (employment omitted) industry. Ms Kearney is a casual (occupation omitted) but primarily occupied in parenting X.
The parties met in mid-2011. They became engaged in November 2013 but never married. They separated on 19 February 2015, when X was just over three years of age.
The father commenced these proceedings on 23 June 2016. At this stage, he asserted that he had not spent any time whatsoever with X since Easter of 2016. Initially, he proposed that he should spend time with X between 9.00am and 5.00pm each Wednesday and Sunday. He resisted any proposal that the time be supervised, either professionally or by a lay person.
More recently, since the mother has filed her extensive affidavit material in reply, which includes a psychological report from X’s treating psychologist, Ms A, he has moderated his position for the interim period.
The father currently proposes that he should spend time with X, each Wednesday from the conclusion of her pre-school ((omitted) School), which is 12.00pm until 4.00pm and each Sunday from 10.00am until 2.00pm.
In respect of Wednesday the father proposes collecting X from her pre-school and returning her to the mother at a neutral location in (omitted) or (omitted), such as a playground. He proposes a similar neutral collection and return point for Sundays. From his perspective, he does not believe it would be helpful in assisting X to separate from her mother, if handover is at the mother’s premises.
On this basis, Mr Gibb submits that X’s pre-school provides a good and safe place for him to collect X, which will be subject to some level of oversight by the school but which will not require the mother to be physically present. Clearly, the school will not be available on weekends and, in these circumstances a playground is the next best thing.
Although he does not believe it is objectively necessary, in order to provide reassurance to the mother that X will be safe, he is prepared to agree to one or both of his parents (the paternal grandparents) supervising his time with X.
The paternal grandparents are Mr T and Ms E. They live in (omitted) . The father lives in (omitted). The mother lives in (omitted). The paternal grandparents have each filed an affidavit in which they indicate their willingness to supervise and signify their understanding of what supervision entails.
The paternal grandparents are not acceptable to the mother as supervisors. The mother resists the father having time with the child on Wednesday afternoon for, amongst other reasons, that she is likely to be very tired after a busy morning at pre-school. However, fundamentally, she does not believe X will be safe in the care of her father because he has demonstrated himself to be a violent and controlling person.
It is the mother’s case that X has had her own direct experience of her father’s hectoring and bullying attitude, which has caused her to be gravely fearful of him. In these circumstances, she contends that X is not currently psychologically resilient enough to able her to spend time with her father alone. Ms Kearney does not believe that the paternal grandparents are appropriate supervisors because Mr T in particular has previously condoned the violent behaviour of the father.
In these circumstances, the mother submits that the only feasible approach for the court to adopt is a process of rigorously and professionally supervised time, at a children’s contact centre. She proposes eight such visits, each of two hours in duration, occurring fortnightly. Thereafter she proposes that the father obtain a report detailing what the supervisor nominated to oversee his time with X has observed during each such visit.
From her perspective, this process will provide both her and the court with some sort of assessment, albeit a lay or informal one, of what is the nature of the relationship between X and her father. She contends that this is both the logical first step and the most protective and child focussed intervention for the court to consider, given her characterisation of X as a highly anxious child, who has been emotionally traumatised by her father’s behaviour towards her.
In addition, the mother proposes that Mr Gibb attend upon a suitably qualified person for anger management therapy and that a family assessment report be prepared by an expert nominated by her. She also proposes that the father attend upon Ms A, at his own expense, to engage in some form of therapy to improve his relationship with X.

The competing cases of the parties

The parties have each filed several affidavits in the proceedings. They have each followed the common practice of responding to allegations raised against him or her by referring to the particular paragraphs in the affidavits concerned and putting their respective accounts of the incident in question.
This has led to a complex interweave of allegation meeting counter allegation, which make it difficult to find a coherent narrative of what has occurred, if indeed such a coherent narrative is achievable, given the numerous controversies in the parties’ respective evidence. It is however clear that the parties’ relationship was frequently an unhappy, volatile and dysfunctional one. The parties now have different views as to why this was so and who of them was more responsible for this unfortunate situation.
Essentially both parties assert that he or she was the victim of the others coercive and controlling family violence and denies that he or she was the instigator of this violence. It is not possible for me to make concluded findings about the nature of this violence and what implications it has for X. It is however a common phenomenon that the parties to an unhappy relationship behave poorly, in reaction to their difficult situation and this type of behaviour recedes, in its potency, once the parties to the relationship concerned have separated.
The father’s first affidavit was a comparatively brief document. He alleges that the mother was an anxious and psychologically reactive person during the parties’ relationship. In particular, he asserts that she has a propensity to behave angrily and violently and did so regularly towards him, on occasions scratching, hitting and kicking him as well as throwing items at him. His description is of an emotionally labile person, who has great difficulty controlling her anger, particularly when stressed.
In this context, it is Mr Gibb’s position that following the parties separation, he has found it extremely difficult to communicate with Ms Kearney, particularly in regards to arrangements for him to spend time with X. He alleges that, prior to the parties’ separation in February 2015, he was the victim of several significant episodes of family violence instigated by the mother.
In particular, he alleges that the mother has scratched him with her fingernails causing blood to be drawn; struck him on the legs with a chair, causing swelling and bruising; hit him on the head with a bottle; bitten him on the right arm; thrown a full glass of wine in his face; as well as other forms of assault and verbal abuse. There is no independent corroboration of these various incidents.
The father acknowledges that X is a child who is easily unsettled and exhibits signs of anxiety. It is his view that this anxiety emanates from Ms Kearney, who is emotionally dependent upon the child. In his affidavit, Mr Gibb deposes as follows:
“I am concerned that the mother's anxiety is having an impact on X. X can become overly upset by minor occurrences such as bumping her head or falling over. She also overreacts when she sees ants or insects and will scream and cry.
The mother will create situations where it is difficult for X to separate from her and will encourage X's clinginess and dependence upon her.
As at Easter 2016 X was still being breastfed at night.
The mother has co-slept with X since her birth. The mother would go to sleep with X and then leave her bedroom. When X woke during the night the mother would go back into her room to settle her and stay in her bedroom all night. The mother would not allow me to get up to tend to X and accuse me of "not wanting to" or that I had work the following day and should sleep.”[1]
[1] See affidavit of Mr Gibb filed 23 June 2016
Following separation, it is Mr Gibb’s evidence that he has only been able to spend limited periods of time with X, which has been subject to the mother’s discretion as to its length, location and degree of maternal supervision. It is Mr Gibb’s evidence that on odd occasions he was able to take X to his parent’s home in (omitted), where she would be able to interact with her paternal grandparents.
It is the father’s evidence that Mr Gibb, in particular, regularly provided care for X prior to the parties’ separation when Ms Kearney needed some free time. As such, it is the father’s case that X knows her paternal grandparents well and is familiar with their home.
It is the father’s case that between February and August of 2015, his relationship with X was a happy, relaxed and comfortable one. Over this period, he was gradually able to bring X to his home, where she had her own bedroom set up with toys and appropriate furniture.
However, X had not spent an overnight period with him up to this stage. In this context, Mr Gibb deposes that during a visit in August of 2015 he raised the possibility with X, of her staying overnight with him at his home and suggested that he purchase a bed for this purpose. He deposes that X was excited at this prospect.
During this same visit, Mr Gibb deposes that X suffered a minor mishap when she grazed her knees after being accidentally pulled from a scooter by the mother’s dog. He asserts that from this time onwards, he has had continuing difficulty spending a proper level of time with X, which has necessitated him instituting these proceedings.
It is Mr Gibb’s case that from August of 2015 onwards, the mother has become increasingly capricious in regards to his time with X and has insisted that she be present on all occasions. From Mr Gibb’s perspective, this is an unduly restrictive and unnecessary requirement, which heightens rather than reduces X’s propensity to become anxious.
It is Mr Gibb’s evidence that he was not consulted by Ms Kearney about X consulting with Ms A. He deposes that he has contacted Ms A, who has informed him that she believes that X may be suffering from some form of anxiety. Mr Gibb does not believe that he is the source of this anxiety. Rather, it is his evidence that on the limited occasions during which he interacted with X between August 2015 and Easter of 2016, X was excited to see him and interacted naturally with him.
In support of her application, the mother has filed a notice of risk. She alleges that X is at risk of being abused by her father. She has delineated six incidents involving Mr Gibb, which give rise to her concerns in this regard. One of these incidents is that of August 2015, when X fell from a scooter.
Two of these incidents pre-dated X’s birth. The third incident occurred when X was approximately 12 months old and the parties apparently had an argument. The fourth incident arose when the mother, in her words, splashed her wine in Mr Gibb’s face, to which she alleges Mr Gibb overreacted in a violent and aggressive fashion, kicking her in the abdomen.
Ms Kearney alleges that she initially summonsed the police to this incident but cancelled them after speaking with the paternal grandfather. It is Ms Kearney’s evidence that the father and Mr Gibb Senior dissuaded her from proceeding with laying a formal complaint with police against the father. It is also the mother’s case that this incident has caused her to have no confidence in the paternal grandfather as a supervisor because he allegedly condoned Mr Gibb’s behaviour.
The fifth incident concerned the mother alleging discovering some pornography on the father’s computer, the nature of which concerned and offended Ms Kearney. She alleges that when she confronted Mr Gibb, he reacted angrily and shoved a door back into her aggressively.
The mother agrees that the father began spending unsupervised time with X, in February of 2015. However, it is her evidence that X was frequently returned late and unfed. It is also her positon that Mr Gibb was impatient with X and was not able to manage her behaviour when it became challenging.
In this context, both parties have serious criticism of the other’s capacity as a parent. The father asserts that the mother fails to put in place a proper routine for X. He alleges that the mother has no proper bedtime routine and as a consequence, becomes over-tired.
The parties also have a radically different view as to what happened in August of 2015. It is the mother’s position that X was unwell on this occasion. However, she was not able to contact the father to tell him not to come and collect X. Nonetheless, when Mr Gibb arrived, she agreed to him taking X for a walk with her (the mother’s) dog.
The mother does not know what happened during the walk as she was not present. It is Mr Gibb’s evidence that X was inadvertently injured when she was pulled over by the dog whilst she was holding its leash. Whether the scooter was directly involved is unclear to me and to be frank, does not matter.

Both parties agree that X was upset and crying when she came home. In this context, the mother alleges that Mr Gibb was angry at both she and X, causing the child to be further distressed. The father asserts that he had comforted X appropriately and asserts that Ms Kearney has over-reacted to the incident. From my perspective, the matter seems to be one of the ordinary incidents of childhood – all children fall and scrape their knees and get a fright; they get upset and cry. No medical intervention was required in this particular case. It is likely that is has been a source of some overreaction.
Following 16 August 2015, it is the father’s case that he has spent time with X on a further eleven occasions all but two of which the mother has been present for. He asserts that at handovers, the mother refuses to encourage X to transition into his case and when the child has been reluctant, Ms Kearney simply accedes to X’s wishes.
On the other hand, it is Ms Kearney’s evidence that X has been frightened to spend time with her father and has frequently indicated that she does not want to go with him. She alleges that following the incident of 16 August, X has continued to be unsettled and has had nightmares.
In this context, she alleges that the father has become increasingly frustrated with X and has reacted to both her and the child. She further asserts that X has come to the attention of staff at her pre-school, who have allegedly been worried by the child’s behaviour and presentation particularly after she has seen her father.
In her affidavit, the mother has alleged that Mr Gibb has issues with excessive alcohol consumption and has threatened her that he will reduce his child support payments for X. On the other hand, it is Mr Gibb’s position that Ms Kearney is not child focussed, particularly in severely limiting his time with X, since April of 2016.
In this context, Mr Gibb deposes as follows:
“On 2 June 2016 the mother proposed that I spend two hours with X at the (omitted). As soon as X saw me she jumped up, ran over to me with a big smile on her face and gave me a big hug. I had brought gifts for X which included toys and books and she did not leave my side during our time together. The mother intervened during my interactions with X. For example I took a photo of X and she came over and asked me whether X had given me permission to take a photograph of her. The mother’s interventions were disruptive and unnecessary and at one stage X turned to the mother and told her to leave us alone and said ‘Mum, you and I can play later’.
At the (omitted) the mother was angry at me as I had refused to consent to the mother obtaining a passport for X. She told me that she ‘fucking hates me’ within earshot of X and other patrons.”[2]
[2] See affidavit of Mr Gibb filed 29 August 2016 at paragraphs 28 - 29
It is the father’s position that the mother indication that he should seek the child’s approval to be photographed is extraordinary. More significantly her involvement of the child in an adult controversy was insensitive and inappropriate. On these bases, he submits that it is long overdue that he spend time with X without the mother being present and her insistence on the involvement of a children’s contact centre is likely to be disingenuous.

Ms A’s report

Ms A’s opinion and methodology, like the other evidence in this case, has not as yet been subjected to any independent scrutiny. Mr Gibb is concerned that X may have unwittingly been present and privy to discussions occurring between the mother and Ms A, which have influenced her (X) presentation with Ms A. He does not believe that the incident of August 2015 warranted X undergoing a process of psychological treatment.
Ms A reports that X was brought to her because Ms Kearney reported that her behaviour had significantly deteriorated since the August 2015 incident. Ms Kearney reported that she had become increasingly clingy and would not separate from her mother at pre-school. As a consequence of this behaviour Ms Kearney had decided to temporarily suspend arrangements for X to spend time with her father.
In this context, Ms Kearney had consulted Ms A with a view for providing strategies for Ms Kearney to assist with addressing emotional and behavioural alterations noted with X’s function primarily associated with X’s contact with her father. In this context, between 3 September 2015 and 18 July 2016, X had attended on Ms A on sixteen occasions, during each of which Ms Kearney had been present. Mr S characterised X as an anxious and hesitant child, who was noted to be very clingy with her mother. She was also observed to dribble constantly from her mouth.
It was Ms A’s impression that the mother was supportive of contact between X and Mr Gibb provided that the child was not distressed by it. However, Ms A also reported that Ms Kearney was critical of Mr Gibb in that he was inconsistent in his contact with X. Ms A does not seem to have clarified this aspect directly with Mr Gibb.
Over the course of the therapy, Ms A indicated that it was her impression that X had become less anxious and more engaging with her, ceasing the dribbling behaviour. However, the child continued to mention dreams with a theme of being separated from her mother and feeling anxious about past contact arrangements, with her father, when she had felt pressured to sit on his lap. X also apparently reported being exposed to her parents’ yelling at each other.
Ms A regarded X to have a positive and secure attachment with her mother. Ms A indicated that she was not in a position to opine about the nature of the relationship between X and her father, as she had never observed the two together. Ms A confirmed that she had spoken with Mr Gibb on three occasions and he was keen to explore mechanisms to assist him in having regular ongoing contact with X.
Under the heading of recommendations Ms A provided the following opinion:
“Previous recommendations provided to Ms Kearney have been for contact to initially be guided by X’s desire to see her father. It was recommended that contact occur two to three weekly and be increased as/if X’s comfort with her father developed positively. It was further recommended that contact visits should occur for approximately two to three hours as this would be sufficient for a child of X's age and that this too could be increased as the relationship improved. It is to be recognised that some disruption to behaviour after contact visits can be considered "normal" however, should X display any behaviours that indicate significant distress either at home or within the school environment then a review of the contact should again be explored. It was also recommended that all contact should involve child-based activities such as parks, playgrounds, (omitted), libraries etcetera.
Given that X continues to request her mother's presence at contacts it is recommended that this also continue until X has established a more positive attachment relationship with her father. It is further recommended that while Ms Kearney might be present at these contacts it would be preferable for her to perform a role as a reassuring presence rather than to engage with parenting X to allow opportunities for Mr Gibb to actively engage with X. It is also recommended that M r Gibb engage with a "Circle of Security" parenting course to develop an increased understanding of the importance of meeting the emotional needs of children to establish a positive attachment relationship that is based on security and trust.”[3]
[3] See affidavit of Ms N filed 23 August 2016 at pages 16 & 17

Submissions

Ms Dickson, counsel for the father, submits that it is counterproductive for the mother to continue to be present at any future interactions between him and X. It is his case that Ms Kearney has overreacted to what happened in mid-August of 2015 and she is more likely than not to be the cause of X’s anxiety. In this context, Ms Dickson urges me to approach Ms A’s recommendations with some caution.
Mr Gibb accepts that X has displayed some symptoms of anxiety. However, in this context, it is his evidence that prior to August of 2015, he was beginning a process of unsupervised time with X, with which he believes she was coping and happy to engage with him. In Ms Dickson’s submission, Mr Gibb has behaved sensitively to what is a difficult parental dynamic.
It is Ms Dickson’s submission that her client’s current proposal is a reasonable and child focussed one. In particular, Ms Dickson contends that it is appropriate for X to have two weekly sessions of time with her father, which will enable a meaningful level of relationship to be maintained between the two. It is her submission that the presence of Mr & Mrs Gibb Senior will provide reassurance to the mother that X will be safe, although it is not conceded that the child will be at any risk whatsoever, whilst in Mr Gibb’s care.
In Ms Dickson’s submission, the most significant element of risk to X is the dysfunctional parenting relationship between the parties, which Ms Kearney has largely inaugurated. In these circumstances, Ms Dickson contends that it is a gross overreaction to this risk for Mr Gibb’s time, with the child, to be professionally supervised. In addition, it is her case that the amount of time available is inadequate to maintain properly the relationship between X and her father.
On the other hand, Ms Tinning, counsel for the mother contends that the court needs to approach the issue of time between X and her father with a significant degree of caution. It is her submission that the evidence, which to some extent Mr Gibb accepts, is that X is a highly anxious child and therefore a vulnerable one. In these circumstances, Ms Tinning argues that the involvement of the parties and X, with a children’s contact centre, will provide two important safe-guards for X.
Firstly, Ms Kearney herself will have confidence that X’s emotional needs will be safeguarded. Presumably, if X is distressed, staff at the contact centre will not allow X to spend time with her father. From Mr Gibb’s perspective, this submission has the air of a self-fulfilling prophecy.
Secondly, if the time does take place, staff at the contact centre will provide the parties with details of how X reacted to her father and what she did with him. From this account, both the court and the parties, particularly the mother, will be able to gauge the true nature of X’s relationship with her father and determine what is the next step for that relationship to take.
In this context, Mr Gibb contends that it is not the proper function of children’s contact centres to provide such expert evidence, particularly in the context of what he categorises as a complex and multi-faceted parental relationship between him and the mother.
In this context, in my view, it is useful for the court to outline what is the rationale for the establishment of children’s contact services. These can be derived from the Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-Generals’ Department. The objectives for such services are as follows:
“CCSs occupy a unique and important position within Australia’s family law system with their core business focusing on the needs of separating or separated families.
CCSs enable children of separated parents to have safe contact with the parent they do not live with, in circumstances where parents are unable to manage their own contact arrangements. Where separated parents are not able to meet without conflict, CCSs provide a safe, neutral venue for the transfer of children between separated parents. Where there is a perceived or actual risk to the child, they provide supervised contact between a child and their parent or other family member. Parents may be ordered to attend a CCS by the family court to facilitate changeover or have supervised visits with their children.
The key goal of CCSs is to assist separated families to move, where possible and it is considered safe to do so, to self-management of contact arrangements, both in terms of changeover and unsupervised contact. CCSs ensure that the children’s best interests are kept central to the contact process. Services should only accept cases after careful assessment and where they consider that their facilities and resources allow them to deliver services that are safe and appropriate for all parties.
The overall objective for CCSs is to provide children with the opportunity of re-establishing or maintaining a meaningful relationship with both parents, and other significant persons in their lives, when considered safe to do so.”

The legal principles applicable

The legal provisions, relating to how a court determines parenting arrangements for a child are both complex and controversial. They are contained in Part VII of the Family Law Act. Since its inception, the Act has been subject to several major changes, reflecting community concerns regarding significant societal issues such as family violence and the on-going relationship between parents, particularly fathers and their children, following relationship breakdown.
Given the complexity of these issues, it is not always easy for the lay reader to distil the actual effect of these legislative changes and what they mean in practice, particularly for the court. I will do my best to explain the relevant provisions. It is also the case that, at the interim stage, I am obliged to follow a specific pathway which was delineated by the Full Court of the Family Court in the case of Goode & Goode.[4]
[4] Goode & Goode (2006) FLC 93-286
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[5]
[5] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7]
[6] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[7] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Part VII of the Act is to be interpreted in the light of a number of objectives and principles, which underpin the two primary considerations, contained in section 60CC. These objectives and the principles underlying them appear in section 60B(1) & (2) respectively.
The objects of Part VII include ensuring that children’s best interests are met through them having the benefit of both their parents having a meaningful involvement in their lives, whilst at the same time being protected from coming to any form of harm.
The principles speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors. However all these considerations are subject to the overall proviso of the child’s best interests.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time which a child spends with each of his or her parents. There is no presumption in favour of equal time per se. This is not the starting point for the court’s deliberations.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
In his application, Mr Gibb, at both the interim and final hearing stage seeks that the parties have equal shared parental responsibility for X. Ms Kearney proposes that the parties have equal shared parental responsibility for X on a final basis but her application is silent, in this regard, at the interim stage. I assume that it is her position that the presumption is rebutted, at this stage, both because of considerations of family violence and because it would not be in X’s best interests for it to be applied.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Repeated derogatory taunts; and
·Intentionally damaging or destroying property.

Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
In this context, it is Ms A’s opinion that X has been exposed to her parents yelling at each other. On the basis of both parties evidence, there were a number of arguments between them prior to their separation.
In addition, it is Ms Kearney’s position that Mr Gibb was yelling following the incident involving X and the dog. On the basis of the evidence available to me, I am not in a position to conclude whether any of these incidents comfortably fit within the legislative definition of family violence.
Family violence is not homogeneous in its qualities and can arise in a variety of contexts. It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children.
It can range in character from impulsive behaviour that arises as a result of a stressful situation such as a relationship breakdown and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[8] Not all incidents of family violence will be necessarily damaging for a child.
[8] See JG & BG (1994) 18 Fam LR 255 at 261
In this case, both parties deny being the instigator of family violence. It is Mr Gibb’s case that Ms Kearney was a volatile and emotionally labile person who frequently assaulted him and broke items of furniture.
On the other hand, Ms Kearney characterises Mr Gibb as a person with alcohol issues who behaved violently towards her. In this context, I note that several of the incidents, of which she complains, occurred a significant period of time ago. In these circumstances, it is difficult for me to determine whether this behaviour amounts to coercive and controlling behaviour.
Although I am bound to give primacy to protective concerns, the legislature does not permit me to overlook the benefits which are likely to derive to X from having a meaningful level of relationship with her father.
The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits which will come to the child concerned if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
In this context, it is Mr Gibb’s case that he now needs to begin spending regular periods of time with X, in order to grow his relationship with her. He is fearful that, since the parties separated, he has not spent sufficient time with X in order for his relationship with her to develop meaningfully.
In this context, he submits that the mother’s proposal for supervised time, of two hours per fortnight, is inadequate to sustain the relationship between him and X in the sense envisaged by the applicable legislation.
On the other hand, it appears to be Ms Kearney’s case that, for there to be anything other than professionally supervised time between X and her father, would raise the risk of the child sustaining some form of psychological harm as a consequence of being exposed to her father’s allegedly abusive and violent personality.
Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of sexual abuse; compromised parenting as a result of psychological illness or personality disorder; and, as in this case, risks relating to, on the one hand, exposing a child to an angry and unpredictable parent and, on the other hand, the risk that the other parent concerned is intent on undermining a relationship which is centrally important to the child concerned.
In this case, the parties approach the case from the opposing ends of this continuum. The father contends that there is a serious risk that the mother is intent on alienating X from him, in some way; whilst the mother contends that she is only acting reasonably, in order to protect a sensitive and anxious child from a volatile parent, who has been abusive towards her (and the child) in the past.
The court is frequently called upon to make assessments of risk, at the interim stage, when the evidence before it is untested; often incomplete; and invariably highly controversial and emotive. As such, at the interim stage, the court may not be in a position to make a definitive finding that the conduct raising concerns, in one of the relevant parents, either has occurred or, if it did, was of the degree of gravity alleged.
However, given the structure of Part VII, particularly its emphasis on protecting children from the consequences of exposure to any form of abuse or neglect, the court cannot disregard such allegations because of evidentiary difficulties, which may or may not arise as a consequence of the court trying to establish the truth or otherwise of the allegations concerned and the circumstances in which they arose.
Necessarily such a situation creates a dilemma. The court is damned if it does and damned if it does not in the eyes of one or both of the protagonists to the proceedings concerned. As the Full Court pointed out in Keats & Keats:[9]
“As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies. The primary judge applied the principles that emerge from cases such as SS v AH,[10] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”
[9] Keats & Keats [2016] FamCAFC 156
[10] SS v AH [10][2010] FamCAFC 13
In the current case, it is impossible for me to establish, on the balance of probabilities, why X has been exhibiting signs of anxiety and distress. In addition, at this stage, I am unable to fully appraise what risks may arise, for X, if her relationship with her father remains in a truncated form for the next three or four months.
Significantly, but for obvious reasons, I am unable to assess accurately what are the potential pitfalls arising from both the father and the mother’s proposals for X to spend time with Mr Gibb. Necessarily, any intervention regarding contact arrangements for a vulnerable child, such as X, where the relationship between her parents is significantly compromised, must be experimental in nature.
The issue for the court being the extent of the experiment concerned. In this context, in my view, it is my responsibility to assess the degree of risk arising to X, from the conduct alleged against the father and put in place the response which I think is proportionate to the degree of risk arising. In so doing, I cannot ignore the risk to X of her not having a proper level of meaningful relationship with her father. The concept of risk can cut both ways.
If the risk or danger of abuse for the child is an unacceptable one for the court to countenance, it would not be in the best interests of the child concerned to be exchanged to such a risk. In this case, it is the mother’s position that it would be unacceptably risky for X to spend time with her father because she will become anxious at such a prospect arising from her previous experience of her father.
On the other hand, it is the father’s position that the court needs to act expeditiously to normalise X’s relationship with him, in a careful and cautious manner. As previously indicated, he is fearful that professionally supervised time will be both inadequate and potentially liable to fail on the basis that the staff at the children’s contact centre, whilst being well meaning, will not have the resources to deal with this particular family.
Specifically, in this context, Ms Dickson points to the fact that the staff of children’s contact centres will not compel a distressed child to separate from a parent in order to interact with the other parent concerned. However, these staff members are not in a position to investigate why the child concerned is distressed and what is the aetiology of the apparent refusal to separate, particularly whether it originates with the delivering parent, rather than the accepting one.
In this context, it is the father’s case that the mother is not currently capable of providing the proper level of encouragement to X to assist her (X) to separate from her mother and move freely and appropriately to him. Accordingly, he is fearful that the involvement of a children’s contact centre will not necessarily advance the matter greatly or assist him to enhance his relationship with X.
The pathway delineated in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Conclusions

It is now necessary for me to consider the various factors arising under section 60CC, bearing in mind the truncated nature of the hearing before me and the various evidentiary issues which remain in controversy between the parties.
In my view, the risk of X suffering psychological or physical harm from being subject to some form of abuse, neglect or family violence emanating from her father is not of sufficient magnitude for it to be unacceptable for the court to countenance only some form of rigorously supervised professional contact between the two.
I accept that X is an anxious child. Why she is so is more difficult to ascertain. Her anxiety is likely to have multiple sources, including the circumstances surrounding her parents’ difficult separation; her mother’s response to that separation; individual aspects of both the mother and the child’s personalities, particularly their idiosyncratic propensity to anxiety; and X’s own reaction to these factors, particularly the obvious deficits in the parties’ current level of capacity to communicate with one another effectively.
Mr Gibb is likely to have played a part in creating this dynamic but it seems improbable that he is the only causative factor in it alone. X knows her father and her paternal grandparents well. It is Mr Gibb’s evidence that when he has been able to interact alone with the child, this has been a positive experience for them both. It is also his case that, in the past, Ms Kearney has been sanguine about entrusting the child to the care of his parents.
As such, I accept that X has the potential to benefit from having a meaningful level of relationship, not only with her father but also with her paternal grandparents [see section 60CC(3)(b)(ii)]. In these circumstances, in my view, a regime of rigorously supervised professional contact is out of proportion to the risk to X represented by the father, including in terms of the child’s anxious presentation.
In addition, I do not dismiss the father’s concerns that the regime proposed by the mother may constitute an impediment to the amelioration of the relationship between the two. As the legislation recognises, parental relationship are of prime significance to children. The years of early childhood are likely to be central to establishing long term connections between parents and children.
For the first three years of her life X shared the same household with her father, although the parties disagree as to his involvement in providing for her care in this period. Thereafter, Mr Gibb has interacted with the child regularly frequently albeit that his involvement has been interrupted, from time to time, at Ms Kearney’s intervention.
In the period since the parties separated, both allege the other has said and done inappropriate things in the child’s presence. Sadly, since the parties separated, now over eighteen months ago, the tensions between them have increased rather than diminished.
In these circumstances, I am not persuaded that the continuation of the mother in the regime for X to spend time with her father is likely to be helpful. It seems to me that it behoves the court, in a cautious and incremental manner, to embark on different approaches to the issues raised by the case.
I accept that the mother is likely to be horrified with the notion of an experimental approach to the matter of X’s interaction with her father. However, I do not consider that she is likely to be completely objective about the way forward. Similarly, Ms A is not likely to be appraised of all the issues which are currently before the court, given that she has had a limited exposure to Mr Gibb.
I am concerned that a regime of two hours contact per fortnight over the next two to three months will not be adequate to promote X having a meaningful level of relationship with her father. In addition, I do not dismiss Mr Gibb’s concerns that supervised time will, notwithstanding the good offices of the contact centre concerned, result in the unwitting retardation of his relationship with X rather than its enhancement. I accept the father (and indeed the paternal grandparents) loves X and wishes to remain involved in her life. As such there is a significant relationship between father and child [section 60CC(3)(b)].
I take into account the objectives of Children’s Contact Centre, which are primarily designed as a mechanism to respond to the perceived risks a parent may represent to the child concerned. The risk Ms Kearney identifies is that Mr Gibb will potentially lose his temper with X causing her emotional upset. As indicated above, I do not necessarily consider that a Children’s Contact Centre is an appropriate mechanism to respond to the difficult dynamic which exists between the parents in this case.
Children’s Contact Centres are not designed to provide individual therapy to the child concerned. Nor are they intended to provide an informal and cheap alternative to a family assessment report. In addition, I have to be careful not to inaugurate a protracted and stressful regime of supervised time on the rationale only that it will provide a means of assuaging the anxieties of a parent.
Wherever possible parents are to be encouraged to manage their own handover arrangements. I am well aware of the very great demand that are placed on Children’s Contact Centres in this state, which has resulted in long waiting times for parents to be accepted into their services.
For pragmatic reasons, in my view, the use of Children’s Contact Centres should be reserved for the most problematic cases involving allegations of extreme family violence or possible sexual abuse; issues of substance abuse; cases involving psychiatric illness; or where there is no relationship whatsoever between the parent or child concerned.
In these circumstances, in my view, it behoves the court to consider carefully whether it is appropriate to order a regime of supervised professional contact. In particular, I do not consider that such regimes should become a staple in each matter in which there is a difficult and conflicted relationship between the parties concerned or deficit in their capacity to communicate effectively. In addition, although the reports produced at the conclusion of such a process are undoubtedly useful, they are not a substitute for a thorough forensic examination of the dynamic of the family concerned.
In this particular case, Mr Gibb has an established relationship with X, with whom he has been regularly interacting since her birth. In objective terms, I consider that she is likely to be physically safe in her father’s care. The mother’s allegations of alcohol abuse, in respect of Mr Gibb, are inchoate. There is no evidence of any psychiatric dysfunction on Mr Gibb’s part. The allegations of family violence made by Ms Kearney are largely historical and are more likely than not to reflect situational violence. In addition, she herself concedes that she has acted inappropriately towards Mr Gibb.
Issues as to how X will cope with changes in her life and arrangements for her care loom large in this case, particularly from the mother’s perspective [section 60CC(3)(d)]. Accordingly, I accept any change in X’s contact arrangements must be gradual and cautious and not unduly experimental.
However, in my view, the mother’s proposal is too cautious and restrictive and not sufficiently ambitious, in view of the benefits likely to accrue to X from having a secure relationship with her father. After what I hope is close consideration, I have come to the conclusion that professionally supervised time is not appropriate in this case and contains as many pitfalls as it does possible benefits.
X finishes pre-school on each Wednesday. In my view, it would be appropriate for the father to collect X from pre-school, on Wednesday, and thereafter spend a few hours with her. The mother objects to such a regime, on the basis that X is likely to be tired following a busy morning spent engaging with other children. I acknowledge that this may be so, but in my view, it is important that X begin to spend time with her father and this is likely to be the best time available.

In addition, it seems to me that it would be appropriate for X to spend time with her father and paternal grandparents on one day at the weekend. In order to ensure that this period is as incident free as possible, I will direct that Mrs Gibb Senior collect and return X from the mother’s home and that one of the paternal grandparents be present for the whole of the period so ordered.
I accept that there will be logistical issues arising because of the need for travel to a suitable location for the time to occur. I do not propose to be prescriptive in respect of the exact location of the time. I am conscious that winter has only recently ended and it may be undesirable for time to occur outside. It does not seem to me, at this stage, to be inappropriate for the time to take place at either Mr Gibb’s home or that of the paternal grandparents. But this will be a matter for each of them.
In these circumstances, I will extend the time for the father to spend time with X. The time will be from 9:30am until 2:30pm, to take into account travelling time.
I accept Ms A’s evidence that X is an anxious child. I can also appreciate why Mr Gibb is suspicious of her involvement with the child. I acknowledge that it is appropriate that there be an objective assessment of the family, including the nature of X’s relationship with each of her parents. Mr Gibb needs to be fully involved in this assessment. Accordingly, I will direct that the parties jointly instruct an appropriately qualified expert, to be agreed between them, to conduct a family assessment report, at their joint expense, by the end of January 2017.
Following the completion of this report, in the new year, consideration can be given to what should be the next step in the case, including whether the matter needs to be fixed for final hearing or the arrangements for X to spend time with her father should be reconfigured.
Given the tensions between the parties and the mutual allegations of family violence, I have come to the conclusion that it would not be appropriate to apply the presumption of equal shared parental responsibility in this case. In any event, this is not a case which concerns either equal time or substantial and significant time, at this juncture.
In my view, the regime which I envisage is a conservative one. I also appreciate that Ms Kearney is likely to consider it inappropriately extensive, notwithstanding her apparent indication to Ms A that she wishes X to have a close relationship with her father.
Ms Kearney’s responsibilities in respect of the order are clear. She must encourage and support X to spend time with her father, as directed by the court. This is an obligation to be proactive and constructive.
In my view, although delivered more than twenty years ago, the comments of the Full Court (Nygh J), in Stevenson & Hughes[11] remain highly relevant to today’s social context. It was said as follows:
“… There is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the door step and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong. …”
[11] Stevenson & Hughes (1993) 16 Fam LR 443 at 447
I will direct that a copy of these orders be made available to the officer in charge of the (omitted) Pre-School so that he/she is aware that Mr Gibb will be collecting X on Wednesday afternoon and the child can be prepared for this eventuality.
At the core of the parties’ various issues, with one another, as parents, lie the deficits in their ability to communicate effectively, respectfully and clearly about issues to do with X. It is likely to be in X’s best interests that the parties take steps to improve their communication skills with the aim being, as much as possible, to enable them to adopt similar approaches to her care and for relevant information about her to pass freely between them.
I will direct that a communication book pass between them, either directly or via the paternal grandmother, in which each will record relevant details of X’s life and care. The mother can give details of the child’s dietary preferences; what are her favourite activities; and any special idiosyncrasies which she may have. Importantly the book should contain all relevant details pertaining to her health, including whether she has been to the doctor or dentist; suffered any physical mishap or illness or been prescribed any medication. The aim being to keep Mr Gibb abreast of how the child is faring.
For his part, the father should record what he and X do together and where they do it. What meals the child has and whether she has a nap. The rationale for such details being to provide reassurance that all is well in respect of his involvement with X and the child’s needs are appropriately met.
I expect both parties to commit to the process of the communication book sincerely and proactively. The order is not intended to be a tokenistic one. If the parties prefer the communications to be in electronic form, in keeping with the digital age in which we live, I have no objection. The aim is that information, relevant to X, passes freely and politely between them in real time.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 8 September 2016

[2016] FCCA 2339

8 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies