Gomez and Banks

[2013] FamCA 1109

FAMILY COURT OF AUSTRALIA

GOMEZ & BANKS [2013] FamCA 1109

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child – Interim proceedings – cross-allegations as to violence and aberrant behaviour – nature of interim proceedings where overwhelming factual issues – necessity for orders to reflect best interests of child in terms of allegations made – rebuttal of presumption as to parental responsibility – child to continue to reside with mother – child to spend supervised time with father – matter adjourned to await single expert report.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA

Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
Goode and Goode [2006] FamCA 1346
MRR v. GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] Fam CAFC 92, (2009) FLC93-405, 41 Fam LR 483

APPLICANT: Mr Gomez

RESPONDENT: Ms Banks

INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

FILE NUMBER: PAC 4181 of 2012

DATE DELIVERED: 13 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Caldwell Martin Cox

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

Orders

1. That pending further order, the child B born … 2009 (“the child”) live with the Mother.

2. That each party must:

   (a)Contact the C Contact Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spends with the Father;

   (b)Attend the assessment;

   (c)Comply with any appointments made by the Contact Centre for supervised time;

   (d)Comply with all reasonable rules of the Contact Centre; and

   (e)Comply with all reasonable requests or directions of the staff of the Contact Centre.

3. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Order 5 then the Independent Children’s Lawyer has leave to relist the matter on short notice by application to the court in chambers.

4. The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter on short notice by application to the court in chambers.

5. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the child on two occasions each week being midweek or weekend time as first available at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

6. The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

7. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 5, then, contact shall occur at the times that are offered by the Contact Centre.

8. The time the child spends with the Father under Order 5 is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.

9. The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.

10. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then the Independent Children’s Lawyer may on re-list the matter on short notice by application to the court in chambers.   

11. If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the Independent Children’s Lawyer has leave to forward such orders to the court in chambers for the making of consent orders.

12. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

13. Otherwise liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in chambers as to the appointment of an appropriate Single Expert if no agreement can be reached provided that if such agreement is reached the Independent Children’s Lawyer has leave to forward such orders to the court in chambers for the making of consent orders.

14. That otherwise all interim applications before the court be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gomez & Banks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4181  of 2012

Mr Gomez

Applicant

And

Ms Banks

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These are interim parenting proceedings between the Applicant Father and the Respondent Mother and concern the parenting arrangements in relation to the child B born in 2009.

2. At interim hearing the Applicant Father sought orders that in summary were as follows:

   a)That the Father have sole parental responsibility for the child;

   b)That the child live with the Father;

   c)That the Mother be restrained from contacting or approaching the Father or the said child except as provided for in orders and the Mother not enter within 500 metres of the Father’s residence, the Father’s place of employment, and the child’s preschool;

   d)That the child spend supervised time with the Mother at the Children’s Contact Service at Suburb D;

   e)That a single expert be appointed to provide an expert report to the Court in relation to the parenting issues;

   f)That the Father be permitted to cause the child’s hair to be professionally cut in such manner as is determined by the Father.

3. The Mother sought orders that in summary were:

   a)That the Mother have sole parental responsibility for the child;

   b)That the child live with the Mother;

   c)That the child spend supervised time with the Father at the Children’s Contact Service at Suburb D;

   d)That there be a mutual non-denigration order;

   e)That both parties be restrained from discussing the proceedings and any allegations made by each of the parties with the child;

   f)That both parties be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed on the Watch List;

   g)That the Father be restrained from contacting or approaching the Mother and the child except through his legal representatives or as permitted by Court order;

   h)That the Father be restrained from assaulting, molesting, harassing and threatening or engaging in any conduct that intimidates, stalks or in any other way interferes with the Mother and the child.

Background

The Parties

1. The Mother is presently aged 43 years of age and residing in rented premises at Suburb E near Sydney.

2. The Father is presently aged 44 years and resides at F Town. He is unemployed and in receipt of disability benefits. The Father resides on a 29 acre property on which there are two separate homes. The property is owned jointly by the Father and his brother. The Father’s brother resides in a separate dwelling on the property with his Wife and his three children. The Father resides in a separate cottage on the property. The only other occupant of that cottage is the Father’s son now aged 21.

The Parties Relationship

1. The parties commenced a relationship in 2005 and did not cohabit.  The subject child is a child of that relationship.

2. It is common ground that the Father spent regular time with the child B subsequent to the child’s birth and up until approximately 4 July 2012.

3. The evidence before the Court despite clearly differing assertions by each of the parties one against the other demonstrates that the parties were in a conflictual and complex relationship. The Father accuses the Mother of being extremely protective of their relationship and being guilty of unnecessary aggressive behaviour. The Father further makes allegations in relation to the Mother as to her alcohol consumption over the period of their relationship and other aberrant behaviour.

4. Following the birth of the child the Father says that he had regular and substantial time with the child and from the child turning three months of age the Father spent from Wednesday afternoon until Thursday morning each week, each alternate weekend from Friday afternoon to Monday morning and half of all school holiday periods with the child. The Mother disputes that the Father had significant time with the child in school holiday periods.

5. The Father further asserts that the Mother in addition would drop the child to the Father’s workshop on two or three occasions per week for the Father to care for the child for various periods of time.

6. The Father says that shortly after Christmas 2011 the Mother moved to live in rented premises in the Suburb E area outside Sydney. The Father says from that time his Wednesday nights with the child ceased but he continued to have the child on alternate weekends with the Father collecting the child from his preschool on Friday afternoons and returning the child to the preschool on Monday mornings and for school holiday periods. He further asserts that the child was in his full-time care for a block period of about six weeks in February/March 2012.

July 2012 and thereafter

1. On 4 July 2012 the Father asserts that the Mother unilaterally stopped him having time with the child. It was at this time the Father asserts that he advised the Mother that he had recently formed a relationship with a girlfriend. The Mother made it quite clear to the Father that she did not wish the child to spend time with the Father whilst his girlfriend was present.

2. In late July 2012 the Father became aware that the Mother had withdrawn the child from his preschool kindergarten. The Mother spoke to the Father thereafter with the Mother informing the Father that upon the payment of certain funds into her bank account she would facilitate the child spending time with him.

3. A series of text messages then passed from the Mother to the Father. The nature and tone of those messages became gradually more than denigrating and abusive with the Mother clearly of the understanding that the Father had formed a relationship with a woman of Asian background. The Mother continued to deny the Father time with the child.

4. The Father commenced these proceedings on 21 September 2012. Initially the Father’s application was listed before the Court on 5 November 2012 and then again on 30 November 2012 during which time the Father was unable to effect personal service on the Mother. Subsequently on 13 December 2012 the Mother was served with the Father’s present application.

5. As a result of the allegations made by the Mother in relation to the Father in these proceedings the proceedings were transferred to this Court and placed in the Magellan List. In accordance with the Magellan protocol a report was requested from the New South Wales Department of Family and Community Services by order made on 10 February 2013. That report is Exhibit B in the present proceedings.

The Magellan Report

1. The report provides a summary of the child protection history in relation to the subject child B.

2. The report evidences contact with the Department in relation to notifications commencing on 21 December 2012 that the child was being sexually assaulted, exposed to sexual harm and exhibiting concerning behaviours commencing on 21 December 2012. 

3. It is noted that the first report was about 10 days after the Mother was served with the Father’s application in these proceedings.

4. The report confirms that the Department had received five risk of harm reports since 21 December 2012 in relation to the child. Assessments in relation to the notification had been undertaken by the Department, the JIRT referral team and G Community Services. The report notes:

   … the sexual abuse allegations and all subsequent allegations in relation to this investigation are not substantiated by [Suburb D] JIRT after an  extensive investigation found no corroborating evidence to support any of the allegations. During the course of the investigation it became evident that [B] is at risk of psychological harm due to his parents animosity and aggressive behaviour towards each other. [B’s] mother was interviewed on three occasions by JIRT officers and at times during these interviews and when giving her police statement became highly emotional, agitated and at times aggressive. When the mother was asked to clarify information or was challenged, her version of events would sometimes differ making it difficult to determine fact from emotion…

5. The report states that the Department’s concerns for the child are as follows:

   Community Services do hold concerns for [B’s] psychological well-being due to the continued animosity between his parents and the current emotional state of his mother…… During the JIRT investigation the mother at times became irrational, difficult to engage, aggressive and at times displayed inappropriate behaviour. Community Services do hold concerns in relation to the mother’s current emotional state of mind.

6. The report is dated 10 April 2013.

7. The Father for his part rejects all of the Mother’s allegations and makes allegations against the Mother in relation to what he asserts to be her previous engagement in the sex industry, her aggression, jealousy and aberrant behaviour.

8. The Mother for her part in these present proceedings persists with and maintains the various allegations against the Father that had been the subject of the Departmental and other investigations.

9. Otherwise she makes further allegations in relation to the Father’s conduct in relation to her during their relationship including assaults, aggressive and argumentative behaviour and animal cruelty.

Subpoenaed Material

1. During the course of submissions various documents produced on subpoena were marked into evidence. These included:

   a)Records from the New South Wales Police Service;

   b)Files from the New South Wales Department of Family and Community Services;

   c)H Preschool;

   d)Dr I, in relation to the Mother;

   e)Ms J, psychologist, in relation to the child;

   f)Ms K, psychologist, in relation to the Mother;

   g)Relationships Australia, NSW.

2. A consideration of the subpoenaed material is supportive of the conclusions reached in the Magellan Report in relation to that aspect of risk of harm to the child and is further indicative of the nature of the relationship between the parties in particular their allegations otherwise one against the other.

The Nature of Interim Proceedings

1. In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

THE LAW

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The Full Court in Goode and Goode provided a “framework” as to how applications for parenting orders are to be determined. This included:

   (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);

2. The High Court in MRR v. GRR [2010] HCA 4 affirmed the legislative pathway.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

1. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

2. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)];

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)];

3. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

The Presumption

1. As set out above there are significant issues of fact in dispute between the Father and the Mother that are simply incapable of determination in the context of this truncated interim hearing. There are unresolved allegations insofar as this Court is concerned as to the risk of sexual abuse to the child by the Father or in the Father’s household, cross allegations one against the other in relation to violence and other aberrant behaviour.

2. The Court is accordingly not satisfied that in all circumstances of this matter the presumption should apply.

3. The Court is thus not required to consider the pathway outlined in s 65DAA that otherwise requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

4. In that circumstance the orders to be made by the Court fall to be determined by reason of a consideration of the best interest considerations set out in section 60CC of the Act.

Best Interests

1. As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the Court turns to look at the best interests considerations set out in s 60CC it should firstly consider the additional considerations.

The Additional Considerations

1. Section 60CC(3):

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views:

   There is no cogent evidence in relation to this consideration before the Court and having regard to the child being of immature years any such evidence would have little or no weight. This factor is of no assistance to the Court.

   b)The nature of the relationship of the child with:

   i)each of the child's parents; and

   ii)other persons (including any grandparent or other relative of the child):

   It is common ground that the child has always resided primarily with the Mother. The inference thus arising is that the child presently aged four years, is primarily attached to the Mother.

   However by reason of the Father’s substantial and significant time with the child at least until early July 2012 the inference is that the child has a relationship with the Father that is capable of being restored in cautious circumstances.

   There is no relevant evidence as to the nature of the child’s relationship with any other significant person.

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)to participate in making decisions about major long-term issues in relation to the child; and

   ii)to spend time with the child; and

   iii)to communicate with the child:

   The circumstances relating to this factor had been referred to above. Until July 2012 the Mother facilitated the Father in engaging in the child’s life as contemplated by this factor. Thereafter the Mother, ultimately for reasons yet to be fully examined and determined by the Court, has excluded the Father from the child’s life in all respects.

   The Mother of course during the same period has remained the child’s primary carer.

   A consideration of this factor favours a restoration of the child’s relationship with the Father in cautious circumstances and in circumstances where the Father is protected from further allegations by the Mother.

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child:

   A consideration of this factor is of little utility in the context of the present application.

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)either of his or her parents; or

   ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living:

   The Mother proposes that the child spend time with the Father in supervised circumstances at a contact centre. The Father for his part seeks that the Mother spend time with the child in supervised circumstances at a contact centre.

   The child’s circumstances at present are that he has no relationship with his Father. By reason of the issues in dispute between the parties it is appropriate to consider the effect on the child of recommencing his relationship with the Father in circumstances where the Mother’s professed concerns are addressed and the Father is protected from further allegations by the Mother.

   The Father seeks that the child be removed from the Mother’s primary care in circumstances where the child has only known the Mother as his primary carer. In addition the Father seeks orders that the Mother’s relationship with the child be significantly truncated to a few supervised hours each week at a contact centre.

   The Court is comfortably satisfied that the orders sought by the Father would bring significant distress and upset to the child and place the child in the Father’s untested care as primary carer.

   The Mother seeks a commencement of the child’s relationship with the Father in a supervised circumstance. The Court considers that such arrangements would be of significant benefit to the child in a restoration of the Father-child relationship pending the Court’s determination of a final basis. 

   A consideration of this factor favours the Mother’s application.

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis:

   This factor is of little significance as it is common ground between the parties that the C Contact Service has immediate placements available for midweek supervised time in relation to either parent’s time with the child.

   f)The capacity of:

   i)each of the child's parents; and

   ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs:

   This factor looms as significant. There are allegations made by the parties one against the other and concerning allegations made by the Mother as to the risk of sexual harm to the child when in the care of the Father. It may be that the question of capacity ultimately is determinative of final parenting arrangements in relation to the child.

   However a thorough analysis of parental capacity and the parties’ capacities as contemplated by this consideration awaits a more fulsome and expert report.

   The Court acknowledges the concerns expressed by the Department in the Magellan Report in particular as they touch upon the Mother’s behaviour and her emotional circumstances.  However she has been and remains the child’s primary carer.

   Ultimately there may be appropriate evidence that changes that position but at present the Court is unable to make a determination in this regard based upon the evidence before it.

   Accordingly a consideration of this factor favours the orders sought by the Mother.

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant:

   The facts touching upon this consideration had been referred to briefly above.  Relevantly the child is of tender years and has remained always in the primary care of the Mother. Otherwise a consideration of this factor is of little utility.

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)the likely impact any proposed parenting order under this Part will have on that right:

   This factor is not relevant to the present determination.

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents:

   The Mother’s actions in unilaterally suspending the child’s time with the Father have precipitated the present application.

   The justification or otherwise for the Mother’s actions will await a more fulsome consideration of the background circumstances. However at present leaving aside her assertions as to risk of sexual harm to the child in the care of the Father her other assertions as to risk ring somewhat hollowly where she facilitated the child having substantial time with the Father up until July 2012.

   The nature of the conflictual relationship between the Mother and Father does neither of them any credit in terms of the best interests of the child. A consideration of this factor will no doubt be significant in a final determination when the Court is able to make appropriate findings as to fact.

   However a consideration of this factor favours resumption in someway of the child’s relationship with the Father.

   j)Any family violence involving the child or a member of the child's family:

   In this matter there are allegations one against the other. Whilst the subpoenaed material would lead the Court to have some circumspection in relation to many of the Mother’s allegations against the Father an ultimate determination as to both parties alleged conduct can only await final hearing.

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)the nature of the order;

   ii)the circumstances in which the order was made;

   iii)any evidence admitted in proceedings for the order;

   iv)any findings made by the Court in, or in proceedings for, the order;

   v)any other relevant matter:

   This is not a relevant consideration.

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child:

   These are interim proceedings conducted against the background set out above. A consideration of this factor in the context of the present proceedings is of little utility.

   m)Any other fact or circumstance that the Court thinks is relevant:

   This is not a relevant consideration.

The Primary Considerations – s 60CC(2)

1. The primary considerations are:

   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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski v Albright[2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and said:

   … a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…

2. In McCall & Clark [2009] Fam CAFC 92, (2009) FLC93-405, 41 Fam LR 483 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J. of “meaningful relationship”.

3. There are concerning aspects in relation to an assessment of the relationship of the child between each of the parents as contemplated by this consideration. 

4. Should the Mother’s past and future behaviours and her emotional state compromise the nature of her relationship with the child to the extent that their relationship is not important, significant and valuable to the child but in reality presents negative aspects then that will weigh against the Mother in a final consideration of these proceedings. However that determination must await more fulsome and expert evidence.

5. Similarly the Court will be able to make factual determinations as to the nature of the child’s relationship with the Father in the context of this primary consideration and that determination can only await a final hearing and a consideration of the expert evidence to be obtained.

6. Accordingly a consideration of this factor in the context of the present application has little weight in the Court’s determination.

Section 60CC (2)(b) – need to protect

1. A consideration of this factor looms significantly in the context of this matter. However by reason of the truncated procedures relating to interim hearing in this Court and the Court’s inability to make appropriate determinations on issues of contested fact the Court is left with the position where it must adopt a safe course.

2. That course must address the Mother’s concerns in relation to the risks she asserts that face the child in the care of the Father and the Father’s concerns in relation to the child continuing to reside primarily with the Mother and the disruption of his relationship with the child.

3. The Court is satisfied for the reasons given above that it is appropriate in giving consideration to this primary factor that the Court facilitates a reintroduction of the child’s relationship with the Father in circumstances where he is protected from further allegations by the Mother and she has her concerns properly addressed by the Father’s time being undertaken at least on an interim basis in protective and controlled circumstances.

Conclusion

1. Accordingly the Court is satisfied in all the circumstances that it is in the best interests of the child for the child to remain primarily residing with the Mother and the Father having time with the child in supervised circumstances at the C Contact Service.

2. The Independent Children’s Lawyer supports such a course.

3. The Court is not satisfied that the evidence otherwise supports the injunctive relief sought by the Mother.

4. The Court will make orders accordingly.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 September 2013.

Associate:

Date:  13 September 2013