Goyne and Goyne - [2010] FMCAfam 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOYNE & GOYNE

[2010] FMCAfam 276

FAMILY LAW – Interim parenting orders – admissibility of document – s.131 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), s.131
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 64B and 69ZM to 69ZX

Applicant:

MR GOYNE

Respondent:

MS GOYNE

File Number:

ADC 4540 of 2009

Judgment of:

Simpson FM

Hearing date:

19 February 2010

Date of Last Submission:

19 February 2010

Delivered at:

Adelaide

Delivered on:

31 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Howe Martin

Counsel for the Respondent:

Ms Lindsay

Solicitors for the Respondent:

Ann Josephson Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Lee

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission

ORDERS

Until further order, paragraph 1 of the Order made on 19 February 2010 do continue.
Until further order, the father do spend unsupervised time with the child [X] born [in] 2005 as follows:
(a)in the intervening week on Saturday from 1pm until 5pm, with handover to take place inside McDonalds at [omitted]; and
(b)on [date omitted] 2010 from 2pm until 5pm, with handover to the father to take place at Child Care and handover to the mother to take place at the mother’s home.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 4540 of 2009

MR GOYNE

Applicant

And

MS GOYNE

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application by the father of a child, [X], born [in] 2005 for parenting orders in relation to the time that the child might spend with the father and, if further time is to be allowed, whether that time should be supervised.
On 19 February 2010 orders were made by consent and included the following:
1.That the father spend time with the child [X] born [in] 2005 each alternate weekend from 1.00pm to 5.00pm on Saturday under the supervision of Ms P and commencing 13 March 2010.
The father seeks an order that he have unsupervised time with the child in the intervening week on Saturday from 1pm until 5pm and on the child’s birthday ([date omitted] 2010) from 2pm until 5pm. The mother says that this additional time should be supervised.

Evidence before the Court

The father’s initiating application was filed on 24 November 2009. It is supported by the following affidavits:
a)Affidavit of the applicant father sworn on 5 November and filed on 24 November 2009;
b)Affidavit of the applicant father sworn on 22 December 2009 and filed on 6 January 2010;
c)Affidavit of the applicant father sworn and filed on 8 February 2010;
d)Further Affidavit of the applicant father sworn and filed on 8 February 2010;
e)Further Affidavit of the applicant father sworn and filed on 8 February 2010; and
f)Affidavit of Ms P, a person who has supervised the father’s time with the child, sworn and filed on 8 February 2010.
The mother’s response was filed on 15 December 2009. It is supported by the following affidavit material:
a)Affidavit of the respondent mother sworn on 14 December and filed on 15 December 2009;
b)Affidavit of the Ms J, solicitor for the mother, sworn and filed on 11 January 2010; and
c)Affidavit of the respondent mother sworn on 18 February 2010.
This application first came before the Court on 21 December 2009 at which time the matter was adjourned to 23 December 2009 for interim argument. On 23 December 2009 orders were made by consent. Whilst noting that the father did not admit that it was necessary for his time with the child to be supervised, orders were made as follows:
1.The child [X] born [in] 2005 do live with the mother.
2.The said child do spend time with the father as follows:
a)for a period of five (5) hours on Christmas Day to be supervised by Ms P; and
b)for a period of four (4) hours on 16 January 2010 to be supervised by Ms P and subject to paragraph 3 of this Order.
3.The time provided for in paragraph 2(b) of this Order proceed only upon Ms P having signed an agreement to supervise, which agreement acknowledges the terms and conditions of supervision as provided for by the Legal Services Commission brochure to that effect.
4.Pursuant to Section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be urgently appointed to represent the interests of the said child and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia forthwith and the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
5.The parties 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 to be undertaken by a psychologist or counsellor to be agreed between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time, such assessment to include observed interaction between the said children and each parent and, at the discretion of the family assessor, home visits to each parent, with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
6.This matter be adjourned for interim argument to 27 January 2010 at 2:15pm (NOTING one hour allowed).
The matter came on again on 27 January 2010 at which time I heard substantial argument by counsel for each of the parties. During this argument it became apparent that there were anomalies in relation to the applicant father’s Affidavit filed on 24 November 2009. Those anomalies included that the affidavit purported to be sworn on 5 November 2009 but contained a letter (Annexure GNG-2) dated 11 November 2009 and therefore post-dating the Affidavit from Dr M, a registered psychologist. The body of the Affidavit (at paragraph 11) said that Annexure GNG-2 “is a true and correct copy of a report prepared by Dr M setting out the details of the treatment and counselling that I have received since first meeting with her in November 2009”. Because of the anomalies, counsel for the mother raised objections to the affidavit whereupon counsel for the applicant father sought that the matter be adjourned for the anomalies to be addressed. The following orders were made on 27 January 2010:
1.The respondent mother’s costs of today be reserved.
2.The applicant father file and serve any further affidavit by 8 February 2010.
3.Further consideration of the matter is adjourned to 9.30 am on 19 February 2010 before FM Simpson for interim argument with 1 hour allowed.
4.Solicitors for the applicant shall forthwith advise the Associate to FM Simpson on [phone number omitted] on becoming aware that the matter has settled or for any other reason that the interim argument will not be proceeding to full hearing on the day allowed.
In the first of the father’s Affidavits of 8 February 2010 he stated that his (now previous) solicitors requested a report from Dr M by letter dated 9 November 2009 and that Dr M responded by providing his solicitors with the report dated 11 November 2009. No further explanation was provided as to how the earlier Affidavit enclosing the report of 11 November 2009 could have been sworn on 5 November 2009. Notwithstanding that no explanation has been provided I consider it appropriate to take into account the information contained in the father’s affidavit purporting to have been sworn on 5 November 2009 and filed on 24 November 2009. Counsel for the mother did not suggest that I should not do so. The affidavit is short and exhibits numerous documents including a domestic violence restraining order, Dr M’s letter, a report from [N] Children’s Contact Service concerning the supervised contact that the child had with the father at that service and a number of other relevant documents.

Admissibility of the letter dated 10 February 2010

Before leaving the question of the evidence that was before the Court I should deal with the question of whether I should consider a certain letter dated 10 February 2010 which contains information about certain negotiations that took place between the parties to try to reach agreement about the time that the child should spend with the father and whether or not that time should be supervised.
The parties through their counsel did not wish me to see the letter to determine its admissibility. Instead I was asked to determine the question of admissibility on the basis of the submissions put by counsel for each of the parties.
Counsel for the father informed me that the letter dated 10 February 2010 was directed towards settlement negotiations and contained certain proposals put by the party or parties. It was put that s.131(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires that, unless one of the provisions of s.131(2) applied, evidence of the contents of the letter should not be adduced. It was submitted that the only possibly relevant sub-paragraphs of s.131(2) were sub-paras.(g) or (h). The exception provided for in sub-para.(g) is that:
evidence that has been adduced in the proceedings, or an inference from evidence that has been adduced in the proceedings, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence.
Sub-para.(h) provides that:
the communication or document is relevant to determining liability for costs.
It was put by counsel for the father that s.131 seeks to prevent unnecessary negotiations being put before the Court. It was argued that the information sought to be relied upon by the mother was either not relevant or, alternatively, not sufficient relevant for it to be admitted.
Counsel for the mother submitted that in determining whether the letter should be admitted into evidence the Court should have regard to Division 12(A) of the Family Law Act 1975 (Cth) (“the Family Law Act”) which identifies the principles with which the Court should conduct child related proceedings. In particular counsel for the mother relied upon s.69ZN(5), being Principle 3. That Principle states that:
The proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Whilst I accept that this Court should apply the principles contained in s.69ZN of the Family Law Act I do not accept that Principle 3 has any application to my determination of whether the letter here referred to should be admitted into evidence on the basis of one of the exceptions contained in s.131(2) of the Evidence Act. Counsel for the mother failed to provide any authority to support the proposition that she put. Further, I do not believe that the principles referred to were intended to be used to interpret the Evidence Act and in particular s.131. In fact, s.69ZN(2) of the Family Law Act specifically states that regard is to be had to the principles in interpreting Division 12A. This division includes s.69ZM to s.69ZX (inclusive). Section 69ZT identifies which sections of the Evidence Act shall not apply to child-related proceedings. Section 131 of the Evidence Act is not excluded. I reject the submission that Principle 3 should influence my determination pursuant to s.131 of the admissibility of the letter.
In parenting proceedings under the Family Law Act parties will often be negotiating over many months, if not years. The negotiations will often relate to the interim arguments for the care of the child or children. Where, as here, there have been substantial parenting orders made (in this case on 23 December 2009) after a lengthy period of negotiations (in this case from January to September 2009) it is reasonable for the Court to conclude that a later letter (in this case dated 10 February 2010) is part of a fresh round of negotiations dealing with care arrangements for a different time and in different circumstances. Prima facie, s.131(1) of the Evidence Act should prevent disclosure of the letter.
Counsel for the mother further argued that there had been a waiver of the privilege in relation to settlement negotiations. In particular she pointed to the paras.12, 14, 16, 18, 19, 20, 21, 26 and 30 of the father’s Affidavit sworn on 5 November 2009 and filed on 24 November 2009. A close examination of the paragraphs discloses that they deal with certain negotiations that were taking place between the parties from January to September 2009. The latest of these negotiations was some five months prior to the letter that is sought to be put into evidence. The fact that there has previously been disclosure of certain earlier settlement negotiations does not inevitably lead to the conclusion that later negotiations will not be entitled to the protection provided by s.131 of the Evidence Act.
In deciding the admissibility of the letter concerned I ask myself whether the particular evidence has previously been disclosed with the express or implied consent of all persons in the dispute (s.131(2)(b)) or whether the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced. It has not been suggested by counsel for the mother that the particular evidence contained in the letter of 10 February 2010 has previously been disclosed whether wholly or partly.
Counsel for the mother indicated that the evidence sought to be put into evidence by way of the letter contradicted the father’s evidence that “(i)t is unreasonable for the mother to suggest that it is necessary for the child’s time with the father to continue to be supervised”. Even if the father had indicated by way of the letter of 10 February 2010 that he did not consider it unreasonable for the mother to require that the father’s time be supervised I do not consider that it would be appropriate for the evidence to be admitted. In settlement negotiations parties often make concessions that they might not generally make in open court or by way of affidavit. It is desirable that the parties take all reasonable steps to attempt to reach an amicable and sensible resolution of disputes such as these. Parties should not be discouraged from making such concessions as might occur if the Court overrides the provisions of s.131 of the Evidence Act and admits the concessions made into evidence on the hearing of interim applications or at trial.
Finally, I agree with counsel for the father that evidence of what the father may or may not have said was his belief about whether the mother was acting reasonably in requiring the father’s time to be supervised is of such marginal relevance that it ought not to be admitted.
I decline to receive the letter of 10 February 2010 as evidence on the hearing of this interim application.

Allegations by mother and father’s responses

The mother makes numerous allegations against the father of his violent and other concerning behaviour.
It is on the basis of this behaviour that the mother maintains the position that any time that the child has with the father should be on a supervised basis. This is the mother’s position notwithstanding the fact that the father has, for some time, been having supervised time without any significant incidents.
The mother says that the father would take out his frustration on the family’s dog by deliberately kicking it if it was not obedient. In relation to the mother’s allegation of violence directed towards the family dog the father says that he used ordinary disciplinary measures when dealing with the dog and never deliberately kicked or hurt the dog.
The mother says that the father showed “violent anger” towards her on one occasion throwing long clippers from the roof of the house onto the ground near to where the mother was standing. She concedes that the father did not aim his throw of the clippers directly towards the mother. In relation to the mother’s allegation that he showed violent anger towards her the father denies this. In relation to the clipper incident he says that he was standing on a stepladder and dropped the pair of clippers from the ladder onto a patch of grass in the garden. He did not throw the clippers at the mother or anywhere near her.
The mother says that the father showed compulsive behaviour: always stacking dishes in a particular way; only using black coat hangers and requiring the wife to use white ones; timing the coffee machine every time it was used; requiring hospital bed corners on bed sheets; becoming annoyed when the child’s toys were left out; cleaning up sand when the child spilt the sand from her sandpit. She says that when these things and many others were not done to the father’s liking he would throw things and become very angry. In relation to the mother’s allegation of the father’s compulsive behaviour he gives satisfactory explanations about each of the allegations made.
Without intending to make any findings of fact in relation to the allegations of compulsive behaviour at this stage or the effect that this behaviour might have on the child, I do not believe that the mother’s allegations when viewed in the light of the father’s explanations should have any significant effect on the parenting orders that I propose to make.
The mother mentions an incident that she says occurred in May 2008 during a driving holiday to New South Wales. The child was two years old at the time. The child was whining in the back seat of the car and then started to shriek. The mother says that the father abruptly pulled over, went to the back seat and removed the child from her car seat. He then put the child on the edge of the road, got back in the car and drove off. The mother says that she demanded that he return to the child. She says that the child was standing on the side of the road and was extremely upset. The mother says that the father admitted to the mother at the time that it was “a silly thing to do”.
The mother says that a few days later (presumably whilst still on the New South Wales driving holiday) the child had fallen asleep in the car and had woken up and was grizzling. She says that the father again stopped the car, this time went to the child and “picked her up and flung her hard onto the ground”. The mother says the child landed on her bottom and began to cry. The father then got back into the car and drove off leaving the mother and the child on the side of the road. She says that the father returned twenty minutes later and picked the mother and child up.
The mother says that a few days after these incidents the child spilt some water which resulted in the father hitting her on the bottom so hard that she was lifted off the ground. The mother says that this resulted in the child crying and wetting her pants.
In relation to the mother’s allegations of the father’s behaviour during the driving holiday to New South Wales in May 2008 the father says that the child began to misbehave whilst sitting in her seat in the back of the car. The father says that she started throwing crayons and coloured pencils from her colouring kit at the mother and the father who were in the front seats. He says that the child was having a tantrum. He says that the mother said words to the effect of “[X] if you don’t behave Daddy will pull over and leave you on the side of the road”. The father says that the mother was clearly irritated by the child’s behaviour. He acknowledges that he too was irritated by [X] throwing objects around the car and the father admits that he pulled over to the side of the road, took the child from her seat and put her on the grass verge of the road. He says that the mother got out of the car at that point and stood alongside the child. The father says that he returned to the driver’s seat and drove off. He says that he drove around the block and drove straight back to collect the child and the mother. He says that this only took a few minutes.

The father says that he should not have carried through the mother’s threat and that it was inappropriate for him to remove the child from the car on that occasion. The father deeply regrets his behaviour on that occasion.
The mother says that on returning from this holiday to New South Wales she instituted a “no hitting” policy putting the father on notice that there was to be no more such violence. The father says that at no time did the mother speak to him about a “no hitting” policy. He says that he has never hit the child. The father denies the mother’s evidence of the conversation or conversations with the mother in which she says, he admitted hitting the child. The mother says that a few months after the institution of the “no hitting” policy the father admitted to her that he had hit the child again. She does not say what the circumstances were of the father hitting the child.
The mother says that a few weeks after this conversation she asked the father to take the child for a walk while she was cooking dinner. She says that when the father and the child arrived home the child’s knees were grazed and bleeding. She says that the father told her that the child had refused to leave the playground when he told her to do so and that because of this he dragged her along the ground.
In relation to the mother’s evidence of the father taking the child to a playground whilst the mother was home cooking the father says that when it came time for the father and child (and dog) to leave the playground the child refused to leave the play equipment. The father says that he tried a number of things to persuade the child to accompany him home. He tried walking away from the play equipment to the edge of the park but the child did not follow. Finally the father went back and lifted the child off the play equipment, took her hand and made her walk beside him on the edge of the path. At the kerbside the child tripped and landed on her knees grazing them a little bit. The father says that by holding her hand firmly he prevented her from falling further. He says that the child was a little upset as she was resentful that she had to leave the play equipment. He says that the child wanted the father to carry her but that he refused. He says that he did not at any time drag the child along the ground. When he arrived home he explained to the mother what had occurred. He says that by the time the father arrived home with the child the child had got over the incident and ate her dinner after the mother had wiped her knees.
The mother says that a few weeks later again when the parties were out to dinner at a family restaurant the child would not eat the “right” piece of garlic bread with the result that the father forcibly flung the child back into her chair and screamed at her: “Stop fucking around, stop fucking around”.
In relation to the mother’s allegation that the father “… forcibly flung [X] back into her chair” when the child would not eat the “right” piece of garlic bread the father says that the child became upset and started to behave badly at the restaurant. He says that the child’s behaviour escalated into a tantrum. He says that as she was thrashing around in her seat that the chair toppled over. The father says that he picked up the chair and reset it after which he picked the child up and put her down firmly into her seat. He says that he raised his voice and told the child to sit down, shut up and eat her dinner. He says that he recalls swearing at the child when he was telling her off. He says that he deeply regrets speaking to the child that way and that he now knows that his comment would have caused the child stress. The mother says that the relationship came to an end after this final incident.
The father says that the mother and he separated on 20 October 2008 at which time the mother remained in the former matrimonial home at Property C with the child with him moving into rental accommodation.
In November 2008 the mother obtained a Domestic Violence Restraining Order.
The father acknowledges that there were serious incidents between the mother and him towards the end of the marriage and that he had difficulty controlling his emotions. Clearly, he does not suggest that the incidents were as serious as has been suggested by the mother. He says that he was not ever physically violent towards the mother or the child but that he did speak to them on occasions in a manner that he now knows to be inappropriate. I am unable to make any findings of fact in relation to these matters. The father says that he received counselling treatments since separation to overcome the difficulties that he had in controlling his emotions. He says that as a result he has been able to control his emotions appropriately by applying the techniques that he has been taught during his counselling sessions.
The father says that he poses no risk to the child and that, after having a lengthy period of supervised contact, he now seeks time with the child on an unsupervised basis. He says that he is committed to offering the child a safe and secure home environment and that he will ensure that she is appropriately cared for at all times while in his care. He says that he is a competent and capable father and that it is his genuine desire to have an ongoing relationship with the child.
In relation to his behaviour in the last few months of the relationship the father says that he did not at the time fully appreciate how much distress his behaviour was causing [X] and the mother.

Best interests of the child

Parenting orders such as these are defined by s.64B of the Family Law Act. The principles governing the Court’s determination of parenting issues are set out in Part VIII of the Family Law Act. I note the objects of this Part and the principles underlying them contained in s.60B.
In deciding whether to make particular parenting orders s.60CA requires that I must have regard to the best interests of the child as my paramount consideration. In determining what is in the child’s best interest I start by considering the matters set out in s.60CC(2) (that is, the “primary considerations”) and the matters in s.60CC(3) (the “additional considerations”).
Section 60CC(2) requires that I take into account, firstly, the benefit to the child of having a meaningful relationship with both the child’s parents and, secondly, the need to protect the child from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. The primary question in this case is whether the father should be having any, and, if so, how much, unsupervised time with the child. I take into account the allegations made by the mother of the inappropriate conduct by the father that she alleges. I also take into account the father’s responses to those allegations. It is always difficult to assess the weight to be given to conflicting evidence by parties such as these without the benefit of hearing them give evidence from the witness box and being cross-examined. Without making any findings as to the credibility of the parties I do not believe that the child would be in any significant danger of physical or psychological harm were she to be spending time with the father on an unsupervised basis. I recognise, however, that the mother expresses strong views to the contrary. It is important in matters such as these that the mother have confidence that the child will be safe in all senses of the word whilst in the father’s case on an unsupervised basis. The mother, if acting reasonably, already has developed some confidence in the father’s ability to care for the child in light of the satisfactory reports that have obtained from the supervisor, Ms P, and the report compiled by Ms B of Anglicare SA at the [N] Children’s Contact Service.
In addition, we have the report of Dr M of 11 November 2009, in which she says:
In my opinion, Mr Goyne has done all that he could be reasonably expected to do, to address the reasons for the break-up of his marriage and for the outbursts of anger towards his child. Now that he understands his proper role as a father, I am confident that he will be able to conduct himself appropriately as a loving, caring father if he is permitted unsupervised access. For example, as reported by Ms B, the coordinator at Anglicare, his daughter did not show any fear during all supervised access visits and was even able to talk to him about the past distressing events without feeling threatened. This shows that she did not feel any threat from him. In his turn, Mr Goyne readily apologised to his daughter for any past hurts and was forgiven. The Anglicare worker supervising the visit described it as “happy and relaxed, with the pattern of conversation of equal initiation, free-flowing, centring on play activities …” indicating that his daughter felt no distress from being with her father.
In addition, we have the reports from Professor K, a psychiatrist with SA Health, of 19 and 21 January 2010. As was pointed out by counsel for the mother, these reports are in the same terms save that the earlier report included a paragraph which stated:
When he is distressed he has a pervasive view that the world is a very unhappy place to live, he feels a pervasive sense of things being unreasonably black and that bad things could happen. He becomes preoccupied with the threats of life such as climate change etc. He is not in that frame of mind at the present time.
In both reports Professor K states:
It was in relation to this last episode of depression that [the father] had outbreaks of aggression towards his child [X]. This was not characteristic of his earlier episodes of depression.
…
[The father] was not preoccupied in a depressive manner with the problems that he faces, although it is true that he wishes to establish a manner in which he could have access to his daughter [X]. He does not particularly like but does not resent the notion of supervised access and indeed, he volunteered the idea that even if he had free access, he would probably have someone there at the same time to prevent any misunderstandings occurring.
He was not preoccupied in a depressive manner with his separation from his wife although this was clearly a sad event for him. He believes that his depression contributed to a worsening of their relationship, in that he adjusted to being depressed by devoting himself to his work almost solely and ignoring everything outside work.
I investigated the possibility that he might have had manic episodes in the past but found no evidence of this so that I disclude the possibility that he has bipolar disorder.
I investigated the anxiety range of disorders including obsessive compulsive disorder and found no evidence of any of these. He has absolutely not features of obsessive compulsive disorder and is not particularly anxious. He has never had panic attacks.
There was no evidence of psychotic disorders or paranoid disorders.
On the drug and alcohol front … he is a very modest drinker, does not use illicit drugs and does not smoke.
Professor K concludes as follows:
…I conclude that his current mental health is normal and that he has no ongoing illness.
Concerning ongoing treatment, I can see a continuing role in [the father] seeing Dr M who seems to be very helpful to him and I would be happy to see him from time to time if you required it to be the case.
Concerning his ongoing medication, there is a case for arguing that he should have continuing medication in that he has had four episodes of depression, but it is not a strong case providing that he has continuous follow up.
In terms of his prognosis, he has undoubtedly been helped a great deal by Dr M and I suspect that his prognosis has been greatly improved because of his contact with her. There is no reason to suppose that he would again become aggressive towards his child if he became depressed again. (emphasis added.)
I take into account all of these matters in deciding what the appropriate orders may be.
The additional considerations that I am required to consider are set out in s.60CC(3) of the Family Law Act. Since the principal issue in this case is whether the father should be having any unsupervised time with the child I do not propose to address in these Reasons each of the additional considerations. I am satisfied that the child enjoys her time with the father and wishes it to continue. I am also satisfied that the child will not become distressed if she has unsupervised time with the father. I take into account the allegations made by the mother and the fact that a Domestic Violence Restraining Order was made on 20 November 2008. I do not consider the child to be in any significant risk if the father’s time with the child is on an unsupervised basis. The Independent Children’s Lawyer supports the father having some unsupervised time with the child at this stage.
I propose to make the orders that the father seeks.
I make the orders to be found at the beginning of these Reasons.
I will hear the parties on the question of costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: J. Semler

Date: 31 March 2010