Grier and Anor and Henderson

FAMILY COURT OF AUSTRALIA

GRIER AND ANOR & HENDERSON

[2008] FamCA 35

FAMILY LAW – CHILDREN – Best interests – With whom a child spends time – Best interests of child – Family violence – emotional vulnerability of mother – Time spent with grandparent – Interim or final orders

Family Law Act 1975 (Cth)

APPLICANT PATERNAL GRANDMOTHER:

MRS GRIER

APPLICANT FATHER:

MR GRIER

RESPONDENT MOTHER:

MS HENDERSON

FILE NUMBER:

BRF

7657

1999

DATE DELIVERED:

11 January 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

7-9 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER:

Dr Sayers of Counsel

SOLICITOR FOR THE APPLICANT:

Morrison Lawyers

COUNSEL FOR THE APPLICANT

PATERNAL GRANDMOTHER:

Mr Battley of Counsel

SOLICITOR FOR THE APPLICANT:

R J Cutler Solicitor

COUNSEL FOR THE RESPONDENT:

Mr McGregor of Counsel

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms Kirkman-Scroope of Counsel

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Emerson Family Law

Orders

The mother have sole parental responsibility for the child … born … November, 1995.

The said child live with the mother.

IT IS ORDERED UNTIL FURTHER ORDER THAT
Save as might otherwise be agreed in writing between all of the parties:

The parties and the Independent Children’s Lawyer shall forthwith confer with a view to reaching agreement as to an appropriately qualified psychiatrist, psychologist or social worker, who is prepared to:
3.1commence a process with the parties and the child designed to facilitate the reintroduction of the child to his father; and
3.2facilitate time between the child and his father and paternal grandmother for a period of not less than six months (or such earlier time as that person might determine is consistent with the child’s best interests); and
3.3discuss with the Independent Children’s Lawyer and report to the Court on that process and its ramifications for, and effect on, the child and the parties; and
3.4commence such process within 28 days of the date of these Orders.

In the absence of agreement emanating from the conference contemplated by Order 3:
4.1the parties and the Independent Children’s Lawyer shall, within seven days of the date of these Orders, provide to each other a list of three persons who fulfil each of the requirements provided for in Order 3; and
4.2the person contemplated by Order 3 shall be the person nominated in writing by the Independent Children’s Lawyer from the names so provided.

The mother and the father shall each do all such things and sign all such documents as might be necessary so as to, as soon as reasonably practicable, pay to the trust account of the Independent Children’s Lawyer the sum currently held in trust for both parties in the sum of between $1000 and $2000 and shall contemporaneously therewith, authorise the payment by the said lawyer of the fees, or part of the fees, properly charged by the person contemplated in Orders 3 and 4.

The balance of any fees payable to the person contemplated in Orders 3 and 4 shall be met as and when they fall due by the father.

Unless otherwise advised in writing to the Independent Children’s Lawyer by the person contemplated in Orders 3 and 4, the paternal grandmother:
7.1 shall be present at the first four such sessions conducted by that person; and
7.2shall spend time with the said child contemporaneously with the father during such process;
7.3shall spend such additional time with the child, if any, as the person contemplated by Orders 3 and 4 might recommend.

In the event that the process contemplated by the previous provisions of these Orders does not take place within 28 days of the date of these Orders:
8.1The father shall spend time with the child at a contact centre nominated by the Independent Children’s Lawyer in consultation with the mother;
8.2 The paternal grandmother shall spend time with the child at that contact centre;
8.3Upon nomination of that contact centre by the Independent Children’s Lawyer, the parties shall each do all such things and sign all such documents and the father shall pay all such sums as shall be necessary so as to have the father spend time with the child at that contact centre as soon as can be arranged thereafter;
8.4the father shall spend time with the child at that contact centre, and supervised by it, each third weekend for not more than two hours;
8.5the paternal grandmother shall spend time with the child at that contact centre and supervised by it contemporaneously with the father;
8.6In the event that the father does not avail himself of time with the child on any such occasion, the paternal grandmother shall spend time with the child on each such occasion.

Neither the father nor the paternal grandmother shall spend unsupervised time with the child save by written agreement between the other parties or further order of the Court.

The parties shall each do all such things and sign all such documents as are necessary so as to authorise and permit the person contemplated by Orders 3 and 4 and/or the director, supervisors or other relevant personnel at the contact centre contemplated by Order 8 to:
10.1Discuss with the Independent Children’s Lawyer any such matters; and/or
10.2 Disclose to the Independent Children’s Lawyer any such documents; and/or
10.3 Prepare any such report;
in respect of any and all such matters as they consider relevant to the welfare of the child.
The Independent Children’s Lawyer is at liberty to re-list this matter before Murphy J on the giving of seven days notice to all parties.

The Independent Children’s Lawyer shall provide a copy of these Orders and the Reasons for Judgment to:
12.1    The person contemplated by Orders 3 and 4;
12.2    If applicable, the contact centre contemplated by Order 8;
12.3    The principal of the school attended by the child;
12.4    The Director of the Legal Aid Office Queensland
12.5And in addition the Independent Children's Lawyer shall provide a copy of the Reports of Dr W, Mr Z and Dr M to each of the persons specified in Orders 12.1, 12.2 and 12.4.

The parties are at liberty to provide a copy of these Orders and the Reasons for Judgment to any therapist, counsellor or other health professional consulted by them and, in the case of the father, he shall provide a copy of same to his parole officer.

The father shall do all such things and sign all such documents as might be necessary to authorise and request his parole officer, or any health professional or other person or agency to whom he is referred by his parole officer, to provide to the Independent Children’s Lawyer any reports by the parole officer, or health professional to whom the father is referred and the results of any urine tests or other drug or alcohol screening conducted at the request of his parole officer.

IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Save with the written consent of the mother or as otherwise provided for in these Orders, the father shall not:
15.1Communicate with (including, but not limited to, by telephone), or spend time with the child;
15.2    Knowingly attend the child’s school;
15.3    Knowingly attend any health care providers for the child;
15.4    Knowingly attend any extra-curricular activities of the child;
15.5Attempt, either himself or through any agent or other person, to locate the residential address of the child;
15.6Attempt, either himself or through any agent or other person, to contact the mother whether by telephone or otherwise.

In the event that it is necessary for the father to contact the mother for any proper reason relating to the welfare of the child, he shall do so via the paternal grandmother.

Within 7 days of the mother receiving:
17.1any school report or other document relevant to the child’s educational progress; and/or
17.2any assessment of, letter, or report relating to the emotional or psychological well-being or development of the child; and/or
17.3any medical report, letter or assessment from a health care provider or allied professional relevant to the health of the child
the mother is to forward a copy of same to the Independent Children’s Lawyer who shall delete any reference, or information relating to, the residential address of the mother and thereafter forward same to the father.
In the event that neither agreement is reached nor the matter is relisted by the Independent Children's Lawyer as contemplated by Order 11, this matter be listed for directions, if possible before Justice Murphy approximately 12 months from the date of these Orders.

Time be extended so as to allow any Notice of Appeal to be filed 28 days from the date of the settled Reasons for Judgment.

IT IS FURTHER ORDERED THAT

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS

A.These Orders are made in circumstances where expert evidence before the Court indicates that the best interests of the child suggest the process contemplated by Orders 3 and 4. Absent agreement between the parties emanating from that process, it is anticipated that a further report or reports will be received by the Independent Children’s Lawyer after that process has been in place for not less than six months.
B.Given the facts of this case and the process contemplated in these Orders, the Court respectfully requests the Legal Aid Office, Queensland giving favourable consideration to further applications for legal assistance in this matter.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Murphy delivered this day will for all publication and reporting purposes be referred to as Grier & Henderson.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 7657 of 1999

MRS GRIER

Applicant Paternal Grandmother

MR GRIER

Applicant Father

And

MS HENDERSON

Respondent Mother

Ex Tempore

REASONS FOR JUDGMENT

I make orders in accordance with the sealed orders, a copy of which I will now distribute.
I should first record that when this matter came before me in the judicial duty list in October last year I determined to hear it expeditiously and undertook to deliver judgment by today before I went on leave. So as to abide by that, I deliver these reasons ex tempore.
I indicated at the end of the trial that I would make an order enlarging the time within which any notice of appeal may be filed. I will order same to a date 28 days after the date of my settled reasons. I hope to be in a position to have those settled reasons to the parties, early in the week of my return from leave, which is the week commencing 28 January 2008.
As I also indicated, at the conclusion of the trial, when I settle those reasons, I will put some subheadings and the like into them to make them easier to read.
Although, ultimately, many of the orders are, in effect, made by agreement, if not strictly consent, it is important, in my view, that I refer to a number of matters that arose during the course of the trial in some detail.
My reasons are as follows.

Parenting Issues for Determination

Late in the trial of this action, Dr W, a psychiatrist who had prepared two reports on behalf of the Independent Children's Lawyer (“ICL”), gave oral evidence. The doctor suggested that in the circumstances of this case if the child, the subject of these proceedings, was to be reintroduced to, and spend supervised time with, his father, then one method of doing so was within the context of a process conducted by a psychiatrist or other appropriately qualified professional. To use Dr W’s words, such a process was, "better than anything else by a country mile."
For reasons which will be expanded upon in a moment, the mother started this trial opposed to both the father and the paternal grandmother spending any form of time with the child. However, by the end of the trial, commendably if I may respectfully say so, she was able to agree to a number of orders proposed in a minute handed up by Dr Sayers, counsel for the father.
In particular, the mother was agreeable to the process contemplated by Dr W although the crucial issue of payment for that process remains for me to determine.
For his part, the father was agreeable to orders being made for parental responsibility to vest in the mother and for the child to live with her but sought that those orders be made by way of interim order. The mother opposed that and it is necessary for me to determine that issue also.
The parties were also in agreement about a number of other matters. They agreed to the sharing of information from schools, health professionals, and the like. The father proposed an order, agreed to by the mother, that, save as ordered, he have no contact with the mother or child nor seek any contact with the mother or child, or seek to obtain information about their residential whereabouts.
In respect of the process contemplated by Dr W, with which each party was, in principle, agreeable, it was also agreed that in the event that process should take place a report relating to it, including the reactions of the mother and child, views expressed by the child and the like, could be obtained and that the ICL be at liberty to re-list the matter. In the event that did not earlier occur, the parties were in agreement that the matter be adjourned for a year for further mention and directions.
Obviously enough, agreement to a future plan in the child's best interests would be a preferable outcome during that time. Such an agreement would, of course, almost certainly bring an end to the Court process just described.
In that sense then, orders embodying the process contemplated by Dr W were to be seen as interim orders or orders "until further order".
An obvious and immediate question, though, is what should happen in the event that the process failed or did not take place. About that issue there remains a dispute for my determination.
The father argues that, in that event, I should make orders that supervised contact occur at a contact centre prior to the matter returning to Court. The mother argues that this is "experimenting" with the child's best interests and, should the contemplated process not occur, the father should not spend time at a contact centre without further order of the Court.
Having broadly outlined the issues for my determination, it is first necessary for me to briefly outline the background to this dispute.

Background

The son, born in November 1995, now aged slightly over 12, is the only child of the parties.
They refer to him as "[J]" and it is how they referred to him during the trial.
The child is the sixth child of the mother, although one child died. She had her first child when she was aged approximately 15. The father is the fifth man by whom she has borne children.
Dr W says in his first report, dated 19 October 2005, that:
"Her [the mother's] older son, [S], was eight and her daughter was five when she left them with [her then partner]. She had access for a couple of months but found this too difficult so she cut off all contact with the children and travelled around the countryside working as a cook.
[The mother] had another close relationship several years later and fell pregnant with […]. [The mother] felt that she was not stable enough to care for this child so she gave her up for adoption. Several years later she married an old friend, […]. They had a son, [D], in 1984, but when he was three and a half years old, [the mother] became sick of her husband's trips [with work] so she left both of them. She has had very little contact with [D] since then ..."
The father and mother met in 1991. The parties used illicit drugs. In the mother's case, primarily marihuana and amphetamines; in the father's case, apparently, amphetamines and opiates, including heroin.
In about 1992, the father was gaoled. The parties then went to Melbourne. Shortly after the father went to gaol again until about 1995. The child J was conceived, apparently, when the father was on weekend release from gaol.
Exhibit M3, reveals that the father has had a large number of appearances before the criminal and traffic Courts in Queensland and New South Wales between 1976 and 1999. Prior to 2000 he had received sentences of imprisonment approximately 12 times.
On 3 October 2000, the child was taken into the care of the Department of Child Safety, as it is now called, as a result of the father alleging the child suffering a needle-stick injury at the hands of the mother or a friend of hers.
On 9 October 2000, a violent incident occurred between the father and mother. The mother moved to a domestic violence shelter and the child was returned to her care. Resulting from that incident, the father was charged with multiple violent crimes and sexual offences.
There was a committal hearing and subsequently two criminal trials. The mother gave evidence and was cross-examined at each of the committal hearing and the two trials. Subsequent to his conviction the father appealed to the Court of Appeal and subsequently made application for leave to appeal to the High Court of Australia. I gather that each of those appeals were unsuccessful.
The father was sentenced to 10 years imprisonment for these offences in March 2003. He served that sentence until paroled in Brisbane.
In 2003, the mother in these proceedings moved with the child to northern Qld.
The father apparently continues to maintain his innocence of the offences. He swears in his affidavit to his innocence in respect of all of the offences. However, in oral evidence, I understood him to contend that there was a physical assault on the mother but that he denied the contents of any of the sexual offences including the attempted rape. It is clear that his mother, the paternal grandmother, implacably believes in his innocence. His mother, who lives in regional NSW, visited him as regularly as she could.
In 2005, the mother filed an application for criminal compensation. The father defended this, and the mother swears in her affidavit to a three day hearing in respect of that application at which she was, again, cross-examined.
In March 2007 the mother was awarded criminal compensation in an amount of $65,250 but it seems she has not yet received this money.
The mother's affidavit evidence reveals that, since the year 2000 she has lived with the child in residences situated throughout Qld, Brisbane and now the Gold Coast region. She moved to the latter shortly prior to the trial.
That same affidavit reveals that since the child started school in 2001, he has attended seven primary schools including three in the same town in northern Qld.

Evidence as to the Parties Psychological Health

Dr W, whose evidence I accept, and whose diagnosis and description of the mother's psychological issues was not challenged, describes the mother, at page 10 of his most recent report as follows:
"[The mother] suffers from post traumatic stress disorder [PTSD] after her assault by [the father]. She currently suffers from a major depressive disorder, polysubstance abuse dependence disorder [including marihuana and prescribed benzodiazepines] and borderline personality disorder with anti social traits. She has never received adequate treatment for her problems. She has a lengthy history of unstable interpersonal relationships and abandoned her first four children. She consumed intravenous illicit drugs before, during, and after pregnancy with [J]. She has exposed her son to a number of domestically violent relationships, including at least two in the last few years. Just as [J] is starting to improve academically, behaviourally, and socially, she has moved him to a new environment much closer to the man who allegedly frightens her."

The doctor's most recent mental state examination also contained in that report, reveals as follows:
"[The mother] presented as a [woman] who looked older than her stated age. She made reasonable eye contact and rapport. Her speech was non spontaneous and the rate and volume of her speech was decreased. Her mood was depressed and her affect was flat and restricted. There was no poverty of content of her thinking and this content was not delusional. There was no formal thought disorder and she denied any perceptional abnormalities. Cognitively, she appeared in the average range and her insight and judgment appeared to be affected by her part in the ongoing dispute."
The father was released from prison on parole in August 2007. He is subject to parole conditions.
He was, immediately before his most recent incarceration, an illicit drug user. He has prior convictions in respect of same. He says he is now drug free and was drug free in gaol.
His parole conditions, which are contained in exhibit RG1 to his affidavit of evidence-in-chief, include conditions requiring him to both undergo such drug and alcohol counselling as he might be directed and also that he submit to urinanalysis as required. A positive result for illicit substances results in a breach of parole subjecting the father to the possible penalty of a return to prison for the remainder of his sentence.
The parole conditions also require him to "attend the sexual offending maintenance program in the community" as directed. He was cross-examined about this.
He swore that, because he maintained his innocence of the sexual offences in gaol, he was not considered for acceptance into sexual offender programs within the gaol and consequently his parole officer has not directed him to undertake any course as referred to in the parole conditions. I accept this evidence.
The father has not spent time with, seen, or communicated directly with his son for over seven years.
Dr W’s most recent report, to which I have already referred, describes the mental state examination of the father as follows:
"[The father] presented as a [man] who appeared older than his stated age. […] It was occasionally difficult to understand him. He was teary at times when relating his history but his speech was spontaneous, of normal rate and volume. His mood was dysthymic but his affect was reactive. There was no oblivious[sic] delusional content present in his interview, and there was no formal thought disorder. He denied any perceptual abnormalities. His cognitions appeared to be of the average range. His insight and judgment were questionable."
Dr W’s conclusion in that same report assessed the father as follows:
"[The father] has a past history of polysubstance abuse/dependence disorder and an anti social personality disorder. He continues to espouse his innocence over the charges that led to his most recent incarceration. He has spent a significant proportion of his adult life in gaol for varying crimes."
Dr W went on to express an opinion specifically with respect to supervised contact, as the doctor called it, between the father and the child. The doctor said:
"I do not believe that having supervised contact with his father will have a harmful affect on [the child]. He has been appropriately diagnosed and treated and his conditions have improved considerably. He has very little recollection of his father and most of what he thinks about him has come from external sources. It would beneficial for him to have the chance of meeting his father and making up his own mind about him. The only possible negative consequence is a possible deterioration in his mother's mental health and functioning due to her PTSD induced anxiety about [the father]."
It seems to me that that paragraph of Dr W’s report, in essence, summarises the dispute for determination by this Court.
Dr W had received, only on the morning of trial, psychiatric notes from the father's time in gaol. The relevant passages of those notes became exhibit M4 in the proceedings.
Of relevance was an apparent diagnosis by a psychiatrist contained within those notes, first appearing on 20 February 2001. The notes record, "the onset of delusions" and, ultimately, a diagnosis of paranoid schizophrenia with a differential diagnosis of delusional disorder was made. The notes go on to record that the father was "still delusional" a short time later.
It seems the father was then admitted as an inpatient at the Mental Hospital. Further notes refer to the recurrence of ideas assessed as “delusional” expressed by him.
Ultimately, those notes record in their final entry on 17 January 2003:
"Also reports a number of occasions [10+] of falling asleep about 30 minutes after eating meals prepared by wife (i.e., believes food drugged).
No obvious sign of psychosis.
While implausible, tale is internally consistent and at least possible.
Declines [the symbol for medication].
Prob. [agreed as meaning probably] to Court next month, some apprehension."
Dr W was cross-examined about the father's psychological health in the light of that further material.
He said that delusional disorder was a diagnosis that would cross a psychiatrist's mind given what is recorded in the notes. He noted, however, that the father was at that time incarcerated on remand and was protesting his innocence. Dr W said that whatever the diagnosis the father blames the mother for his incarceration and has not recanted from that story.
I find that is likely to have a role in the father’s current psychological functioning.
Dr W said in oral evidence that he had a concern that the father would tell the chidl about his views of the mother including, I gathered, his [the father's] views about his innocence of the proven actions against the mother. In that respect, Dr W said:
"We don't want the father denigrating the mother to [the child]."
That was, the doctor emphasised, one of the reasons he was recommending supervised time with the father.
Ultimately, Dr W was of the opinion, having read and considered the psychiatric notes just referred to, that, from a psychiatric point of view, it was still reasonable for supervised time with the father to take place.

The Paternal Grandmother

The paternal grandmother is also an applicant for orders in these proceedings.
The paternal grandmother seeks orders, irrespective of any orders made with respect to the father spending time with the child, that she be the recipient of orders to that affect.
She was born in March 1925 and is, accordingly, almost 83.
She filed proceedings in this Court in about December 2003. Orders were subsequently made permitting her to have supervised contact with the child in northern Qld.
She has had four such visits.
A report from a Ms R, who was the supervisor on two of those visits (on 7 June 2006 and 23 May 2007) is Exhibit A to the affidavit of evidence-in-chief of the grandmother.
That report indicates in respect of each of those occasions respectively that:
"[The paternal grandmother] gave [the child] a hug. He certainly was not nervous around [the paternal grandmother]."
And:
"At no time during the two hourly visits did I notice that [the child] felt uncomfortable or jittery being with his grandmother."
That report also contains, though, these two statements:
"[The paternal grandmother] asked [the child] how he was doing at school, and his father also wanted to know what sports team he followed and what music he liked. [The child] spent time on the climbing equipment while grandmother watched …
[The paternal grandmother] asked [the child] if he was nervous or scared being with her and he said, 'No'. She said she would never harm him. [The paternal grandmother] did talk about [the child’s] father, said she probably would not be up again and that his father may come up…
[The paternal grandmother] had a camera. I took a couple of [the child] and grandmother to see how he had grown. When it was mentioned about his father's birthday, he [meaning the child] picked out a card and wrote in it. Was not told what to write, showed grandmother what he had written…"
Extracts from two orders made respectively on 20 October 2005 by Dittman R, and on 27 January 2006 by McGrath R, in favour of the grandmother, are Exhibit F1 in these proceedings. Relevantly, they provide, respectively:
(3) The applicant not discuss the Court proceedings or issues pertaining to the father with the child and if the child raises any issues regarding the father the applicant shall deal with those in liaison with the contact centre.
(4) The applicant not discuss the Court proceedings or issues pertaining to the father.
It is argued by Mr McGregor, counsel for the mother, that the statements recorded by Ms R indicate a breach of those orders by the grandmother. Dr Sayers cross-examined her and she said she had in mind the arguably less expansive restriction contained in the earlier order.
This evidence, together with what is written on the card and the photo, which are Exhibit RG2 to the affidavit of evidence-in-chief of the father, are pointed to by Mr McGregor (although not necessarily in these terms) as being evidence that the grandmother, in effect, cannot be trusted; that she is so aligned with the father that she will, in effect, do his bidding.
Whilst the statements of the grandmother, insofar as they relate to the child’s father, might be a breach of the later order, I am not so convinced, with respect, to the former order.
In any event, I am not prepared to use that evidence as a pointer to any risk associated with the grandmother herself having contact with the child. It seems to me the statements are explicable (and possibly excusable) as an elderly woman, thinking she was doing nothing wrong, and simply reacting to the situation she was presented with, having had very little contact with her grandson and having flown to northern Queensland at her expense to see him for two hours.
Any reasonable concerns about the grandmother having contact with the child emanate, in my view, from a situation where she is with the father and is, by reason of her age and relative frailty, unable to effectively control what the father does or says.
Having said that, she was certainly strident in her evidence that she would protect the child and would not countenance any denigration of the mother by the father and would not, herself, do so. She said words to the effect, "That we all only have one mother." I accept her evidence in that respect as an honest and sincere expression of her attitude.

Potential Harm to the Mother’s Parenting

As has already been observed when earlier quoting a conclusion by Dr W the mother suffers from a number of psychological problems. They include post traumatic stress disorder [PTSD].
The possible harm to the mother and her parenting, and her attitude to contact are significant issues in these proceedings. Their importance when the father has not seen the child for over seven years and the circumstances in which that has occurred is obvious.
It is argued by Mr McGregor on the mother’s behalf that, not only exposure to the father, but also the prospect of the father having contact with the child, is likely to be a stimulus, or involve various stimuli, operating upon her PTSD (in particular) so as to adversely affect her psychological health and, as a result, her capacity to effectively parent the child.
In that respect, the mother deposes in her affidavit of evidence-in-chief at paragraph 13:
“I was very distressed when I was served with documents advising me that the grandmother was seeking to spend time with [the child]. I had thought that [the child] and I were safe in [northern Queensland] and were trying to get on with life and forget the trauma of the past years.”
She deposes further:
“When I was advised that [the father] had made application to spend time with [the child] although I was aware it would occur one day I felt very distressed and ill at the prospect that he may be granted orders that he spend time with [the child].”
In respect of the grandmother, the mother deposes in that affidavit:
“Now [the father] had been released from custody I believe that if an order is made that [the child] spend time with the grandmother supervised or unsupervised she would involve the father in those visits in anyway she could even if there was an Order that she be restrained from doing so.
I do not believe it is in [the child’s] best interest to spend time with the grandmother as I believe she will use every opportunity to denigrate me. I fear she will tell [the child] that his father is innocent and it is my fault that he has spent time in gaol. There is no benefit to [the child] in having a relationship with his grandmother.”
She also deposes:
“I am psychologically and emotionally exhausted by the continuing litigation and actions of [the father]. I believe it is in [the child’s] best interest that both he and I be left alone by [the father] and the grandmother.”
For the purposes of her criminal compensation claim the mother relied upon a report from Dr M, a consultant psychiatrist. Dr M provided two reports for that purpose.
The doctor provided an updated report for the trial before me and was briefly cross-examined.
Dr M’s most recent report concludes with this paragraph:
"My report is limited to comment on the mother's clinical condition and I am unable to make any assessment of her parenting or the effect upon the child of potential contact with his father or paternal grandmother. However, I can comment that it will adversely affect the post traumatic stress disorder from which [the mother] suffers."
That paragraph, in particular, was put to Dr W in cross-examination by Mr McGregor.
Dr W said that he had no doubt that contact between the father and the child would adversely affect the mother's psychological health. He said the question was how much and to what extent it would affect her psychological health. In fact, he went so far as to say he was "100 per cent sure" that time with the father would cause the mother psychological distress but said "how bad that is for her is hard to predict."
As Dr W in my view correctly pointed out, that consideration needed to be weighed against the benefit of the child having the opportunity to know his father. As, for example, the passage which I earlier quoted from Dr W’s report makes clear, the doctor was of the view that there was, in fact, such a benefit.
It needs to be made clear, I think, that Dr W was not suggesting benefit in unrestricted contact between the child and his father. He pointed out that he assessed the father as suffering from an anti-social personality disorder and that led to a concern about his willingness to obey Court orders. That was also a reason that Dr W suggested that any time be supervised.
Mr McGregor argues that this Court should not take a risk with the mother - the word he used was "decompensating" - if contact, even contact at a contact centre, was ordered.
In that respect, Dr W said, whilst acknowledging that the child spending time with his father was likely to be psychologically stressful for the mother, that contact at a contact centre was "likely to be far less so".
I should also mention in this context that Dr W was adamant that recourse by the mother to proper treatment for her conditions and specifically her PTSD was "likely to produce an 85-90 per cent chance of improvement".
It seems to be accepted by all parties that the mother was unwilling or, perhaps, unable, to engage in any such treatment. It is not entirely clear to me, though, that that was, in fact, her evidence.
She said in the witness box that she was "sick of it". She gave as an example, attending (what I took to be) a group therapy session, where she said words to the effect that she tired of listening to the stories that were told there. And, I gather somewhat deprecatingly, she said words to the effect, "Including women who had had a slap on the face" or something along those lines. I took her to mean that she was somewhat dismissive of attending a group therapy session for women who had been subject to what she regarded as relatively minor violence whereas, she had been the subject of very significant violence.
In that respect, Dr M was - I think it is fair to say - very pessimistic about the possibility of the mother adhering to treatment including a therapeutic process likely to be of benefit to her.
Having said all that, the mother gave evidence in the witness box, and in particular in respect of questions asked by me, about counselling she is currently receiving from a social worker. I gained the impression that the mother was receiving benefit from that counselling and was likely, at least as currently minded, to continue to pursue that counselling in the future. The mother seemed to me to indicate, clearly, that she considered that that counselling process was of real current benefit to her.
As I pointed out during the course of the trial and during the course of argument, the issue before me is not simply one of findings I might make about the mother's psychological health. The decision I need to make also encompasses a number of other findings of fact.
First, the mother reiterated in oral evidence a position consistent, in broad terms, with her affidavit material. She said words to the effect, "[the child] was my purpose in life and still is my purpose in life." She also said, "If I didn't have [the child] going through the last seven years I wouldn't have to sit here now."
In that context, I asked her in the witness box about her concerns. Specifically, I asked her whether her primary concern was that the child would not be returned to her if he was to see his father, that is, whether she was concerned that he would, in effect, be abducted by the father and/or the grandmother. She responded that that was indeed her primary concern.
Dr Sayers took that up with the mother in later cross-examination. The mother identified three fears if the child was to have contact with his father.
The first of those three fears was the one to which I have already referred.
The second was that the father and/or his mother would, as she put it, "get in [the child’s] ear". That is, she was concerned that the father and/or the grandmother would say things to the child which denigrated her and her mothering. As I understood her, that concern extended to them referring to a different and innocent picture of the nature and extent of violence perpetrated by the father on her, including, specifically, in respect of the offences for which he was imprisoned.
The third fear identified by the mother was - and these were not necessarily her words - that her anxiety would increase and she would find it harder to cope if the child was to see his father.
Just before lunch on the second day of the trial I took up with the mother a number of the issues that had been referred to by her and specifically took up with her the issue of the fears which she has in the event that the child sees his father.
It is important that I outline that evidence in some detail. From about 12.44 pm on the second day of the trial this evidence was given by the mother in respect of questions asked by me.
HIS HONOUR: Remember I asked you some questions before about your fears if time with [the child] with either his father or with his grandmother was to take place at a contact centre. Remember when I asked you about that?
WITNESS: Yes.
HIS HONOUR: Now, I want you to think about this question carefully and give me the best honest answer that you can. I know - I've read the material - I know you don't want there to be orders made that [the child] see his father or his grandmother?
WITNESS: Yes.
HIS HONOUR: But you know that one of the possibilities is that I will order that he does so?
WITNESS: Yes.
HIS HONOUR: Now, if I make that order, will you comply with it?
WITNESS: Yeah, I have to because I don't want [the father] or his mother continually chasing me with Court cases. I really don't. I'm fed up with them.
HIS HONOUR: Would my making that order be likely to affect you moving?
WITNESS: No, I'm staying where I am at the moment.
HIS HONOUR: So if I make an order that [the child] see his father or his grandmother that's not going to affect whether you move from where you are at the moment or change [the child’s] school?
WITNESS: No.
HIS HONOUR: Or change [the child’s] school?
WITNESS: No.
HIS HONOUR: If I made that sort of an order I assume, and tell me if I'm wrong, I assume that what you would tell me is that you don't want to have anything to do with, if you could possibly avoid it, [the father] or his mother.
WITNESS: No. I don't want to know them. They both make me sick.
HIS HONOUR: Pardon?
WITNESS: They both make me sick.
HIS HONOUR: If that's right, can you think of some way that there might be communication in the need that something happens, for example, [the child] at the contact centre and stubs his toe, I suppose the contact centre can contact you, but if there was to be contact away from the contact centre or, for example, if [the child] was due to go to the contact centre tomorrow and came down with a significant illness tonight, can you think of a way that you might be able to let the father or his mother know about that, apart from letting the contact centre know?
WITNESS: Wouldn't the contact centre be able to let them know, or is it up to me?
HIS HONOUR: Well, assume he can't let them know. They are closed or something, can you think of some other way that you could let the father or grandmother know about those sorts of things?
WITNESS: I could let [the grandmother] know because she has the phone on, but [the father], I don't know.
HIS HONOUR: Well, I think you have probably answered my next question, but in that sort of a situation, an emergency or something arises that is completely outside everyone's control and it's a fair dinkum emergency.
WITNESS: Yes. Yes, it is.
HIS HONOUR: Would you have any difficulty contacting [the child’s] grandmother saying, 'Look, it's an emergency, [the child’s] broken his foot and he's at the hospital and he can't come to contact.'
WITNESS: No, I'd just ring her house.
HIS HONOUR: Would you have any difficulty in her contacting you if the situation was reversed, assuming she didn't contact you at any other times?
WITNESS: Only if it was her contacting me and not [the father].
HIS HONOUR: Okay. So do I take it that assuming there was no contact, no contact apart from good reasons associated with [the child] and seeing [the child], you have no difficulty with [the grandmother] being the contact point in that respect?
WITNESS: No, I don't.

It seems to me apparent from the evidence I have just cited and, indeed, from the evidence of the mother generally in the witness box, that she does, in fact, draw a distinction between the grandmother and the father in terms of her ability to relate and her capacity to deal with any stress associated with contact.
I consider that the mother was giving honest and sincere evidence in answer to the questions that I had asked of her. Further in my view, the mother was considering carefully her answers and responded accordingly.
In this context (as well as in other contexts) Mr McGregor says that I should be very circumspect about placing weight on the mother's assessment of her own capacity and, in particular, her own capacity to deal with the stress of contact orders.
I think he is right in that assertion. However, it does not follow, in my judgment, that that results in a finding by me that the mother is not at all capable or is likely to “decompensate” in circumstances where, for example, the grandmother was having contact with the child or, indeed, was being used as a form of conduit for information and the like in circumstances where contact occurred at a contact centre.
I went on to ask the mother in the part of the proceedings to which I have just referred, further specific questions about the issue of her fears.
HIS HONOUR: I asked you some questions before about your fears with respect to [the father]. With respect to his grandmother, [Mrs Grier], are you fearful that she will abduct [the child]?
WITNESS: The thing is with [the grandmother] if she just gets contact and it ends up that she can have contact in [regional New South Wales] at her house and [the father] is not allowed to, she will allow [the father] to go to her house. Not matter anyway.
HIS HONOUR: I understand that is part of your case; you say that, if she was permitted to have contact but there was a restriction that [the father] couldn't, she would ignore that restriction and [the father] would end up seeing him?
WITNESS: Yeah, I'm pretty sure she would.
HIS HONOUR: Putting that aside for the moment and concentrating on the three fears that you isolated earlier, do you have a fear that she will abduct [the child]?
WITNESS: If she's coaxed enough, yes, probably.
HIS HONOUR: How do you see her doing that at age 82?
WITNESS: By getting into something with [the father].
HIS HONOUR: All right. And the second fear, which I think I was speaking specifically in respect of [the father] so I need to be clear, do you think that she, [the grandmother], would get in [the child’s] ear and say things about you, particularly, having heard what she said in the witness box yesterday about that?
WITNESS: I don't think she would do it intentionally. I don't. No, I don't think she would do it intentionally, maybe a slip of the tongue, but [the grandmother’s] pretty cluey, she's pretty cluey.
HIS HONOUR: Yesterday, remember you were in Court when she was being asked questions?
WITNESS: Yes.
HIS HONOUR: Remember she got quite strident about saying that she wouldn't contemplate [the child] being harmed in any way by anyone, including [the father], and she was quite strident about saying that she would never allow things to be said that would denigrate you because I think her words were, 'We all only have one mother.' Do you remember that?
WITNESS: Yes, I do.
HIS HONOUR: Do you believe her when you heard her say that?
WITNESS: Yeah.
HIS HONOUR: Do you think she would act protectively towards [the child]?
WITNESS: Yeah, I think she would.
HIS HONOUR: Do you think she loves him?
WITNESS: Yeah.
HIS HONOUR: Do you think he loves her?
WITNESS: Um, well, [the child] knows [the grandmother], not sure whether he loves her, but if they spend time together, you know, he realises - - -
HIS HONOUR: Do you think he'll come to love her?
WITNESS: Probably.
HIS HONOUR: Do you think that she, as his grandma, is an important person in his life?
WITNESS: Yeah, she probably is.
HIS HONOUR: Do you think it's important for [the child] to know that he's loved and cared for by his grandmother?
WITNESS: Yeah. Well, he knows he is loved and cared for by my father.
HIS HONOUR: Do you think that it's important to him that he knows he is loved and cared for by your father?
WITNESS: Very important to him.
HIS HONOUR: Do you think that it's important to him that he knows that he's loved and cared for by his other grandparent, his grandmother?
WITNESS: Um, yeah.
HIS HONOUR: Do you think it's important that he knows who his father is for good or bad?
WITNESS: Well, he can know who is father is but spending time with his father is another story.
HIS HONOUR: Well, at age 12 and a bit, do you think it's important that he arrives at his own conclusions about his father, both about the good bits and the bad bits?
WITNESS: Yes. Thank you. It's [the child’s] decision. The whole thing is [the child’s] decision. It's up to him what he wants to do. Whether it be now that he decides he really wants to get to know his father or whether it be six months, a year, or whatever, down the track, this is [the child’s] decision.
HIS HONOUR: You describe him a little earlier as being words to the effect of, 'the man of the house between him and me.'
WITNESS: Between him and me, yeah.
HIS HONOUR: Right. So do you think he might have a real sense, an overwhelming sense of loyalty to you and might be a bit worried about what you think if he said that he wanted to spend time with his dad?
WITNESS: Oh, he is worried about that anyway.
HIS HONOUR: What do you mean?
WITNESS: He's worried about that now.
HIS HONOUR: If that's right, do you think that might stand in the way of him saying, 'Mum, I'd really like to see dad a bit.'
WITNESS: No. Because I turn around to him and say, ‘[J], the decision's up to you. Don't worry about how I feel because you know I'm going to be hurt anyway.'
HIS HONOUR: Yeah, but there's a difference between the things we say and how we feel sometimes, isn't there?
WITNESS: No, but [the child] and I have talked about this. We've talked about it and he knows that I'm going to be upset anyway whether he makes a decision for yay or nay. But he knows that.
HIS HONOUR: Why would you be upset in either case?
WITNESS: Um, maybe I said it the wrong way. Yeah, I probably said it the wrong way.
HIS HONOUR: So he thinks you'll be upset? Well, this is what you think that he's thinking that you'll be upset if he goes to see his father?
WITNESS: [The child] has said to me, 'Mum, I don't want to upset you.'
HIS HONOUR: Yeah, that's the point I'm making. If that's how he feels and it seems understandable that he might feel that way given firstly the fact you've been his sole carer for seven years.
WITNESS: He is curious about his father. He has said that he is curious about his father.
HIS HONOUR: Yeah. I know, I think you told Dr [W], or at least one of the report writers - but just come back to what you said a few moments ago about him knowing that you'll be upset if he goes to see his father, okay? Do you think that might stand in the way of him saying, 'Well, mum, I want to go and see dad.'
WITNESS: No, no, I don't think it will.
HIS HONOUR: I mean now, not when he's 15 or 16, but now?
WITNESS: No. Now, now. No, that won't stand in the way.
HIS HONOUR: Okay. Now, before I ask Mr McGregor to re-examine, does anyone have any questions?

Relevant Principles

It is important to make clear that, although the issues requiring my determination are now somewhat more narrow than when the trial commenced, the determination of those issues is conducted cognizant of, and bound by, mandatory pathway and principles now enshrined in the Family Law Act 1975 (“the Act”).
The facts of this case highlight what, to my mind, at least, is the unusual way in which the first of the Act's primary considerations is expressed. The statutory mandate is to consider something which the paragraph asks the Court to presume. Consideration is, it seems to me, the antithesis of presumption.
The sub-paragraph does not ask the Court to give primary consideration to whether there is benefit from the expressed relationship. On the contrary, it asks the Court to consider a presumed benefit, yet, in many cases, and this is one, the existence or not of such a benefit is a matter for a finding by a Court if established by the evidence.
It may be true that in very many cases, perhaps, even the overwhelming majority of cases, there will, as a fact, be benefit in the undefined "meaningful relationship" between child and parent.
But, there are also cases and, again, in my view, this is one, where a Court needs to consider making orders for a relationship which stretches the meaning of the word "meaningful" and where the issue of benefit from whatever relationship is ordered is, or should be, a fact in issue.
Nevertheless, it is, a primary and, therefore, important consideration but one of the considerations among many that need to be taken into account by a Court. It is but a pointer, albeit a mandatory pointer, to the ultimate determinant of orders, namely, the child’s best interests, with such ultimate decision is a matter for this Court.
Other considerations referred to in the statute relevant to this case are, it seems to me, clear.
The second primary consideration is, clearly, relevant here in circumstances where violence and associated issues have marked the parenting history in this case and where the father has served a significant term of imprisonment for an act of violence including acts of sexual violence against the mother.
Furthermore, it is obvious, as it seems to me, that additional considerations are also directly relevant. They include the nature of the relationship between the child and his parents and the ability to facilitate a relationship with the other parent. The likely effect of change in the circumstances relating to the child is, I would have thought, an important consideration in this particular case, as is the capacity of each of the child's parents to provide for his care
Equally, clearly, the Act's mandatory considerations must be considered and interpreted in light of the statutory Objects and Principles.
In particular, the child has a statutory right to know and be cared for by both parents and a statutory right to spend time on a regular basis with and communicate with both his parents.
He also has a statutory right to spend time with others significant to his care, welfare, and development, a category into which, in my view, his grandmother clearly falls.
Again, however, those rights are subject to a determination of his best interests as made by me.
I turn then, to the specific issues for my determination.

Interim vs Final Orders?

First is the issue of whether the orders for the child to live with his mother and sole parental responsibility should be made by way of final order or interim orders.
Dr Sayers argues on behalf of the father that the evidence reveals the mother having a diminished capacity to parent. The father told Dr W that, ultimately, he seeks a “50 per cent” (i.e. an equal time) order with the mother. Dr Sayers argues that I would not make orders that the child live with his father and/or orders for sole parental responsibility in circumstances where an agreed process for the reintroduction of time between the child and his father is a process that is also likely to produce data for the Court in respect of issues such as his proper residential placement, and whether both parties should have equal shared parental responsibility.
Dr Sayers also argued that, to make final orders now, creates for the father an artificial barrier in the nature of a Rice v Asplund difficulty. I confess to failing to understand the substance of that argument.
The Mother argues, that, given the essentially uncontradicted evidence about who has been the child’s carer and the circumstances in which the father has been absent from the child’s life his proposal speaks ill of the father's insight in to what is in the child’s best interests.
Mr McGregor argues on behalf of the mother that, in effect, making an interim order in respect of those issues embodies everything that the mother fears. It also, he argues, is the very thing likely to precipitate an adverse psychological reaction by the mother, given her clear evidence about fears she possesses and her evidence about her primary fear.
Mr McGregor also argues that interim orders jeopardise the introduction of the very process which the father agrees with in order to reintroduce the child to him and which Dr W refers to as being so clearly appropriate in this case.
It seems to me that the child’s best interests demand that I make final orders in respect of residence and parental responsibility.
In my judgment, Mr McGregor's arguments are well made. Moreover, in my judgment, the child needs to know that he will continue to receive his primary care from the person who has provided it for the overwhelming bulk of his life.
As I said during the trial I consider the evidence reveals that the mother's parental capacity is significantly flawed. She has permitted the child to be exposed to significant violence by, at least, two men in the last few years. She has moved frequently and changed his school seven times in the last seven years. However, on the current state of the evidence, in my view the father could not seriously mount a case that the child live with him for half of the time or, indeed, for any substantial period.
Little more needs to be said in support of that proposition other than that he has not seen the child or had any contact whatsoever for seven years because he has been in gaol for serious violence perpetrated on the child’s mother.
I will make final orders that the child live with his mother.

Parental Responsibility

Because of the central place that sections 61B and section 61DA have in the Act, it is in my view necessary for me to record that the presumption provided for in the second those sections is rebutted in this case.
It is not argued by the father that it should not be. He argues only that it should not be on a final basis.
The matters already dealt with in these reasons allow a finding to readily be made that it would not be in the child’s best interests for parental responsibility to be shared equally.
In simple terms, there is no doubt, at all that the mother, having to see, interact, or speak with the father would be significantly detrimental to her mental health. About that, all experts: Dr W, Mr Z, and Dr M are agreed.
In my judgment, it is clearly in the child’s best interest that his mother should exercise parental responsibility solely and, in my judgment, it is clearly in his best interest that issue be determined with certainty now for the child.

Contact Centre?

The next issue is whether contact should occur at a contact centre in the event that the process to which both parties are agreed, involving a psychiatrist or other qualified professional, either does not take place, or very quickly fails.
Immediately, this issue has an air of artificiality about it.
The parties have agreed to a process which Dr W says is overwhelmingly in the child’s best interests. In my view he is clearly correct. The issue of who should pay for that process is at large before me. The father can, if, for example, I order that he pay for the process, but also order that he be permitted to exercise time with the child at a contact centre, intentionally, negligently, or otherwise, scutter the process, that he heard Dr W say is "the best by a country mile" by simply not paying.
The consent interim orders that I make will, by consent, be reviewed. When they are reviewed, the Court is statutorily bound to take account of, for example, the practical difficulty and expense of contact; the willingness and ability of the parties to facilitate a close relationship with the child; and, in particular, in the circumstances of this case, the attitude to the child and the responsibilities of parenthood exhibited by each parent.
The father says that, in effect, he will do whatever he can to commence and have a continuing relationship with the child. He says he is sincere in doing so and is not motivated by a desire to denigrate or harass the mother. This is, implicitly at least, why he has agreed to many of the orders that he has and which I will make.
That sincerity can be measured, at least in part, by the commitment he is able to bring to the process which Dr W says is head and shoulders above the rest as being best for the child. Of course, absent agreement, that is likely to be an issue before the Court in 12 months time.
The mother's primary arguments against contact occurring at a contact centre in the event that the envisaged consent process does not occur, can I think, be summarised as follows: (1) to do so is to pre judge the very issue (or perhaps, data) that the process is designed to ascertain, at least, in part; (2) it is an experiment (using Mr McGregor’s word). In effect, he argues, the Court would be saying, "We'll see how it goes and if it fails we'll stop it." He argues that to experiment in that way is antithetical to the child’s best interests; (3) it risks damaging the mother's mental health and, as a result, her primary parenting role in the child’s life, by risking the exacerbation of her existing psychological conditions and, in particular, PTSD.
I reject the contention that such an order is an experiment.
That submission assumes that it is not possible to make a finding that the benefits to the child in a limited relationship, which initially, at least, is limited to reintroducing him to his father in relatively short periods of time (that is the two hours contemplated by the orders) to a father he does not or barely knows within a safe environment and under supervision, outweighs any risk for the child in that occurring. In my judgment, I can make that finding on the evidence before me.
I reiterate the mother's evidence about her fears. Dr Sayers submits, correctly in my judgment, that the evidence of the mother's fears was clearly primarily directed to two risks which are both, for all practical purposes, eliminated by contact within a contact centre.
Mr McGregor argues that caution should attend, as I indicated earlier, what the mother says about her own capacities given her psychological fragility. As I indicated earlier, I agree. But, I reiterate, I do not agree that applying all such caution as I should properly do, leads to a conclusion that I cannot be tolerably satisfied that what she says about that and her consequent capacity to cope with supervised contact can be relied upon when weighing the benefit for the child of supervised contact against the risk of it.
Put in statutory terms, the child’s best interests do not preclude introduction in a safe, supervised environment of the child’s statutory rights to know his father. Moreover, the child has a statutory right to know his father, at least, in part for the reason that, as an adult, he will judge the good and bad in both his parents.
I am not persuaded that such contact within that environment would create for the mother such stress that her parenting capacity would be sufficiently impaired to be detrimental to the child’s day to day care. As Dr W said in oral evidence that issue needs to be seen in the context that the mother has, to use his words, "struggled with her parenting at the best of times."

Payment for the Agreed Process

I have earlier referred to the fact that the mother has received judgment for a relatively significant sum of money, but has not received the money as yet. Dr Sayers, on behalf of the father, suggested that some of this money might be used for the purpose of funding the process about which orders will be made and Dr W recommends.
Mr McGregor, on behalf of the mother, argues in respect of that money, firstly, that the money has not yet been received; secondly, that it would be significantly ironic if money paid to the mother by way of compensation for significant psychological injury perpetrated by the father would be used to fund a process by which time with the father was reintroduced after incarceration for those offences.

I agree. I find that it is not appropriate for that fund to be used for the purpose of funding the process to which I have referred.
Secondly, Mr McGregor argues on behalf of the mother that the father has made no contribution to the welfare of this child, including making any child support payments for over seven years, and during that time the mother has borne the brunt of caring for the child alone, including in circumstances where she has endured, at least, two violent relationships.
Thirdly, he points to the fact that the father is working full time. The father's affidavit of evidence-in-chief and, in particular, paragraph 6 of the affidavit refers to him working 60 to 70 hours a week.
I have, however, no evidence of his income. I note, though, that the father has made no contribution in a financial sense - at least, none revealed by the evidence - for over seven years during the time that the child has lived with his mother and, in particular, during the time within which the child has undertaken the whole of his primary school education.
Mr McGregor also argues that the father has been able to pursue the defence of the criminal charges with which he was confronted, including the pursuit of two trials, an appeal, and an application to the High Court. It seems to me I can take no account of that particular factor in circumstances where I have no evidence before me of either the cost incurred. Even if I could take judicial notice of the fact that the cost of funding same in a private capacity is likely to be very considerable, I have no evidence before me as to how that litigation was funded including whether the father received Legal Aid or public defence.
Dr Sayers argues on behalf of the father, firstly, that there is a trust fund which can and should be used for the purposes of the process. It seems that the trust fund comprises the accumulation of the nominal amounts paid to prisoners in this State.
I am told respectively that it has "about $1800" in it, or, on the father's account, somewhere between "$1000 and $2000". I have no difficulty in making an order that that trust sum be used at least to commence the funding of the process which my orders contemplate.
I will make orders that the parties do all things necessary to permit such funds to be paid to the trust account of the independent children's lawyer to be used for the purpose of funding that process - or commence the funding of that process.
As to the balance, Dr Sayers contends that 50 per cent of the fees associated with that process ought be met by the mother. He argues that because the therapy is, at least in part, to assuage concerns that the mother has in respect of harm to her psychological health, she should contribute to the funding of it.
I disagree. It seems to me that the arguments made by Mr McGregor are well founded. Although the decision in respect of who should fund the process is a financial decision, it seems to me that it ought nevertheless be governed by the best interest principles, and consequently, the considerations set forth in the Act.
Primary among those, in this context, is, it seems to me, the responsibilities exhibited towards parenting by each of the parties. The points argued by Mr McGregor in that respect about the mother bearing effectively the sole responsibility for the child for the last seven years are well made, and it seems to me that the father ought fund the process provided for in the orders over and above the initial use of the funds from the trust account to which I have referred.

Future Unsupervised Time with the Father

Two further issues remain for determination. First, as part of the minute of orders handed up by Dr Sayers, it is contended that unsupervised contact should take place at a future time.
Dr Sayers in support of such an order made a number of concessions which, with respect were properly made. I think it is fair to say that the matter was, quite rightly, faintly argued by Dr Sayers.
The reason for that will, undoubtedly, be apparent by reference to the matters earlier contained in these reasons including the three fears on the part of the mother that I have already referred to, and the likely significantly detrimental affect on her psychological health, the clear opinion of Dr W, and, I should add, the other experts.
Further the clear opinions of Dr W and Mr Z in respect of concerns about unsupervised contact to the father given the background to this matter and the psychological/psychiatric background of the father himself are very important in this context.
I decline to make the order sought by the father at paragraph 10 of the minute handed up by Dr Sayers.

Time with the Paternal Grandmother

In respect of the separate application by the paternal grandmother the rather lengthy passage of the evidence earlier quoted by me where the mother answered my questions immediately before lunch on the second day, seems to me to clearly indicate, together with the other evidence before me, that orders ought be made in favour of the grandmother for time with the child. However, it is one thing to say that the child has a statutory right to know his grandmother, and it is one thing for me to find that he will likely benefit from a continuation of his relationship with his grandmother, quite another thing to say that what necessarily follows from that is that she should have unsupervised time with her grandson.
The time that the grandmother should spend with the child needs to be considered within the matrix of facts and circumstances, including the mother's psychological health to which I have already made extensive reference.
It seems to me that what is in the child’s best interests is that he gets to know, as it were, his father's side of the family as one continuous process, and as a result, in my judgment (and, indeed, ultimately, all parties effectively agreed on this course of action) the grandmother's time with the child should be coterminous with the father's time with the child.
Having said that, in circumstances where, for whatever reason, whether it is a return to gaol for breach of parole, or whether it is because of an unwillingness or inability to exercise time on the part of the father, such circumstance ought not preclude the grandmother from having contact with the child alone.
It seems to me that, as the Act contemplates, she has a separate important relationship with the child to the potentially beneficial relationship that he has with his father, and I can see no reason why she ought not be able to see the child in the exercise of the child’s rights in that respect.
Accordingly, the orders will provide, as sought by the ICL, that, in circumstances where the father does not avail himself of time with the child, the grandmother nevertheless be permitted to spend with the child at the contact centre during those occasions that were otherwise scheduled for the child and the grandmother to have that contact.
For those reasons I make the orders earlier published by me.
I think what I might do is I can amend paragraph 12 by saying, after paragraph 12.4, “and in addition the independent children's lawyer shall provide a copy of the reports of Dr [W], Mr [Z], and Dr [M] to each of the persons specified in paragraphs 12.1, 12.2, and 12.4.” It is probably appropriate that the contact centre has those reports as well, Mr McGregor, it seems to me.
And you will see, for what it is worth, the last of the notations made by me and it seems to me if those reports are provided to the director, it might assist in the independent children's lawyer and, perhaps, others getting future aid.
Otherwise I anticipate significant difficulties in 12 months time. Thank you for sitting and listening to these Reasons. I thought it was better to deliver them in that way rather than delay and hand down a judgment in probably five or six weeks' time.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 1 February 2008

[2008] FamCA 35

11 January 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Natural Justice

Procedural Fairness

Remedies