GUTHRIE & WEBB
[2015] FCCA 1353
•4 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUTHRIE & WEBB | [2015] FCCA 1353 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether there should be no contact or supervised contact – two and a half year old child allegedly resisting time with her father pursuant to consent orders – no objective evidence of risk of harm to child. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DAA, 65DAA |
| Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MS GUTHRIE |
| Respondent: | MR WEBB |
| File Number: | WOC 341 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 23 April 2015 |
| Date of Last Submission: | 23 April 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 4 May 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Paladin Law |
| Solicitors for the Respondent: | Verekers Lawyers |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney |
ORDERS PENDING FURTHER ORDER
That the parties sign all documents within 7 days necessary to effect the intake assessment for Catholic Care (omitted);
That the child X born (omitted) 2012 spend time with the father for two hours each week supervised by Catholic Care at such times as nominated by Catholic Care.
Each parent is to comply with the following:
(a) Appointments made by Catholic Care for supervised time;
(b) Comply with all reasonable rules of Catholic Care;
(c)Comply with all reasonable requests for directions by the staff of the Catholic Care.
If after the assessment intake procedure, Catholic Care is unwilling or unable to provide supervision as set out herein, then each party has leave to restore the matter to the list within 7 days written notice to the Court and to the other party.
That Catholic Care may recommend the parties or either of them to participate in a program or programs and in that event, either party may re-list the matter for mention on 3 days notice.
If Catholic Care during the currency of these Orders declines or is unable to continue to provide its services, or the director of Catholic Care recommends in writing to the parties a variation of these Orders then either party may on 7 days written notice to either party and the Court restore the matter to the list.
The period of contact provided in these Orders may vary by reason of the closure of the Catholic Care services during school and public holiday periods and in such event, such contact shall occur at times when the service can be provided by the Catholic Care.
That the proceedings be stood over for a period of time to allow the supervised time to be conducted and Catholic Care provide a written report on the progress of the interaction between the father and the child and the proceedings be listed for further mention to monitor.
FURTHER ORDERS
The matter be adjourned to 14 September 2015 at 9:00am for Mention. If the report is available, the parents are to attend with their legal representatives.
The matter be listed for a 3 day Final hearing commencing 11 April 2015 at 10:00am in the Wollongong registry.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
IT IS NOTED that publication of this judgment under the pseudonym Guthrie & Webb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 341 of 2013
| MS GUTHRIE |
Applicant
And
| MR WEBB |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction and Background
This case is about X who was born on (omitted) 2012. She is about two and half years old. On 21 May last year X’s parents entered into consent orders that provided for X to live with her mother and spend time with her father. It is relevant to note that these consent orders were entered into after a hearing had commenced and evidence had been given, if I recall correctly, by both X’s father and mother.
I made the orders on that day having completely satisfied myself at that time, and having regard to all the evidence that I had heard, that these orders were in X’s best interests. Both parents need to appreciate this. I do not just rubber stamp consent orders put before me. I seriously consider whether what the parents propose is an order in the best interests of the child. When I made the orders on 21 May 2014 I considered those orders to be in the best interests of X based on all the evidence that was before the Court at the time. In any event problems have arisen with the implementation of those orders. On 12 December last year the Father filed a Contravention Application.
On 2 April this year the Mother filed an Application to suspend or stay the orders pending an expert’s report. The orders of 21 May last year provided that the Father’s time with X progress through a number of stages. Stage 1 was for the first four months and it provided for the Father to spend time with X two hours weekly as supervised by Care South at the Father’s expense. Stage 2 provided for unsupervised time each Saturday for two hours, and stage 3 would see this increased to six hours and so forth. The evidence before the Court in the present context suggests that the arrangements faltered after stage 1. The Father had his first visit with X on 12 June last year and his last visit on 9 October last year.
Dr R, an eminent child psychiatrist, has been appointed as the Part 15 Expert in this case. The interviews will occur on the 30 and 31 July, and it is hoped that her report will be available by late August. The Mother proposes that there be no time between X and her father before the report is available. Both the Independent Children’s Lawyer and the Father urge the Court to reinstate the time, but each proposed that pending the Expert’s Report the Father have supervised time at Catholic Care at (omitted).
The evidence before the Court was as follows. The Mother’s Application in a Case for suspension of time was supported by her Affidavit filed on 2 April. It is an extensive Affidavit which not only sets out the Mother’s evidence, but annexes charts of X’s sleeping patterns, copies of the consultation notes relating to X for the period 22 July 2014 to 27 February 2015 for her doctor, copies of relevant SMS communications, other communications, ADVO documents, and a report dated 31 March 2015 from a psychologist, Ms B, and a psychiatrist, Dr K. In addition, tendered in the Mother’s case is a report dated 13 February 2015 from X’s doctor, Dr D. The Court has studied all of these documents so very carefully.
The Father’s Response to the Application in a Case is supported by his Affidavits of 14 April 2015 and 9 December 2014. The latter Affidavit is, again, extensive, and relevantly annexes the Care South supervised contact reports spanning the period 12 June 2014 to 2 October 2014 as well as relevant communications between the parents. Once again the Court has studied all of these documents very carefully.
Only the Application in a Case and the Response is the subject of the present proceeding. The Contravention Application must be dealt with in due course.
Applicable Law
The applicable law is contained in Part VII of the Family Law Act 1975 (“the Act”). In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII of the Act and the way to proceed.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
Let me articulate what I understand the Mother’s case to be. The Mother’s case is that from the commencement of X’s time with her Father her behaviour changed. The changes included disrupted sleep patterns, tantrums, breath holding attacks leading sometimes to black outs, constipation, and developmental regression generally. The Mother conceded that often X separated from her at changeover without problems, but that her distress manifested itself after she returned to her mother’s care.
The Mother gives no evidence of communicating X’s distress to her father before 8 October 2014, that is, nearly four months after these behaviours originally manifested and, coincidentally, the day before she stopped contact, and about the same time that the contact was to progress on the next stage. Nonetheless, she did tell X’s doctor and the Care South staff. There is no question that the Mother attributes X’s distress to her time with her Father. Her view is based on how much better she says X is when there is no contact with her father. Her views are strengthened by the report of the psychologist, Ms B.
What is equally clear is that the Mother appears to have given no consideration to the possibility that X’s stress is caused by other factors, for example, the Mother’s own anxiety. This is a factor identified by Dr D, for example, in the consultation notes of 20 January 2015 and also the notes of 27 February 2015, which suggest X was stressed, but, of course, this was at a time that she hadn’t seen her father since early October so that could not possibly be the causative factor. What the notes reveal, that is, the notes of 22 February this year, is that the Mother went to Court that week. Again, a plausible alternative hypothesis is that a cause of X’s anxiety is her mother’s anxiety.
In submissions on behalf of the Mother much emphasis was placed on Ms B’s psychological assessment. There are obvious defects in this report even if it was well intended. It is based on a subjective account that was given by the Mother and Maternal Grandmother, and not the Father, but, perhaps, the most glaring defect is that Ms B was not given access to the many Care South reports that were available at the time.
Only very limited weight can be given to Ms B’s report. For example, weight can be placed on the observation suggesting that X is a normal, healthy girl, that there are no concerns for her development trajectories, that she is thriving with respect to her milestones, relationships and emotional growth, etc.
The psychiatric report of Dr K is significant in informing the Court about the Mother. The Mother has a history of past post-traumatic stress disorder related to childhood sexual and physical abuse, and then as she alleges sexual assault as an adult. This manifests itself in generalised anxiety and panic attacks. Clearly, the Mother is a vulnerable person who is prone to anxiety.
In terms of the Father’s case, the Father’s case is, in short, that his time with X has gone very well. He relies heavily on the supervised contact reports. Supervision by Care South was agreed to by the Mother. The Mother makes no complaint about their objectivity or professionalism. In many respects she cannot even cavil with the objective facts that are reported, that is, that X’s time with her father appears to have gone well. The Mother’s focus, of course, is on what happens when X returns to her care.
There are some significant matters to note about the Care South reports. For example, the Mother’s anxiety is noted in the first report of 12 June last year. Next, X separates from her mother in the vast majority of cases uneventfully. Next, the interactions between X and her father appear appropriate. Next, there are no records of X being distressed. In the second report of 19 June the Mother’s anxiety is again noted.
However, the Mother did report to the worker about X’s disrupted sleep patterns, not only on the second visit, but subsequently, also her clinginess. The reports note the Father’s preparation for his time with X, his patience, and his child focus which was described as being plainly evident. X’s relaxation around her father is noticed and seems to increase as he spends more and more time with her. On 7 August 2014 the notes record that the Mother raised for the first time that X’s time with her father was during nap time. It’s odd that that important piece of information did not emerge before then.
The report of 2 October 2014 is significant. It is X’s second last visit. The report records that the Mother was upset at meeting the Father in the waiting room:
The worker arrived at CareSouth office just before 1100 to find NF waiting at reception. NF explained that NM had just left the building with X. NF was concerned that he had upset NM and that this was not his intention. He said that he did not want to jeopardise the arrangements that they had concerning his contacts with X.
The worker left to find NM at the (employer omitted) building adjacent to CareSouth. The worker found NM to be very upset; she was visibly shaken and on the verge of tears. NM said that she had been waiting at reception when NF arrived. NF had said hello to X and then sat opposite her in silence in the reception area. NM said she found the experience intimidating to the point where she could not remain in his presence and therefore left the building.
NM’s mother, who had X, joined the worker and NM to hand X over. NM said X had been “out of sorts” and was perhaps teething. X has been given Nurofen. NM handed X over to the worker along with a bag containing her lunch and nappies. X went to the worker without issue but was very subdued.
This record needs to be contrasted with the Mother’s version of this event set out in her Affidavit:
On 2 October 2014 I came in at my usual time and the Applicant parked his car then reparked next to my grandmother’s car, which he would have recognised, and then followed me immediately into CareSouth. I was settling X on my lap. It was 10.45 am. The Applicant took note that no one else was in the room, walked up to me where I was sitting said “hello X” while looking at me and then sat three feet from me and proceeded to stare at me. I tried to find Ms J’s number in my phone but my hand was shaking and I was scared, X was clearly distressed and buried her head into my shoulder wrapping her arms around me whispering “Oh No, Oh No” His intimidation of me in front of X clearly distressed her at the time.
….
I believe she was unsettled because she had witnessed the Applicants intimidation of me and it continued to affect her so much she did not sleep properly for four days afterwards.
Now, according to the sleeping charts prepared by the Mother annexed to her Affidavit, X did not sleep at all from Thursday, 2 October to Sunday, 5 October.
It is important to pause here to observe a number of things about the incident in question. There is no objective evidence that X was distressed as the Mother asserts. The report from Care South does suggest that X was unsettled, but that did not appear to prevent her from having a good visit with her father. The Mother is very quick to deduce that X was unsettled because of what the Father had done. Indeed, she describes it as intimidation. The Mother does not pause to consider the possibility that her own reactions contributed to X’s distress. All problems were projected on to the Father. Nonetheless, it was most unwise of the Father to have allowed himself to be even in the same room as the Mother.
The last report is of 9 October 2014. The visit was quite uneventful. X is described by the worker to be happy, lively, talkative and playful, and confident in her father’s presence. That is the evidence before the Court.
Let me discuss the evidence in the context of the law as it has been stated. Unless there is a risk of harm to X she is entitled to have a meaningful relationship with her father. Where is the risk of harm in this case such that the father should not have any time with her at all? The mother’s case in this regard is succinctly summarised at paragraph 9 of her solicitor’s written submissions:
There is clear need to protect the Child from the risk or potential risk of psychological harm caused by spending time with the father pending the receipt of the independent Single Court Expert report, which is anticipated to be received in August 2015.
The problem with the submission is that there is no evidence to support it. The Mother’s own evidence is as consistent with Dr D’s hypothesis that the Mother’s anxiety is being projected on to X, as it is with the hypothesis that X’s distress is somehow related to the time she spends with her father. The Mother’s evidence is plainly inconsistent with the objective evidence in the Care South reports. Indeed, there might be many other reasons why X is, according to the Mother, showing signs of distress.
There are other possible explanations for the Mother’s actions, one of which might include her own possible reluctance to encourage X’s relationship with her father. She needs, with respect, to consider the possibility that this will be what the Father submits in due course. There is nothing in the evidence to suggest that X will not cope with the reintroduction of supervised time with her father as he and the Independent Children’s Lawyer propose. Indeed, the only established independent evidence of a track record of supervised time with her father is excellent, and if history repeats itself not only will X cope with spending time with her father in supervised care, but she will thrive.
Conclusion
The orders proposed by the Father are made and the Court expects prompt compliance. The Court is concerned about the Mother’s obvious anxieties. Dr K reports that she has been prescribed medication to manage hyper-arousal and nightmares. She was to be reviewed in March 2015. So, perhaps, the Independent Children’s Lawyer could subpoena Dr K’s records so that the Court may be appraised of this. If the Mother’s anxiety is not adequately managed by medication she may well need to consider non-medical therapeutic assistance. It is unlikely that this case will go away soon.
Absent risk to X she is entitled by law to have a relationship with her father. That risk has not been established to the satisfaction of this Court. Accordingly, the Court makes interim orders in accordance with the orders sought by the Father and set out in his case outline document. The Court wishes to make this very clear to both parents. Compliance with these orders is expected to the very, very letter. Given that Mr W and Mr Webb are not here I will arrange for these reasons for judgment to be taken out as quickly as possible.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 25 May 2015