HOLT & THOMSON

[2015] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLT & THOMSON [2015] FCCA 1331

Catchwords:
FAMILY LAW – Parenting – interim orders – very serious mutual allegation of drug use, criminality, family violence and mental health issues – whether there should be no contact or supervised contact – transfer to FCOA Sydney.

Legislation:

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

Amador & Amador [2009] FamCAFC 196
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS HOLT

Respondent: MR THOMSON

File Number: WOC 43 of 2015

Judgment of: Judge Altobelli

Hearing date: 22 April 2015

Date of Last Submission: 22 April 2015

Delivered at: Wollongong

Delivered on: 1 May 2015

REPRESENTATION

Solicitors for the Applicant: McNamara & Associates

Solicitors for the Respondent: D M Roberts & Co

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS

1. Pending further order, each party must:

   (a)Forthwith contact Catholic Care in (omitted) and (omitted) (“the Contact Centre/s”) and arrange an appointment with whichever Contact Centre’s services are first available to the parties for assessment for suitability for supervision of the time the child, X born (omitted) 2007 (“the Child”), spends with Mr Thomson;

   (b)attend the assessment;

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

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

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.

2. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 4 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

3. The Contact Centre may recommend the parties or either of them to participate in a program or programs.  Each party must comply with any such reasonable request.  In the event of a dispute arising about participation in a program, either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days notice.

4. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, Mr Thomson is to have contact with Child no less than once per fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

5. Ms Holt must deliver the Child to and collect the Child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

6. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 4, then, contact shall occur at the times that are offered by the Contact Centre.

7. The time the Child spends with Mr Thomson under order 4 is to be supervised by the Contact Centre and each of the parents must pay one half of any reasonable fees for the supervision on each occasion of supervision.

8. Mr Thomson must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.

9. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list. 

10. If during the currency of these orders the parties and the Child’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

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

12. Leave granted to the parties to file in chambers a Minute of Order regarding the appointment of an expert.

13. The matter be transferred to the Family Court of Australia and be listed before a Registrar on 14 September 2015 at 10:00am in the Sydney Registry.

NOTATIONS:

A.Consideration should be given to the inclusion of this case in the Magellan program given the serious allegations each parent makes.

B.The parties are actively considering appointing an expert.

C.These orders do not bind the Contact Centre (as it is not a party to this case) but requests it provide a service to assist the parties and their child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 43 of 2015

MS HOLT

Applicant

And

MR THOMSON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter came before me for Interim Hearing on 22 April 2015.  The case is about X, who was born (omitted) 2007.  X is eight years old.  He currently lives with his mother and spends no time with the father.  X’s mother is the Applicant.  She is 41 years old and lives in the (omitted) area of New South Wales and describes herself as undertaking home duties.  X’s father is the Respondent.  He’s 45 years old, lives in (omitted), a Sydney suburb, and describes himself as an (occupation omitted). 

2. The parents were in a relationship for about 10 years, and this ended on a final basis in December 2014.  The Mother proposes that X live with her and spend no time with the Father pending a final hearing.  In the alternative, however, she proposes that there be supervised time at a contact centre in (omitted).  The Father proposes that X live with him and spend time with the Mother as determined by the Court.  The Independent Children’s Lawyer representing X proposes that X live with his mother, that there be a Child Inclusive Conference, and that the parents undertake the intake for supervised contact at (omitted), but she did not propose that supervised contact actually commence, at least for the time being.  The issue for the Court, therefore, is where X should live, and if he lives with his mother, whether he spends any time with his father, and if he lives with his father, what time he spends with his mother. 

The Evidence

1. The evidence before the Court consisted of the following.  In the Mother’s case, there was the case outline and written submissions, her Application of 19 January, her Affidavit sworn 16 January and filed 19 January.  In the Father’s case, there was his case outline and written submissions, his Response of 21 April 2015, his Application in a Case 27 January 2015, the Father’s Affidavit of 23 January and 27 January 2015, and his Affidavit of 12 March 2015.  There are a number of supporting affidavits in the Father’s case:  Mr W, 23 January;  Mr C, 22 January;  Ms C, 26 January;  Ms S, 26 January;  Mr A, 19 February 2015. 

2. In addition, a considerable volume of documents that had been produced on subpoena came into evidence as exhibits, including documents produced by New South Wales Police, medical records produced by the (omitted) Medical Practice, school records produced by (omitted) Primary School, records produced by the Department of Corrective Services and a bundle of correspondence letters sent by the Mother to the Father, and finally a bundle of urine results. 

The Applicable Law

1. The applicable law is contained in Part VII of the Family Law Act 1975.  In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out in 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.

3. At the very core of Part VII of the Family Law Act 1975 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.

4. 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.

5. 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.

6. 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".

1. A little later in the judgment the High Court said:

   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.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   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.

3. The Full Court’s decision in Amador & Amador [2009] FamCAFC 196 also contains a number of relevant passages to this case, and I will incorporate into these, my reasons, paragraphs 79 to 81 inclusive of the Full Court’s decision.

   With respect to the appellant, we consider the submissions supporting this ground are misdirected. To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.

   In the subject case there is an underlying unstated submission by the appellant  that in relation to the alleged rapes by the father of the mother she had available to her the avenue to complain to the police and/or subject herself to medical examination. That clearly did not take place at the time of the alleged incidents.

   The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.

Background

1. The litigation history of the matter includes a first appearance before myself on 27 January when orders were made appointing the Independent Children’s Lawyer and orders were made pursuant to section 69ZW for the production of documents.  Then the matter came back before me on 18 February.  On this occasion, orders were made for both parents to provide drug testing.  On 23 February, I made orders restraining the parents from discussing these proceedings or denigrating each other, made orders about urine testing at the Independent Children’s Lawyer’s request and for intake to be completed at a Catholic Care supervised contact centre.  The matter was originally listed for interim hearing before Her Honour Judge Henderson on 17 March.  It is not clear why the matter could not proceed on that date, but, in any event, it was adjourned to 22 April, when the matter was dealt with before me. 

Discussion

1. The Mother’s case, very succinctly stated, is that there is no meaningful relationship between X and his father, that the relationship between the Mother and Father was characterised by very high levels of family violence, that the Mother was, in fact, X’s primary carer and ultimately that there would be a risk of harm in the Father’s care such to even preclude supervised contact, though to be fair in the Mother’s case she concedes that in the alternative supervised contact should be ordered. 

2. The Father’s case, again, very briefly stated, is that not only is there a meaningful relationship between X and himself, but that he was, in fact, the primary carer.  His case involves trenchant denials of family violence or of any risk of harm issues so far as X is concerned.  Indeed, he asserts in his case that if there’s risk of harm, it’s in the Mother’s household due to drug and alcohol and mental health issues. 

3. The Independent Children’s Lawyer’s case was that the Court should proceed with care and slowly, that this was a case where expert evidence was needed, and the Independent Children’s Lawyer articulated a concern about the possible re-traumatisation of X if any time were to be introduced between X and his father. 

4. Let me discuss the evidence in the context of the issues before the Court and with the background of the relevant statutory provisions.  Even by (omitted) standards, the allegations that each parent makes about the other and their respective backgrounds make this a very difficult case.  The Court must be very conscious not to be drawn into contentious issues of fact that are impossible to resolve without a thorough testing of the evidence.  What is apparent from studying all of the documents before the Court, including voluminous documents that have been tendered in evidence, is that there is criminality in the backgrounds of both the Mother and the Father.

5. The Father was incarcerated for a period as a result of criminal activities that the Mother seems to have been well aware of and to which X seems to have been exposed.  Despite this, the Mother not only maintained the relationship with the Father whilst he was in jail, but clearly continued it on his release in June 2014. 

6. The Father claims that he has been successfully rehabilitated from his past criminal activities.  This is a claim that is largely untested.  There is room to be reasonably confident that he is drug-free because of the drug testing that has been undertaken during the course of these proceedings and also because of his parole conditions.  The Mother herself has had a highly problematic background that involves drug addiction.  The inference is clearly there to be drawn that X was, again, exposed to this. 

7. The Mother claims that the Father was, and, indeed, she claims continues to be, involved in the (omitted) Motorcycle Gang.  It is, in fact, common ground that he was in the past.  He says that that is no longer the case.  The Mother was certainly aware of this during their relationship.  The inference again to be drawn is that X was either directly or indirectly exposed to this lifestyle.  The Mother makes serious allegations about family violence perpetrated by the Father.  The impression formed – and I emphasise it is only an impression formed from the untested evidence – is that this might be the case.  The Father alleges that the Mother was herself violent.  Again, the impression formed from the untested evidence is that this, too, may well be the case. 

8. The overall impression created, albeit a first impression based on untested materials, is that this was a dysfunctional relationship and often a tumultuous one involving past criminality, drug and alcohol abuse and antisocial behaviour and that X was exposed to all of this by both of his parents.  There is every reason to be as concerned about the Mother’s past as there is to be concerned about the Father’s past.  One may well understand the Independent Children’s Lawyer’s submission that the Court should proceed cautiously, but does that justify a no-contact order? 

9. When the question is asked what is the risk of harm to X if he has supervised time with his father at a contact centre, it is hard on the materials before the Court to discern what that risk is. The risk was not clearly articulated in the Mother’s case. Even the Independent Children’s Lawyer’s submission that there is a risk of re-traumatisation is, with respect, simplistic. If X is traumatised – and there is no objective evidence of this – it was because of what both his parents did or allowed to happen. One cannot now blame the other and use their dysfunctional past lives as the basis of excluding his father from X’s life.

10. Now, of course, the Father proposes that X lives with him.  He asserts that he was often, if not very commonly, X’s primary carer due to the Mother’s drug addiction.  Now, the problem with this is that the Father could not possibly have been X’s primary carer in the two years that he was in jail.  As for the risk of harm in the Mother’s household, particularly from drug abuse, her drug tests have been negative and she seems at this stage to be well supported, let alone under the critical scrutiny of the Court during the course of these proceedings.  In those circumstances, the risk of harm is a manageable one, but it should be emphasised that this is a case where there is a risk of harm in both households. 

11. There is no basis on the evidence before the Court for bringing about the very dramatic change in X’s life that would be proposed by the Father.  However, because of the very difficult circumstances to which X has been exposed and because the allegations are untested, there is a need to be protective of him, and, at least in the first instance, there is more than adequate protection in this Court’s mind if supervised contact with his father were to take place. 

12. Subject to the evolving evidence in this case, subject to how the supervised contact progresses in the months to come and subject to the expert evidence that will, the Court hopes, become available, there is the prospect of this time changing.  Pending further order of the Court, the least of the worst options for X is supervised time at the (omitted) supervised contact centre or the (omitted) supervised contact centre, whichever is first available.  The Independent Children’s Lawyer assessed that this was a case that needed an expert report, and the Court wholeheartedly endorses that assessment. 

13. At this early stage of the litigation, there are many indicators of complexity. The allegations each make against the other are very serious, indeed. The Court has articulated concerns about both parents. Quite apart from the suitability of this case for transfer to the Family Court pursuant to the protocol, it probably also meets the criteria for inclusion in the Magellan program. This case should be transferred to the Family Court of Australia without delay. If the parents have not already done so, they must forthwith do all things necessary to complete the intake procedures for supervised contact at Catholic Care at either (omitted) or (omitted), whichever provides the earliest access to the service, and thereafter the Father should commence spending supervised time with X at least once per fortnight at times and dates as are stipulated by the service.

14. I transfer this matter to the Family Court of Australia in Sydney.  It is listed before a registrar on 14 September at 10 am.  I am going to note that consideration should be given to the inclusion of this case in the Magellan program, given the serious allegations that each parent makes against the other.  I am going to further note that the parties are actively considering appointing an expert, and leave be granted to file a minute of order appointing said expert in chambers.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  27 May 2015