Hudson & Stoke and Ors

[2008] FamCA 1034

FAMILY COURT OF AUSTRALIA

HUDSON & STOKE AND ORS [2008] FamCA 1034

FAMILY LAW – CHILDREN – Best interests – Interim orders

Family Law Act 1975 (Cth) s 60CC

Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Hudson

FIRST RESPONDENT:

SECOND RESPONDENT:

THIRD RESPONDENT:

Mrs Stoke

Mr Stoke

Mr Llewelyn

FILE NUMBER: BRC 11691 of 2007

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 24 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Charltons Lawyers

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS: Mr Pearson, Pearson Law

SOLICITOR FOR THE THIRD RESPONDENT:	Ms Gagliardi, John Paul Mould Solicitors as town agents for Suthers Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Couper, G Couper Solicitor

Orders

IT IS ORDERED UNTIL FURTHER ORDER (AS PROPOSED BY THE APPLICANT, THE THIRD RESPONDENT AND THE INDEPENDENT CHILDREN’S LAWYER AND OPPOSED BY THE FIRST AND SECOND RESPONDENTS) IN RELATION TO THE CHILD … BORN ON … APRIL 2004

1. In the terms set out in annexure A.

AND IT IS FURTHER ORDERED

1. The parties use their best endeavours to ensure that the time the child spends with the applicant pursuant to the orders in annexure A at the H Contact Centre occur on Sundays and not on Saturdays, so as not to impede upon the Saturday outings the child has with the second respondent.

2. The original minute of orders signed by the parties be placed and kept on the Court file.

3. Pursuant to s 65L of the Family Law Act 1975 (Cth) Mr G, family consultant, give the parties such assistance as reasonably they may require in relation to compliance with and carrying out these orders.

4. Paragraph 5 of the orders made on 8 July 2008 placing this matter on the list of matters to be called over at 10am on Thursday 20 November 2008 for the allocation of trial dates in 2009 is vacated.

5. The matter be listed for a directions hearing before Registrar Turner at 9am on Friday 15 May 2009.

NOTATION:

The parties and the independent children’s lawyer specifically have requested that the directions hearing before the Registrar not be before 1 May 2009 to allow the interim orders in annexure A to operate for at least six months before further procedural steps be taken.

ANNEXURE A

1. The child spend supervised time with Mr Hudson at the H Contact Centre (Contact Centre) for a period of two (2) hours each fortnight on such day and at such time as is available at the Contact Centre.

2. The maternal grandparents and Mr Hudson contact the Contact Centre within seven (7) days of the date of this Order to arrange for the intake interview and attend as directed by the staff of the Contact Centre.

3. The maternal grandparents, by their solicitors, and Mr Hudson advise the Independent Child Lawyer, in writing, when the contact time is to commence.

4. Mr Hudson pay the costs of each party’s intake interview and pay the costs of each contact visit.

5. Each party and the Independent Child Lawyer has liberty to re-list the matter on the giving of forty-eight (48) hours notice.

6. Mr Llewelyn, the child’s biological father, will not spend time with the child on the day and at the time the child is to spend time with Mr Hudson at the Contact Centre.  Mr Hudson is to advise the father, in writing, of the regular time and day he is to spend with the child at the Contact Centre.  Such notice in writing, is to be given seven (7) days before he commences his regular visits at the Contact Centre.  In the event of a change to the regular day and time, Mr Hudson is to give the father written notice forthwith.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11691 of 2007

MR HUDSON

Applicant

And

MRS STOKE
First Respondent

And

MR STOKE
Second Respondent

And

MR LLEWELYN
Third Respondent

REASONS FOR JUDGMENT

Background

1. The applicant, Mr Hudson, seeks an interim order that he spend time with the child, born in April 2004, now 4½ years.  Mr Hudson is the former partner of the child's mother, Ms Llewelyn, who tragically died in August 2007 as the result of injuries in a motor vehicle accident on 7 August 2007. 

2. The mother's parents, Mr and Mrs Stoke, who are the child’s maternal grandparents, say that between 23 July 2007 and August 2007, the date of the mother’s death, the mother and the child lived with them in northern Queensland.  They say that the mother and Mr Hudson were separated at that time, and indeed their relationship had been an "on and off" relationship for its duration, it being common ground that it had commenced when the child was about four weeks old. 

3. The maternal grandparents oppose Mr Hudson’s application.

4. The child's father, Mr Llewelyn, spends time with the child each two or three weeks, as agreed with the maternal grandparents pursuant to par 2a of an order made by Federal Magistrate Spelleken on 30 November 2007 which provides that the child spend time with her father “at all reasonable times as agreed between the parties", the parties to those proceedings in the Federal Magistrates Court being Mr Hudson and the maternal grandparents.

5. The father does not oppose that the child spend time with Mr Hudson, provided that it does not impede upon the time the child spends with him.  The father said, in his affidavit filed on 2 October 2008:

   3.I do not have a difficulty with [Mr Hudson] having time with [the child] if it is in her best interests.  I do not want that time, however, to impede on my time [with] [the child].

   4.I would consent to any order that provides for [Mr Hudson] to have time with [the child] at least once every three (3) weeks to be supervised by a suitable person.  I would be comfortable with such a person being either:-

   (a) a member of the Salvation Army at […] in [northern Queensland];

   (b) at the [H] Contact Centre; or

   (c) a supervisor who has spoken to the Independent Children's Lawyer and whom the Independent Children's Lawyer assesses as understanding the role of a supervisor.

6. On 8 July 2008, I ordered (annexure A to the order) that the father and Mr Hudson undergo random drug testing by urine analysis at such times and on such dates as requested by the independent children's lawyer and provide copies of the results of such drug tests to the independent children's lawyer within 7 days of the receipt of such results.

7. Mr Couper, the independent children's lawyer, has said today, which I accept, that to date he has not arranged random drug testing because, in his view, in effect, there is little point until and if there be any order of the Court for the child to spend time with Mr Hudson.

8. Annexure A to that order provided further that the father and Mr Hudson attend upon Dr C, psychiatrist, for psychiatric assessment.  Each has done that and Dr C subsequently has produced a separate report in relation to each of Mr Hudson and the father. 

9. Relevantly, today, I need refer only to the report concerning Mr Hudson.  Dr C records that Mr Hudson told him he drinks very little; that previously he was a heavier drinker as a teenager but this “settled as he got older”; that he smokes about 30 grams of tobacco every five days; that he last used marijuana when he was “essentially a teenager”; although he has used it “sporadically over the years” he has not used any in the last 3½ years; he has tried speed, ecstasy and mushrooms “in the distant past” but has never been an intravenous drug user; his legal history included having been gaoled for unpaid fines for two weeks in the Northern Territory and apprehension at the age of 12 for theft; and that there is one domestic violence order but no other history.  The domestic violence order I will return to further on.

10. On mental state examination, Dr C described that Mr Hudson was not distressed, at times “his anger” was evident, but he was otherwise composed.  He said no perceptual disturbances were described, but observed that in his view Mr Hudson had somewhat limited insight. Dr C’s assessment concluded that Mr Hudson, who is 30 years, “really does not have any evidence of an Axis 1 psychiatric disorder” and that he is “not in need of any psychiatric treatment at the current time”.  Dr C said however that Mr Hudson is "clearly somewhat angry over the current predicament” being a reference, plainly, to the Court proceedings, “having suffered what he regards as a double loss", being a reference, plainly, to his partner and the child. Dr C concluded that there is “certainly no indication on the current assessment that he would not be able to adequately parent a child.”

11. Dr C’s report in relation to Mr Hudson does not set out, at its commencement, the material provided by the independent children's lawyer to Dr C.  However Dr C’s separate report in relation to the father, bearing the same date, 19 August 2008, does set out the material which Mr Couper, the independent children's lawyer, provided to him. I note (in Dr C’s report concerning the father) that under the subheading "Maternal grandparents' documents", none of the maternal grandparents' material read and relied on today by Mr Pearson is listed, plainly enough for the reason that it did not exist at that time, all of it being filed on 8 October 2008, two months after Dr C’s report. 

12. Certainly there are other affidavits of the maternal grandparents and others listed in Dr C’s material, but they are not affidavits that have been read in this application and thus I do not know their contents.  It may be that if there has been duplicity in the material, Dr C may have been aware of some of the matters alleged by the maternal grandparents in their material read in this application. On the other hand, if the earlier affidavits to which Dr C was privy do not contain evidence of the matters alleged in the material read today, then Dr C would have had no way of knowing of those allegations. 

13. Briefly, therefore, it is necessary to mention that the material read by the maternal grandparents today includes three recently sworn affidavits the contents of which in all likelihood may not have been available to Dr C.

14. The first is an affidavit by Ms B.  In it Ms B alleges that at a softball match in 2005 when the mother and Mr Hudson were there and the child was in a stroller, beside herself and the mother, Mr Hudson shouted at the child in the stroller “stupid little fucking bitch", describing Mr Hudson’s manner of speaking to the child as "disgusting".

15. The second is an affidavit by Mr S. In it he recalled 6 August 2007, the day before the tragic car accident, alleging he had a “10 or so minutes” footpath conversation with the mother who told him that she had left Mr Hudson and was “back home”.   Mr S deposes that he inquired the reason to which the mother said “you'll go off", and then in response turned the child around and lifted up her dress so that Mr S could see what he described in his affidavit as "heavy bruising to her buttocks and lower back area". Mr S deposes that he and his wife, who was also present, were outraged by this and asked if Mr Hudson had been charged by the police, to which the mother said "I have left him and I will never go back"; with Mr S then inquiring whether her parents “know about this”, to which she nodded.  Mr S deposes saying to the mother "what are you going to do about it" and the mother replying "I'm not ever going back.  It's not the first time he's done it". Mr S then described again the bruising he observed on the child on this date, 6 August 2007, describing it as "dark black and blue bruising" such that he and his wife were alarmed by what they saw, stating also that if the mother had gone back to Mr Hudson he and his wife would have reported what they observed to the police.  Mr S described that the only other time he recalls seeing or hearing anything of relevance was at the mother's funeral.  He said that on that occasion he was standing behind Mr Hudson and two other men and he heard one of the men say to Mr Hudson "are you going to get the baby", a reference, they believed, to the child, to which Mr Hudson responded "yes", and one of the other men then had said "what about the old man" (which I am asked, in context, to take as a reference to the maternal grandfather), to which Mr Hudson responded by saying "fuck him I will put a bullet in him". Mr S said that this type of conversation continued right through to the cemetery, where he heard Mr Hudson’s mother shout down at the grave as the mother was being buried "you might be dead and buried, but we get what's ours".

    The third is an affidavit by B Stoke, the mother's brother. In it he deposed that during Mr Hudson’s and his sister's relationship he spent a lot of time with them.  He said that during visits to his sister’s and Mr Hudson’s home, he observed Mr Hudson smoking cannabis on many occasions and that from his discussions with him, he believes that Mr Hudson’s cannabis habit was one to the extent of “between $30 to $40 per day”, and deposed that he was aware that the child was in the house when Mr Hudson was using cannabis.

16. The family consultant in the matter, Mr G, had earlier provided a children and parents issues assessment, undated, under cover of a memorandum to Registrar Coutts, 5 June 2008. However, unfortunately, as at today's date, Mr G’s children and parents issues assessment has not been attached to an affidavit and thus has not been affirmed or sworn so as to be able to be admitted into evidence.  I have remarked on many occasions that it is one thing for the Family Law Act 1975 (Cth) to provide, which it does, in relation to reports prepared by family consultants engaged by the Court, that they are admissible in evidence. Admissibility is one thing, however, the method of placing evidence before courts has not changed for nearly a millennium, and that is by way of oath or affirmation, these days by affidavit or oral evidence. Mr Pearson thus took objection to my ability to refer to the content of Mr G’s children and parents issues assessment, which I ruled to be a proper objection. Thus I have been unable today to have regard to Mr G’s children and parents issues assessment, although he is the family consultant appointed in the matter by the Court. I hasten to say that this morning the Associate contacted Child Dispute Services and was told that Mr G, unfortunately, is not in the Registry today to have been able to swear or affirm the contents of his children and parents issues assessment. This is a regrettable circumstance, as no doubt the children and parents issues assessment contains valuable content as to interviews with the parties and valuable observations as to the child’s circumstances.

17. There has been, however, fortunately a family report prepared by Ms L dated 25 March 2008 annexed to her affidavit filed on 31 March 2008, to which extensive reference was made during argument.  Mr Pearson, who appears for the maternal grandparents, asked me to consider at the outset that Ms L’s report is of considerable age.  However, I note that it is seven months old tomorrow, and thus not so old as not to have currency, particularly having regard to the exigencies of child matters in this Court, and indeed the Federal Magistrates Court, such that it is not always possible to have a family report prepared for each new court event.

18. At the commencement of the hearing this morning, Mr Anderson of Counsel, for Mr Hudson; Mr Couper, the independent children's lawyer; and Ms Gagliardi, solicitor, town agent for the father’s solicitors, handed up a document containing proposed orders by which, collectively, they proposed that the child spend supervised time with Mr Hudson at the H Contact Centre for two hours each fortnight on a day and at a time available to the contact centre, with several other provisions which I presently need not mention, they largely being machinery and/or implementation provisions.  Throughout the morning, upon certain intimations from me, in particular at the morning tea break, Mr Anderson, Mr Couper and Ms Gagliardi made some alterations to the proposal and, as it stands now, is still proffered on the basis of two hours each fortnight at the H Contact Centre.  The matters the subject of intimation by me dealt with the payment of the costs of the contact centre, and also the necessity for the time which Mr Hudson spends with the child, if it is to be ordered, not to interfere with the father’s time, which is his requirement.

19. Mr Pearson, for the maternal grandparents, strongly opposed the orders collectively proposed by Mr Hudson, the father and the independent children’s lawyer.

The law

1. In interim child proceedings, as held in Goode v Goode (2006) FLC 93-286 at [81] and following, there is a necessity for me to follow the pathway set out in those paragraphs.

2. In that regard, I have identified already the competing proposals of the parties. 

3. As to the issues in dispute in this interim hearing, largely they relate to the question whether the child may be exposed to physical or psychological harm if the proposed supervised interim regime obtains. I will deal with that question when considering the section 60CC matters.

Observations

1. As to the identification of any agreed or uncontested relevant facts, I have dealt with that sufficiently by way of the background explanation of the matter. 

2. As to other relevant contested facts, I will deal with them, to the extent relevant, when considering the section 60CC matters.

3. This is not a matter in relation to which I need consider equal shared parental responsibility. 

4. Mr Anderson made comprehensive oral submissions, all of which were supported by both Mr Couper and Ms Gagliardi.  It is convenient, thus, to refer to Mr Anderson's submissions.  It should be borne in mind, however, that they were supported by Mr Couper and Ms Gagliardi.

Meaningful relationship/physical or psychological harm

1. Mr Anderson submitted that Ms L, in her report at pars 34, 39 and 40, in essence, observed that the child identifies with Mr Hudson as her "Daddy", in par 39 expressing the view that it was clear to her that the child is aware that the person she “knows” as her father, Mr Hudson, is “no longer in her life”.  This observation is based on the circumstance, which is common ground, that since the mother's death, the child has not seen Mr Hudson other than at the mother’s funeral and for the purpose of the interviews with Mr G on about 5 June 2008. 

2. It was put that those three paragraphs of Ms L’s report show that the child regards Mr Hudson as her psychological father, and that at least until the time of the mother's death, or, on the disputed evidence, any separation between the mother and Mr Hudson shortly prior to the mother's death, the child had a meaningful relationship with Mr Hudson, and thus, given opportunity, still would have, and further that there would be benefit to the child of the continuance (or resumption) of her relationship with Mr Hudson, implicit in Ms L’s recommendation, in the concluding part of her report, that the child spend time with Mr Hudson.

3. It is appropriate to move directly to the aspect of physical or psychological harm, before dealing with Mr Pearson's submissions in relation to the benefit, or lack of benefit, of the child having a meaningful relationship with Mr Hudson, for the reason that Mr Pearson submitted that these two factors, from the maternal grandparents’ perspective, are intimately interlocked.

4. In relation to physical or psychological harm, Mr Anderson submitted that the proposal for supervised time, two hours each fortnight, with liberty to re-list the matter on 48 hours notice, as proposed, is appropriate protection for the child, should there be the need, which he resisted, to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence, because at a contact centre, if there were to occur any untoward event, the contact centre can be relied on to cease the visits, adding that all visits and events at the contact centre would be reportable in any event.

1. Mr Anderson said that Mr Hudson offered to undergo drug testing before any contact commences.  However, during argument, I observed that there is already a system in place for the independent children's lawyer to obtain and monitor such drug testing as he considers appropriate.

2. Mr Anderson submitted that the circumstance, as observed by Ms L, of the child calling Mr Hudson "Daddy" has the effect that presently not only has the child tragically been deprived of her mother, but also of relationship with the person who, until 16 or so months ago, she regarded as her psychological father, and pointed to the circumstance further that there is no expert evidence that the child would suffer physical or psychological harm if the supervised time at a contact centre commences.

3. Against this, Mr Pearson submitted that there is no benefit at this point for the child having, or continuing, or resuming any relationship with Mr Hudson, and that this is interlinked with the aspect of the potential for physical, or more predominantly, psychological harm for the child who, according to the maternal grandmother's evidence, is just starting to recover from her mother's death and cope with it with their assistance and comfort. 

4. Mr Pearson pointed to evidence by the maternal grandmother that things were progressing well until the child’s visit with Mr G for the purpose of the children and parents issues assessment, and that after that event, having had contact with Mr Hudson, the child, visibly to all in the precincts of the interview area, wet herself outside the play room and that Mr G was aware of this.  The maternal grandmother’s evidence included that after 16 months of comforting the child since her mother's death (actually, 14½ months), her behaviour had been good and her bedwetting had ceased, however, as they are trying to plan for their future, this one event of seeing Mr Hudson caused the child to wet herself again. 

5. The maternal grandmother’s affidavit provides that “the problems” continued after they arrived home after this incident and that the child’s “behaviour and level of happiness deteriorated immediately”, such that it took about 6 weeks for her to return to her state before the visit.  The grandmother deposed that she believes that the child saw Mr Hudson “as a means of contacting her mother”, and “was devastated accordingly when her mother did not return home with us”.  The grandmother deposed that "[the child] is very young and does not grasp the concepts", and to her belief that it is not in her interests, as a very young child, to have contact at this stage with Mr Hudson, who is not her natural parent and, in the grandmother’s view, has not played any significant role in her life to date.

6. The grandmother’s affidavit concluded that in her view any contact arrangements would only benefit Mr Hudson, and would “tend to complicate the complex issues currently being dealt with” by the child.  She deposed that she and the grandfather have had 16 months of “nursing [the child] through anxiety, bedwetting and unsettled behaviour, while she continues to deal with the death of her mother” and to her belief that “contact” with Mr Hudson “will not benefit [the child]”.

7. Mr Pearson urged strongly that in these circumstances to order in terms of the proposal of even two hours each fortnight of supervised time spent between the child and Mr Hudson at a contact centre would be to “experiment” with the child, in particular because there is very little evidence, in his submission, as to any “real relationship” between the child and Mr Hudson.  Mr Pearson submitted also that the absence of drug testing to date has the effect that any contemplated time, even at a contact centre, should be negatived and not further considered until there has been drug testing.  In this regard, however, I would refer to Mr Couper's role as the independent children’s lawyer such that if, for example, I were to order supervised time at a contact centre, Mr Couper, according to what he has told me today, which I have said already I accept, no doubt would instigate a regime of random drug testing that he is authorised already to instigate.

Child’s views

1. The child is too young to express meaningful views.

Child’s relationships

1. The child’s relationship with her maternal grandparents and with her biological father are intact, and appear to be strong, although the child refers to her biological father by his first name rather than “Daddy”.

2. There is evidence that, at least as at March 2008, when Ms L interviewed the child, she referred to Mr Hudson as “Daddy”, Ms L observing that, as at March 2008, the child regarded Mr Hudson as “the person she knows as her father” (report, par 39) leading to Mr Anderson’s interpretation, thus, that Mr Hudson is the child’s “psychological father”.

3. I have referred already to conflict in the parties' evidence, by which the maternal grandparents say that the relationship between Mr Hudson and their daughter, the child’s mother, was “on and off” for its duration, whereas Mr Hudson disputes this and says they were still together at the time of her death.  The conflict of evidence in this regard is highlighted, I think, by Mr S’s evidence of his conversation with the mother the day before her accident.  However these are matters to be determined at a trial, to the extent relevant, and are not matters today in relation to which I need do more than observe their existence, nature and extent and consider whether any of them may be likely to have a positive or negative effect on the child's best interests in relation to the application under consideration.

Willingness and ability of the child’s parents to facilitate and encourage a close and meaningful relationship between the child and the other parent

1. This matter, sadly for the child, does not have relevance.

The likely effect of change in the child’s circumstances

1. This matter has been dealt with sufficiently, in relation to the continuance, or resumption, of the child’s relationship with Mr Hudson.

Practical difficulty and expense

1. There is no evidence as to practical difficulty in the child spending supervised time with Mr Hudson at the H Contact Centre, as proposed, although I note the considerable driving time and distance between where the grandparents live in northern Queensland and H and the high cost of fuel.

2. Mr Hudson, according to the proposal, will meet all costs payable to the contact centre. 

Capacity to parent

1. Dr C, as I have mentioned, concluded that there is “no indication on the current assessment that [Mr Hudson] would not be able to adequately parent a child”.

2. There was no specific differentiation, in Dr C’s evidence, as to Mr Hudson’s capacity to provide for the needs of the child, including emotional and intellectual needs.  In the context of the present application, it would seem that the child’s emotional needs, having regard to her age and circumstances, presently are of more significance than her intellectual needs.

The child’s maturity, sex, lifestyle and background

1. This matter has been dealt with sufficiently already.

Attitude to the child and to the responsibilities of parenthood

1. Mr Hudson’s application demonstrates that he is keen to have a continuing (or resumed) role in the child’s life, at his own expense (according to the proposal).

2. There is a concern, however, as to the matters in Ms B’s, Mr S’s and the mother’s brother’s affidavits, to which I have referred.

3. There is also the circumstance of the maternal grandparents’ belief (inferentially) that Mr Hudson, by his application, seeks to benefit only himself rather than the child.

Family violence

1. I have mentioned already the matters raised in Mr S’s affidavit, but would emphasise that these matters have not yet been tested at trial, and indeed as yet Mr Hudson has not responded to them, these being interim proceedings.  Mr Pearson submitted that Mr Hudson has not denied the evidence against him, including Mr S’s evidence.  However, as I observed during argument, these are interim proceedings with effect that whilst the nature of allegations properly may be taken into account, although untested, such matters ultimately are to be the subject of determination at the trial. 

2. The same obtains in relation to Ms B’s evidence, to which I have referred, and also to the subject matter of a protection order dated 13 February 2008 against Mr Hudson, the aggrieved being the paternal grandfather, with the maternal grandmother named as a relative of the aggrieved. See exhibit 1.  The events leading to the obtaining of that protection order no doubt will be canvassed at the trial. Mr Anderson said from the Bar table that the order was made without admission.  However, plainly, I can make no findings as to that aspect of the matter.

3. What is presently relevant, however, in relation to family violence, is that if there is to be time spent between the child and Mr Hudson, it is proposed only to be supervised and at a contact centre, which has two effects.  First, it would seem unlikely in those circumstances that the child would be placed in physical danger of any violence from Mr Hudson. Secondly, the use of a contact centre would seem to minimise the prospect of Mr Hudson and the maternal grandparents necessarily having face to face dealings with each other. Further, if that were necessary, or incidental, there is a statutory exception to the operation of a protection order in relation to the performance of parenting orders.

Order least likely to lead to further proceedings

1. On the present evidence, there is no order least likely to lead to further proceedings, that is, further interim proceedings.  The proceedings for final orders are yet to be determined.

Other matters

1. Mr Pearson raised in submission what might be classified as a Russell v Close argument.  However, as I observed during argument, presently there is no evidence to support such a submission.

2. Mr Pearson submitted that the issues of fact raised in the matter should be decided before considering whether there be any time spent between the child and Mr Hudson. However, my obligation is to consider the section 60CC matters and all other relevant matters, in considering what is in the child's best interests at this stage, and it is a feature of interim proceedings that they occur before the fact finding role of the final trial.

3. Mr Anderson submitted, in the context of the obverse of the question whether there is a need to protect the child from psychological harm by spending time with Mr Hudson, that on a true reading of Ms L’s report, in particular pars 34, 39 and 40, to which I have referred, and again as to which I make no findings of fact but note her observations and untested opinions, not only is there no risk of psychological harm to the child by the proposal, but rather potentially it may be damaging to the child not to spend time with Mr Hudson, provided it be in the protected environment of a contact centre, and supervised, and at this stage not more than two hours each fortnight, the child already having lost her mother.  He put that, at least on the interim basis, until all matters can be tested at a trial, the child’s best interests would be served by the child not forfeiting also the loss of her other “parental” relationship, being that with her “psychological” father.

Decision

1. I have considered very carefully the evidence, the submissions, the relevant s 60CC matters, which I have endeavoured to analyse, I hope fairly, and all of the other relevant statutory provisions, including the objects of Part VII of the Act and the principles underlying the objects.

2. In my view, on balance, the child's best interests would be served by accepting the proposal put by Mr Anderson, Mr Couper and Ms Gagliardi.  In particular, in my view it is important that the child, who is only 4½ years, not become estranged from Mr Hudson pending determination at the trial of the child’s best interests.  Further, I am satisfied on the balance of probabilities that any protection of her is likely to be afforded by the very careful terms of the proposal.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly.

Associate: 

Date: