KEATON & SHACKLEY

[2021] FCCA 105

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEATON & SHACKLEY [2021] FCCA 105

Catchwords:
FAMILY LAW – Parenting – child aged 6 – where the child’s older half sibling then aged 9 spent a week in hospital after consuming a hash brownie and being dosed with the father’s psychiatric medication while spending time with the father – where the father has been convicted of assaulting that child – where the father has spent time in jail for assaulting the mother and for manufacturing methamphetamine – where the child would be at unacceptable risk of harm if she spent unsupervised time with the father – where at trial the father sought an order that the child spend supervised time with him on three or four occasions each year for identity purposes and that he be able to send her letters, cards and gifts – where in the circumstances of this case both of these  proposals contain some inherent risks for the child and the mother and would be of no benefit to the child – child to live with the mother and spend no time and have no communication with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3)

Cases cited:

Mazorski & Albright (2008) 37 FamLR 518

Mertens & Mertens [2020] FCCA 207

Applicant: MS KEATON

Respondent: MR SHACKLEY

File Number: NCC 1717 of 2019

Judgment of: Judge Terry

Hearing date: 23 December 2020

Date of Last Submission: 23 December 2020

Delivered at: Newcastle

Delivered on: 20 January 2021

REPRESENTATION

Solicitors for the Applicant: Fielden & Associates – Family & Relationship Lawyers

Counsel for the Respondent: Mr Boyd

Solicitors for the Respondent: Joplin Lawyers

Counsel for the Independent Children’s Lawyer: Mr Bateman

Solicitors for the Independent Children’s Lawyer: NLS Law

ORDERS

1. All existing parenting orders concerning the child X born in 2014 (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. The child shall spend no time and have no communication with the father.

5. Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child, the father is restrained by injunction from:

   (a)Approaching the mother or the child.

   (b)From attending the residence of the mother, her workplace or any educational facility attended by the child.

   (c)From posting any negative or denigrating posts about the other on any social media platform.

   (d)From publishing anything about these court proceedings on any social media platform.

6. The mother is authorised by these orders to apply for or renew a Commonwealth of Australia passport for the child and the consent of the father is not required for such application or renewal.

7. The mother is authorised by these orders to remove the child from the Commonwealth of Australia for the purpose of taking her on an overseas holiday and the consent of the father is not required for such travel.

8. For all purposes the child X born in 2014 shall be known henceforth as X Keaton-Shackley.

9. The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X born in 2014 to X Keaton-Shackley.

10. The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 12 above is to do all acts and things to register the change of name of X born in 2014 to X Keaton-Shackley pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW.

11. All outstanding applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1717 of 2019

MS KEATON

Applicant

And

MR SHACKLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These proceedings, X, who is six and a half.

3. There are final orders in place for X to live with the mother and for the mother to have sole parental responsibility for her. The father was originally seeking to spend regular unsupervised time with X, but at trial he did not seek any unsupervised time or even frequent supervised time.

4. The things the father sought at trial were that he be able to spend professionally supervised time with X for three hours on three or four occasions each year, that he be able to send her letters, cards and gifts on her birthday and at Christmas, and that the mother send him a photo of the child on the 15^th of each month.

5. During the trial even that was watered down somewhat.

6. During cross-examination the father’s counsel indicated that if the Court was concerned about making an indefinite order for supervised time, it could order that the supervised time occur for two or three years and then cease.

7. During closing submissions, he said the father would be happy with photographs three or four times a year rather than once a month, while also noting that perhaps the father could take his own photos at the supervised visits.

8. The mother opposed all of the things the father sought. She proposed that the child spend no time with and have no communication with the father.

9. The family report writer recommended no time, and at the end of the hearing Counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer supported that outcome.

The evidence

1. The father relied on his affidavits filed on 7 July and 20 November 2020. The earlier affidavit was in regard to the availability of two private supervision services who were prepared to do identity contact.

2. The mother relied on her affidavit filed on 30 October 2020.

3. A family report was prepared by Dr B, a Family Consultant, and a tender bundle was prepared and received by the Court.

4. All of the witnesses were cross-examined.

Background

1. The mother and father had a relationship from about 2012 until November 2014, and they have one child, X, who was born in 2014.

2. The father joined the C outlaw motorcycle group soon after the relationship began, and during the relationship he was involved with drugs. The mother said that he was using ice.

3. The relationship ended following a serious assault on the mother by the father in November 2014, when X was still under six months old. The father punched the mother several times to the face and she sustained two black eyes and bruising and swelling.

4. The father’s former partner Ms D, who is the mother of his daughter E born in 2009, arrived at the house soon after the assault and when she saw the mother she called the police. When the police attended they observed signs within the house that the father was manufacturing drugs, including items on the sink and near children’s toys. They searched the property and found a drug lab in the backyard.

5. The father was arrested and charged with assault occasioning actual bodily harm, manufacturing drugs, and a number of other offences. He was ultimately sentenced to four years’ imprisonment with a non-parole period of two years, and he was in jail from the time of his arrest in November 2014 until November 2016.

6. An Apprehended Domestic Violence Order was made for the mother’s protection for two years from 8 July 2015 when the father was convicted.

7. The father said that he and the mother rekindled their relationship for a period of time when he was in jail, but that was not the subject of any cross-examination and nothing turns on it for the proceedings currently before me.

8. After the father was released from jail in November 2016 he was keen to see X, who was by then about two and a half. He may have seen her on two or three occasions while he was in jail but if he did it was very briefly.

9. In July 2017 the parties agreed on a parenting plan and some supervised time and communication commenced, and toward the end of 2017, the mother began agreeing to some unsupervised time. X was by then about three.

10. At some point after he was released from jail the father resumed his relationship with Ms D and they subsequently had another child, F, who was born in 2018.

11. Although the mother agreed to X spending time with the father, often with E present, there were times when she drew back from that.

12. She described an incident that happened at G Shopping Centre during 2017 where the father became very agitated and told the mother that there was an “$80,000 hit out on him” and “he had a gun in his pants”. Following that, the mother limited his time again.

13. Records produced on subpoena show that earlier in 2017 the father was taken to the H Hospital after being found in someone’s backyard rambling and paranoid, and his behaviour at G Shopping Centre suggests a degree of paranoia and mental health issues at that time.

14. After the incident at G Shopping Centre the mother was a bit hesitant about agreeing to time for a while, but in due course she agreed to the father spending more extended time with X. In 2018 X began spending time with him from Friday to Saturday while E was present and in July 2018 this was extended to be from Friday to Sunday. X also had telephone communication with her father.

15. Sometime in 2018 there was a break in the time and communication because the mother was concerned the father was using drugs but in December 2018 she began letting him have telephone calls with the child again and at the beginning of 2019 she began allowing him to spend regular unsupervised time with the child again.

16. In April 2019 there was an extremely serious incident involving E.

17. E went to the father’s home on Friday 12 April 2019 with the intention that she would remain with him until Monday 15 April 2019. 

18. On Sunday night the father rang Ms D to say she had not provided enough night-time medication for E, who suffers from ADHD and needs assistance to sleep.

19. The father told Ms D, according to what Ms D later told the police, that he would give E some of his Seroquel to help her sleep. Ms D said he should not do that and that she would come and pick E up, but the father told her no, and E remained in his care.

20. Just before 8.00am the following morning the father rang Ms D and told her that E had eaten some hash brownies that were in his freezer. He said that she had not slept during the night and had got into mischief and started burning things in his house and he had smacked her bottom.

21. The father told Ms D that E was asleep and suggested that they let her sleep and that she pick E up later that day. Luckily for E, Ms D was not happy with that and she went straight around to get her. When she arrived she found E asleep on a mattress on the lounge room floor. She was barely able to wake her and she took her straight to J Hospital.

22. When the child was examined at the hospital she was found to have significant bruising and red marks on her bottom. She slept for the remainder of the day. The hospital was of the view that she might have had some other substance besides the hash brownies. She was tested and found to have Mirtazapine in her system, a drug consistent with a medication the father was taking for his mental health issues.

23. E was extremely ill and remained in hospital for a week.

24. After the hospital discovered the bruising and red marks on E’s bottom they called the police who went to the father’s house. He was arrested and charged with assault occasioning actual bodily harm.

25. Following that, the Child Abuse Squad went to the mother’s home to interview X, but no harm was found to have come to X from anything the father had done.

26. As soon as the mother found out about what had happened to E, which she did through Ms D and later because she was visited by the Child Abuse Squad, she declined to allow the father to spend any further time with X, and on 11 June 2019 she filed an application seeking parenting orders.

27. On 22 July 2019 orders were made for the mother to have sole parental responsibility and for X to live with her. No order was made about X spending time with the father.

28. A family report was ordered and in due course it was prepared and released. The report writer considered the various options which might be available and recommended that X spend no time with the father.

29. The father did not accept that and the matter was listed for trial, and the orders the parties sought at trial were as I have outlined above.

The father’s case

1. The father’s case was that X had a well-established bond with him as a result of the time that he had spent with her over the years. The mother agreed in cross-examination that X missed the father after time ceased in April 2019.

2. The father acknowledged that the Court would find that X was at unacceptable risk of harm in his unsupervised care, and he did not seek unsupervised time. However he said that there would be a benefit to X in knowing that he loved her and cared about her, and therefore there would be a benefit to her in being able to see him on up to four occasions each year and being able to receive gifts and cards from him. That way she would be able to maintain her paternal identity, and if that did not happen she was not likely to maintain that at all.

3. During the hearing the father acknowledged that making an order for supervised time which could continue for 12 years until X turned 18 might not very attractive to the Court, and his Counsel indicated the father would be willing to agree to a sunset clause so that the time ended in perhaps two or three years. He said at first that an order could be made that it ended in two or three years unless the parents otherwise agreed, but he resiled from that in recognition of the fact that there was a very strong flavour in this case that it would not be in X’s best interests to leave anything to the parents reaching an agreement.

The mother’s case

1. The mother’s solicitor submitted that it was very clear from the father’s trial affidavit that he accepted no responsibility for what had happened to E. He blamed E for seeking out the hash cookies he had forgotten about, which he said were at the very back of the freezer. He blamed Ms D for not providing enough of the child’s medication and he blamed the other adults in the matter for him smacking the child. He said that there had been an agreement that parents were allowed to smack children three times.

2. His affidavit was also full of criticisms of the mother, notwithstanding his agreement that the child should live with her and that she should have sole parental responsibility.

3. The mother’s solicitor submitted there was no prospect of the father ever being able to spend unsupervised time with the child and that there would be no benefit to the child in spending limited supervised time with him if that could never move on to being anything different.

4. The mother’s solicitor said that the mother was fearful of the father as a result of the assault in 2014, that she suffered from anxiety and depression, and that she was fearful that attempts might be made by the paternal grandmother, by the father through the paternal grandmother, or by other paternal family members, to coerce her into agreeing to extra time once time started at a contact centre.

5. The mother was also worried that not only might attempts be made to coerce her to agreeing to extra time, if X was seeing the father regularly pressure might be put on her through X to agree to the father spending unsupervised time with the child.

6. The mother’s solicitor submitted that there would be no benefit to X in seeing the father four times a year. She had not seen him for nearly two years. She would have to be reintroduced to him. Every visit would be stressful for the mother and the child, and if there was no benefit to the child, the order should not be made.

7. The mother’s solicitor also submitted that the child could be assured that the father had not abandoned her, and loved her, by having the orders explained to her by a family consultant.

X’s best interests

1. Even though the issues in dispute are fairly narrow, any orders I make about X must be orders determined by treating her best interests as the paramount consideration, and to determine her best interests I must have regard to the matters in ss.60CC(2) and (3) of the Family Law Act 1975, (Cth).

Primary considerations

1. The primary considerations are in s.60CC(2) and they are the benefit to the child of having a meaningful relationship with both of her parents, and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

2. There are two obvious things to say about the primary considerations.

3. One is that it is not possible for me to make an order which will lead to X having a meaningful relationship with her father. If she sees him as the father proposes, it will not lead to a meaningful relationship, which is a relationship which is significant, important, and valuable to the child.[1] A person a child sees for a few hours on four occasions each year is not going to be a person who is significant valuable and important to the child.

   [1] Mazorski & Albright (2007) 37FamLR 518

4. The second primary consideration is the need to protect the child from harm, and there is no prospect, as the mother’s counsel and the Independent Children’s Lawyer submitted, of the father ever being able to spend unsupervised time with X unless there is a very radical change in the father, and there is no sign of that happening.

5. The family report writer identified a number of concerns about the father. One was his mental health. He has had hospital admissions as a result of suffering from paranoia and drug-induced psychosis. The mother mentioned the paranoid behaviour at a shopping centre. The father has recently seen a psychologist on a few occasions, but there was no evidence that his mental health issues were currently under control and nothing to give the Court confidence that he would never have such episodes again.

6. Another was his history of drug use. He has used ice, an extremely deleterious drug. The mother told the Department of Family & Community Services when she was interviewed following the serious assault on her in 2014, that there had been another assault during the relationship, and that the assaults had arisen out of the father using ice, and I have no reason to disbelieve her evidence.

7. There is no evidence the father has recently used ice, but he has also used a number of other drugs over the years including amphetamines, MDMA, Cannabis, Oxycodone and Sub Oxone.

8. The father has been drug-tested during these proceedings. He has only tested positive for OxyContin, but there is evidence that the father had taken OxyContin that was not prescribed for him. He said it was because he was in pain, but we only have his word for that. I also seem to recollect that the father is on the methadone program.

9. The father has served a lengthy prison sentence for manufacturing drugs.

10. There is no evidence that the risk of the father using drugs or being involved in a lifestyle in which drugs are used, is behind him. There is a significant risk that the father could use drugs again in the future or mix with people who do, and that issue, like the issue of the father’s mental health, means that he poses a risk of harm to children if they spend unsupervised time with him.

11. The Departmental records and/or police records indicate that when the father was arrested in 2014 and the police discovered evidence of the drug manufacturing at the house, X, who was a baby, was in the house. E, who would have been about five, was in the habit of visiting the home, and police found drug paraphernalia near toys in the living room and what they considered to be a cup which contained methamphetamine on the sink.

12. More recently the father had the hash cookies in his freezer which E was able to access.

1. The father appears to have no concept of the need to keep drugs away from children, and that is another reason why he poses a significant risk of harm to children.

2. The father also poses a significant risk of harm to children and adults as a result of his violent behaviour. He has a conviction for seriously assaulting the mother and a conviction for assault occasioning actual bodily harm on E. He agreed with the police that he struck E too hard because he got angry, and she suffered bruises and welts.

3. Another concern about the father, and it comes under the heading of neglect, arises out of what the police observed at the house when they went around to arrest him in 2019. They reported that E had been sleeping on a filthy mattress.

4. For all these reasons the father poses a significant risk of harm to children, and to X in particular.

5. The family report writer said this, and it is well-founded in the evidence available to me:

   The family consultant has identified the further issues of concern; the father’s capacity for change given his long-term drug use and criminal behaviour, which is heightened by his lack of production of a hair follicle test within the timeframe ordered by the Court; and a recent conviction for direct physical harm to his daughter, E, which the father accepts superficial responsibility for and denies propensity for future harmful behaviour.[2]

   [2] Family Report prepared by Dr B dated 8 May 2020 – see paragraph 76

6. There is no sign of the father changing or of a time arriving when children would be safe in his unsupervised care and I could not make an order for unsupervised time.

7. Supervised time of the kind the father proposes will not result in the father having a meaningful relationship with X, but the father said that there would be a benefit to her in having some sort of relationship with him, and I will have to make findings about the additional considerations and then make a decision about what I should do.

Additional considerations

1. There are a number of additional considerations in s. 60CC (3). Some of them are not relevant. There is no evidence that X has a view about spending time with the father. It was not a question that the family report writer felt the child should be asked, and I accept her professional opinion about that.

Section 60CC (3) (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)

1. X has spent time with the father in the past, but she has not seen him since April 2019, which is nearly two years ago.

2. The mother said that X was significantly distressed when she saw E shortly after she was released from the hospital. E was still looking very ill and the mother said that the knowledge that something had happened to her sister was extremely distressing to X.

3. X has no relationship with the father at the moment. The mother said that she missed him. That may be true, but whether they had a quality relationship prior to that, given the father’s propensity to neglect and put children at risk of harm, I cannot say.

4. The next couple of considerations in section 60CC (2), which include payment of child support, are not relevant to the decision I have to make.

Section 60CC (3) (f) 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;

1. X has not seen the father for nearly two years. If time resumed supervised, she would have to be reintroduced to him. It could be unsettling and difficult for her. She is not an adult, she is a child. She may well not fully understand what was happening.

2. She would have be re-introduced to him for the first visit and then three to four months later she would have to do it again. It is not as if she would be seeing him frequently. She would be seeing him infrequently and she may well not understand why all that was happening.

3. A concern expressed during the hearing about what might happen if an order was made for supervised time four times a year was the pressure that could be placed on the mother to agree to something different once the time commenced.

4. The family report writer was concerned that after the father began spending a little bit of time with the child he might work on the mother to try and get her to agree to unsupervised time. Her concern arose out of the fact that notwithstanding that Ms D was very protective of E on the day of the incident and was fully aware of what had happened to her daughter, it was revealed during the family report interviews that she was allowing her younger daughter F to spend time with the father.

5. She could not allow E to do so, because there was a two-year ADVO in place protecting E from the father, but the ADVO was also meant to prevent the father from seeing other family members of E’s. Ms D was not adhering to that and was allowing the father to see F.

6. The family consultant was very concerned about the fact that the father had been able to persuade Ms D to do that, and her concern was amplified by the fact that he told her that he hoped to commence spending time with E again once the two-year ADVO had expired.

7. The mother feels herself under pressure already from the father and the paternal family. If an order is made for her to take X to see the father on three or four occasions each year she could find herself under pressure to agree to additional or alternative time.

8. Another difficulty that could arise is that if X sees the father supervised for several hours and he seems pleasant to her, and her memory of what has happened to E fades, she may start asking the mother to allow her to spend time with the father outside of the supervised time.

9. The father could subtly work on X, asking her to try and arrange for that to happen. The father has a strong desire to spend time with X and he could do that. The mother could find herself under pressure through X to agree to something beyond the child spending supervised time with the father, and the risk of harm which spending unsupervised time with the father would entail for X cannot be overstated.

10. E was assaulted, was given a substance, and was in hospital for a week. The father did not call an ambulance the following morning or do anything to assist her. If Ms D had not called around early the child might have spent all day on the mattress asleep.

11. The father has no concept of harm. He is incapable of protecting children and he places them at risk of harm. It would be strongly against X’s best interests if a situation was created where she came to view the father in a positive light, her memory of what happened to E faded, and she began to work on the mother to let her spend unsupervised time with the father.

12. If X spends no time with the father that also is not necessarily the best outcome for her. The family report writer said as follows:

    If no time is ordered by the Court, the relationship between the subject child and the father will most likely cease as a direct result. The impact on the mother will be positive, the impact on the father will clearly be negative and the child may be ambivalent about the lack of the relationship, with fear reduced but with a loss and grief of a parental relationship. However, the relationship between the child and the father is currently limited and thus if no time were ordered, the deficit for the subject child would be lessened. If no time between the father and the subject child is ordered, it is recommended that the Court strongly consider restraint orders, designed to protect the mother from coercion from the father.[3]

    [3] Family report prepared by Dr B dated 8 May 2020 – see paragraph 206

13. I will take into account in coming to a final decision the loss to a child of not having a relationship with a parent.

Section 60CC (3) (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

1. The father has zero capacity in that regard, in fact he is a harmful parent.

2. The mother is parenting X well.

3. The mother’s solicitor submitted that an order for the father to spend supervised time with the child four times a year might have a negative impact on the mother’s parenting capacity. On the basis of the evidence I cannot find that it would impact on her parenting capacity, in other words, that having to facilitate that would mean that she was not able to properly parent X on a day-to-day basis.

4. A number of the other considerations are not relevant. One that is relevant though is family violence.

Section 60CC (3) (j) any family violence involving the child or a member of the child’s family

1. The father has committed several serious acts of family violence.

2. The mother reported to the police when the father was arrested in 2014 that it was the second time he had assaulted her.

3. The assault on her in 2014 was extremely serious, causing her physical injury.

4. The father assaulted E in 2019. There is nothing to suggest that something like that – an assault on an adult or a child – could not happen again in the future. Family violence is a significant consideration in this matter.

Section 60CC (3) (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

1. An order for no time is that order. An order for supervised time, or an order for letters, cards, and gifts, or for photographs four times a year, could easily lead to further proceedings.

2. I am going to footnote in the reasons the case of Mertens & Mertens[4]. It illustrates the problems that can arise from an order for supervised time: because there were issues with a service provider being willing to continue to provide the supervision; because the child becomes reluctant to go; or because there is a break in the time and then one parent wants to resume it and the other does not. Those problems all occurred in that case and led to an enormous amount of stress and difficulty for the parties and the child, and the matter eventually came back to Court and a second hearing had to be conducted.

   [4] Mertens & Mertens [2020] FCCA 207

3. An order for supervised time, for a whole variety of reasons, can readily lead the matter back to Court and an order for letters, cards, and gifts can also do that, and in Mertens & Mertens that situation also arose.

4. There are other reasons though, besides the ones that occurred in that case, why letters, cards, and gifts orders do not work, and one of them is people hiding subtle messages in the letters, cards and gifts to the children. An order permitting letters, cards and gifts to be sent might seem innocuous but it is also not necessarily problem-free and also carries with it the risk of further proceedings.

5. The only thing that does not is a no time order.

The family report

1. The family report is an excellent report. It contains a very thorough consideration of the various options that were available in this case.

2. The family report writer expressed the view that unsupervised time could not be considered and she considered the alternatives, namely frequent professionally supervised time; video calls; recognition-type supervised time which is what the father ultimately sought in his case; and no time. She said as follows:

   Based upon the information within this report, the Family Consultant considers that the ongoing risk of harm to the subject child continues to be significant and the risk of harm to the subject child if she were to spend time with the father is of concern. Options for the time between the father and the subject child, include no time, video calls only, regular supervised time, irregular supervised time and unsupervised time. These options will be discussed and the pros and cons of each option explored.

   If unsupervised time did occur, this would raise the psychological distress levels for the mother significantly and would impact upon her ability to function as the primary carer of the subject child. Concern would be raised regarding the effect of long-term anticipatory stress on the mother and whether this may result in a mental health diagnosis, particularly given her history of mental health issues. This would then cast doubt as to the ongoing parenting capacity of the mother and may result in a decreased ability of the mother to meet the emotional, psychological and physical needs of the subject child. The subject child has always been cared for by the mother and this relationship is the most important relationship to the subject child and needs to be prioritised above all other relationships. Furthermore, it is thought that the subject child may experience fear and distress if an ongoing unsupervised time relationship were ordered, due to her awareness of the harm perpetrated by the father against E.

   The view of the Family Consultant is that supervised time needs to be professionally supervised and be based in a Contact Centre. If time for identity purposes at a Contact Centre is ordered, this will ensure the child retains the current limited relationship with the father and will permit her to determine what level of relationship she wishes with the father when she becomes an adult. However, the subject child is currently aged 5 years of age, suggesting there would be 14 years or more of supervised time for identity purposes, which is a lengthy period of time. Furthermore, it is unclear as to whether the father would be eligible for inclusion into a Contact Centre given his convictions against harming a child. This option would reduce the level of stress on the mother, and reduce the likelihood of direct harm to the subject child by the father, however could continue to expose the subject child to distress and fear at spending time with the father and may cause destabilisation in her life, due to the period of time that this time would be expected to occur for.

   Another option is supervised regular time in a Contact Centre. Regular supervised time would place a significant burden upon the mother and the subject child and it is thought that this time could result in distress and destabilisation for the subject child. Again, this time would need to occur for over 14 years and does not appear appropriate for Final Orders. However, it would ensure that the risk of direct harm to the subject child would be mitigated and a relationship between the child and the father may be able to occur.

   The father’s proposal in interview is for video calls only to occur. A positive of this contact would be that there would be no direct harm to the subject child, however there could continue to be emotional distress experienced by the subject child. The Family Consultant would be concerned about the father’s access to the mother via these proposed phone calls and would be concerned about his capacity to attempt to coerce the mother to permit him to spend time with the subject child, which may be consistent to the father’s current access to his child, F.

   If no time is ordered by the Court, the relationship between the subject child and the father will most likely cease as a direct result. The impact on the mother will be positive, the impact on the father will clearly be negative and the child may be ambivalent about the lack of the relationship, with fear reduced but with a loss and grief of a parental relationship. However, the relationship between the child and the father is currently limited and thus if no time were ordered, the deficit for the subject child would be lessened. If no time between the father and the subject child is ordered, it is recommended that the Court strongly consider restraint orders, designed to protect the mother from coercion from the father.[5]

   [5] Family report prepared by Dr B dated 8 May 2020  – see paragraphs 201 to 206

3. The family report writer recognised that it would be a loss for the child not to have a relationship with her father but she considered that when the risk to the child of making any order for time was compared with the benefits to the child of a long-term supervised time order, on balance, a no time order was to be preferred.

4. Her recommendation was as follows:

   It is recommended that the father spend no time and have no contact with the subject child.[6]

   [6] Family report prepared by Dr B dated 8 May 2020 – see paragraph 214

5. The report is very well done. There is nothing in it which is factually inaccurate or different to what I would have found based on the evidence available to me, and the family report writer very carefully considered the different options. However it is only a piece of evidence in the case. Ultimately I have to make the decision about what is going to happen based on all of the evidence which is before me.

Conclusion

1. The father submitted that it would be beneficial for the child to have recognition contact with him three or four times a year. It would ensure that the child knew she was loved, and she would be at no risk of harm if she spent that time with him.

2. However while the father might enjoy seeing his daughter four times a year, there is a likelihood that the time would be unsettling and difficult for X. She might struggle to understand why it was happening. She does not need to see the father in order to understand that he loves her. That knowledge can be given to her in counselling or by having the orders explained to her by a family consultant.

3. There is no demonstrable benefit to X in making that order, and there is an unacceptable risk that it could cause some harm for her.

4. There is an unacceptable risk that the father might use it as a lever to get back into her life in a more extensive way. He has come to this Court saying, “I only want recognition contact four times a year”, but in reality he does not accept that X is at any risk of harm from him.

5. He does not accept much responsibility for what happened to E, and there is an unacceptable risk that the mother might find herself under pressure if the child commenced spending this supervised time with the father, either because pressure was applied by X herself, who began to forget what had happened in the past, or was applied by the father, who asked X to suggest that he should spend unsupervised time with her, or was placed on the mother by members of the paternal family.

6. There is an unacceptable risk that if an order for supervised time is made, the mother might find herself under pressure to give in and to agree to different time and perhaps even unsupervised time, because truth to tell, I am unconvinced that the father accepts that he is a risk of harm to the child. The mother might find herself under that pressure, and if she gave in to it X would be at a very high risk of harm from the father. Unsupervised time simply should not happen.

7. The letters, cards, and gifts order the father sought seems innocuous on the surface, but it also can lead to many problems and again one has to ask, what is the benefit to the child in making that kind of order?

8. If the best the father can offer the child as a parent is to send her a present at Christmas and on her birthday, he needs to reflect very seriously on what a poor father he is, and I am not going to make that order.

9. There is no demonstrable benefit to the child in receiving those items twice a year, and the order has, as I mentioned earlier, the potential to cause ongoing problems. The mother and the child need to have a line ruled under this so that they can get on with their lives without having to worry about what the father is doing or might do in the future.

10. Basically, it is the same in relation to the photographs; what benefit is there to the child in me making an order that the mother send the father photographs of the child four times a year? It might be nice for the father, but there is no benefit in it to the child, and I have to focus on the child’s best interests, not the father’s, in making the orders.

1. What the father is seeking is orders which will allow him to remain in the child’s life without having to accept any responsibility for his actions, or make any changes in his behaviour, or do anything at all about his mental health, his drug use, or his propensity to be violent to adults and children. The father needs to take that responsibility if he wants anything to change in the future.

2. I cannot be at all optimistic that he will ever do so. He assaulted his daughter E and caused her harm. He accepts no responsibility for that. There is no sign that he is likely to make the kind of changes in his life which means that he can be a valuable father to any of his daughters, and I am not going to make an order allowing him to be on the fringes of X’s life if he is not prepared to make those changes.

3. X simply needs to accept that the father is not going to be part of her life, and she can accept that through counselling and through, perhaps, having the orders explained to her by a family consultant.

4. I am going to make orders largely as sought by the mother.

5. At the end of me delivering these reasons, the mother asked if the court would make an order changing the child’s surname to a hyphenated surname. This was raised with the father who consented to it and I have made that order.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Associate:

Date: 10 February 2021