Labriola & Porra
[2023] FedCFamC1F 1107
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Labriola & Porra [2023] FedCFamC1F 1107
File number(s): ASC 1 of 2020 Judgment of: BERMAN J Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – CHILDREN – Interim – With whom a child lives with and spends time with – Allegations of risk – Where the applicant seeks orders to suspend the first respondent’s time with the child – Where the first respondent seeks orders for an increase in time – Assessment of unacceptable risk at an interim hearing – Where the single expert urges the Court to take a cautious approach – Where it is conceded by the parties that multiple handovers are not beneficial for the child – Consideration of block time spending – Orders.
FAMILY LAW – CHILDREN – Interim – With whom a child spends time with – Where the applicant alleges that the grandfather sexually interfered with the child – Where there is a current injunction restraining the grandfather from coming into contact with the child – Where the first respondent seeks to spend Christmas with the child and the grandfather – Consideration of variation of an injunction – Assessment of unacceptable risk at an interim hearing – Untested evidence – No order.
Legislation: Marvel & Marvel (2010) 240 FLR 367. Cases cited: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC. Division: Division 1 First Instance Number of paragraphs: 108 Date of hearing: 14 December 2023 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: SE Lawyers Counsel for the First Respondent: Mr Hii Solicitor for the First Respondent: Noble Law Counsel for the Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Visser Solicitor for the Independent Children's Lawyer: Legal Aid Commission ORDERS
ASC 1 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LABRIOLA
Applicant
AND: MS PORRA
First Respondent
MR TURNER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
19 DECEMBER 2023
UPON NOTING THAT:
(a)All applications for final orders are listed for trial to commence on 12 August 2024 in the City B Registry; and
(b)The matter is listed for trial directions on 5 February 2024.
THE COURT ORDERS THAT:
1.Order 5 of orders made 10 November 2021 is suspended.
2.The first respondent shall spend time with X born 2016 (“the child”) as follows:
(a)From the conclusion of school on Thursday (or 3.30 pm on a non-school day) to the commencement of school on the following Monday (or 8.30 am on a non‑school day) and each alternate week thereafter; and
(b)By FaceTime communication on two (2) occasions in the intervening week when the child is not spending time with the first respondent as may be agreed between the parties but in default of agreement, each Tuesday and Thursday from 6.00 pm to 6.30 pm.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Ms Labriola (“the applicant”), Ms Porra (“the first respondent”) and Mr Turner (“the second respondent”) are the parents of X born 2016 (“the child”).
The first respondent commenced proceedings on 25 November 2020 seeking orders to determine the future parenting arrangements for the child. The orders were opposed by the applicant.
It is a feature of the proceedings that up until the hearing on 14 December 2023, the second respondent has not sought to actively engage in the proceedings.
On 10 November 2021, the applicant and the first respondent agreed final orders summarised as follows:
(1)That the applicant and the first respondent have equal shared parental responsibility for the child.
(2)That the child live with the first respondent.
(3)That the child spend increasing periods of time with the first respondent such that upon the child attaining 11 years of age he shall spend five (5) nights a fortnight with the second respondent.
The parties were also able to reach agreement in respect of school holidays, special occasions, international travel and communication between the parties concerning matters that were likely to affect the child.
The breadth of the orders indicated that each of the parties had given proper consideration to the child’s future parenting arrangements. It was apparent that the parties intended the orders to be of long standing.
The second respondent was not a party to the orders and it is understood that whilst he wanted to maintain a role in the child’s life, he did not want to actively engage in the day-to-day parenting of the child.
As foreshadowed, the second respondent may reconsider his reluctance to engage formerly in the proceedings and may seek orders in his own right rather than be a witness in the proceedings likely in support of the first respondent.
On 1 November 2022, the applicant filed an Initiating Application seeking the following orders:
(1)That the orders dated 10 November 2021 be discharged.
(2)That the applicant have sole parental responsibility for the child.
(3)That the child live with the applicant.
(4)That the child spend time with the respondent on such conditions and at such times as agreed between the parties or ordered by the Court.
(5)That the respondent be restrained and an injunction granted restraining her from bringing the child into contact with the grandfather, Mr C, or allowing any other person to do so.
The applicant filed a supporting affidavit and a Notice of Risk on 31 October 2022.
The catalyst for the applicant relitigating the proceedings is summarised in the following paragraphs from the applicant’s affidavit:
11.There have been a number of concerning incidences since final orders were made in November 2021 involving the safety and wellbeing of [the child] in the respondent’s care. [The child] has made disclosures to me which have caused me concern. [The child] has also made disclosures to me re being inappropriately touched by the respondent’s father, [Mr C]. Further, [the child] has made disclosures to other family members, his school and a therapist he has under the [therapy] program.
12.Further, [the child]’s behaviour has deteriorated over the last, at least, three months. He is running away from school, hitting other children and exhibiting sexualised behaviours.
The applicant alleges that the child has made two disclosures about the first respondent physically assaulting him in mid-2022. The allegations were the subject of report to the police.
The applicant also had other concerns that she considers are consistent with the child being subject to neglect in the first respondent’s house exemplified by the child having been bitten by flees, returning home hungry and emotional, returning in an unkept and unhygienic state and the child demonstrating reluctance to spend time with the first respondent.
A further concern is that the child may have been exposed to sexual activity and sexualised art that involved the first respondent.
The respondent filed a Response to Final Orders on 15 November 2022 seeking orders that the applicant and the first respondent have equal shared parental responsibility for the child, that the child shall live with the first respondent and spend time with the applicant every second Friday from 3.00 pm on a school day to Sunday 5.00 pm.
In addition, the first respondent sought orders that the child spend 42 days cumulatively across school holidays such that 21 days be taken during the term 4 school holiday period and the remaining 21 days be taken across terms 1, 2 and 3.
The first respondent relied upon an affidavit filed 14 November 2022 and asserts that the applicant has a propensity to make false accusations in order to disrupt the relationship between the first respondent and the child.
The first respondent specifically denies the allegations that the child has been exposed to sexual activity thereby resulting in sexualised behaviour or that the child is at risk of emotional, psychological or physical abuse.
The first respondent acknowledges that allegations have also been made concerning inappropriate touching by Mr C (“the grandfather”) but she denies that they are true. The first respondent contends that the child has a close and loving relationship with her extended family including, the grandfather.
On 16 November 2022, a Senior Judicial Registrar ordered the appointment of an Independent Children’s Lawyer (“ICL”) and, relevant to the current interlocutory proceedings, the following order was made by consent until further order:
9.The first respondent is restrained and an injunction issued restraining the first respondent from:
(a) Bringing the child into contact with [Mr C]; or
(b) Allowing any other person to do so.
There has been some discussion as to whether the prohibition imposed on the first respondent bringing the child into “contact” with the grandfather was intended to include physical and non-physical contact. It is conceded that the grandfather has, on occasion, spoken to the child via visual platform.
The proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia (“the Court”) and was on a case management pathway, albeit labyrinthine and at significant cost to each of the parties, interrupted by the first respondent filing an Application in a Proceeding on 17 November 2023 seeking the following orders:
1.That the restraint/injunction ordered on 16 November 2022 by consent against the first respondent from:
(a) bringing the child into contact with the grandfather; or
(b) or allowing any other person to do so;
be discharged.
1A.In the alternative to 1 above, that the restraint/injunction ordered on 16 November 2022 by consent against the first respondent be varied to read:
That the first respondent is restrained and an injunction issued restraining the first respondent from leaving the child unsupervised in the presence of [Mr C].
2.That the child live with the applicant mother and spend each alternate week with the first respondent mother from after school Wednesday to the commencement of school the following Monday (5 nights).
3.That the child’s online psychologists sessions with his therapist [Ms D] be conducted on an alternating basis at each of the mother’s residence.
The Application in a Proceeding was met by a Response to Application in a Proceeding filed 8 December 2023 seeking the following orders:
1.That the first respondent’s Application in a Proceeding filed 16 November 2023 be dismissed.
2.Until further Order paragraphs 4 to 7 of the final parenting orders dated 10 November 2021 be suspended with the child [X] residing with the applicant and spending no time with the first respondent save and except as follows:
(a)On a supervised basis through Children’s Contact Service at [E Family Services] on times and dates as directed by the Service.
3.Until further order, an injunction be granted restraining the first respondent from:
(a) Attending or coming within 100 metres of the child’s school; and
(b)Attending or coming within 100 metres of the child’s place of residence.
The Application in a Proceeding and the Response to Application in a Proceeding were supported by detailed affidavits. On this occasion, the Court was assisted by Case Outlines field on behalf of each of the parties and the ICL.
The second respondent appeared self-represented at the interlocutory hearing and whilst not seeking any orders, he relies upon an affidavit that opposes the contentions of the applicant and supports the position of the first respondent both in terms of interim or interlocutory orders but also in terms of final orders.
THE FIRST RESPONDENT’S APPLICATION IN A PROCEEDING
The first respondent considers that the applicant continues to invent and fabricate allegations for the express and malicious purpose of disrupting the first respondent’s relationship with the child.
The continued focus on allegations concerning the grandfather are a continuation and extension of the strategy that the first respondent contends is adopted by the applicant.
It is reasonable to find that the catalyst for the current application is that the first respondent would wish to take the child during the upcoming Christmas holiday period to her parent’s home in New South Wales to allow the child to enjoy a relationship with his grandparents and extended family.
It is not controversial that since the orders of injunction were put in place, other than the anomaly of the child communicating with the grandfather, the child has not spent time with him during the 2022 Christmas period nor in May 2023 when the first respondent’s parents visited her in City B.
The basis of the orders sought by the first respondent is that the applicant’s allegations involving the grandfather have been the subject of full and complete investigation both by the police but also the relevant child protection authority.
As a result of procedural orders made, extensive documents have been produced by the child protection authority and the Police pursuant to s 69ZW orders.
The first respondent contends that the applicant has “weaponised” the child and that any purported disclosures made by the child are the subject of coaching.
At paragraph 20(a)-(g) of the first respondent’s affidavit, she summarises by way of a review of the child protection authority materials, various references that suggest the relevant author of entries in the produced documents considered that a potential explanation for the child’s disclosures was as a result of coaching by the applicant.
The parties have previously reached agreement that the child would see a therapist. The sessions are conducted remotely and have been ongoing since July 2023. There have been at least nine sessions.
Other than some email communication between the therapist and the parties, there is no report available and there is some uncertainty as to why ongoing therapeutic intervention is necessary. Neither party was certain as to the focus of the therapy or the therapeutic goals that hopefully can be achieved nor when it would reasonably anticipated that therapeutic intervention will have run its course and may no longer provide any advantage to the child.
I raise the issue of a continued involvement of the therapist given that as a result of the final orders made in November 2021, the parties have equal shared parental responsibility for the child and accordingly, the continued involvement of the therapist can only occur whilst the parties agree that the child has a need for ongoing therapeutic intervention.
Whilst the respondent initially sought the therapeutic sessions alternate between the homes of the applicant and the respondent, no order for that to occur is now pressed by the first respondent.
I note that I cautioned the parties to consider the continued involvement of the child in therapy, assessment, interview and observation lest the process itself, even with benign intention, may cause the child distress, anxiety and psychological harm.
Whilst the parties have not undertaken a comprehensive consideration of the number of times that the child has been the subject of interview, assessment or observation by child protection agencies, the police, and the parties’ decision to engage the child in therapy, even the most cursory review of the extensive materials comprising in s 69ZW documents, reports and other materials, would suggest the level of the child’s involvement in the process and the proceedings has the potential to be damaging.
THE APPLICANT’S RESPONSE
The applicant maintains her position that weight should be given to the allegations made by the child that he has been the subject of sexual touching by the grandfather and has been exposed to inappropriate sexualised conduct by the first respondent both directly but also with the child being exposed to inappropriate stage performances involving the first respondent.
The applicant denies that she has engaged in any behaviour consistent with coaching the child to make up and fabricate allegations. She emphasises that her observations of the child when he returns from the first respondent’s home is that the child is agitated, dysregulated and is becoming oppositional in his behaviour particularly when faced with having to return to the first respondent’s home pursuant to the orders.
On an interim basis, it is not possible to determine whether the purported allegations made by the child are the subject of fabrication fuelled by the applicant’s antipathy towards the first respondent or that they have substance.
What is not controversial is that despite there having been numerous notifications made to the child protection authority and the Police, investigations and assessments by each of the relevant authorities has not substantiated the matters raised by the applicant.
That there is a lack of substantiation does not in and of itself mean that the allegations have no substance but rather it is a matter that remains to be established by the applicant who seeks that opportunity at trial. At this stage, it was considered premature to enquire of the applicant the evidence that she is likely to call in circumstances where the child protection authority and the Police do not intend to take any further action.
There is therefore allegation and counter allegation which suggests that the Court should adopt a cautious approach.
If the matters raised by the applicant are given weight, she seeks that the first respondent’s time with the child be the subject of supervision, that there should not be an extension of time from four nights a fortnight to five nights a fortnight and certainly, at this stage, the injunction restraining the child from coming into contact of communication with his grandfather should remain pending trial.
THE COURT CHILD EXPERT
Pursuant to an order made by a Senior Judicial Registrar on 27 January 2023, Ms F (“the Court Child Expert”) prepared a Family Assessment Report dated 20 March 2023 following a family assessment involving interviews with the parties (including the second respondent), observed interaction between the parties and the child and consideration was given to various court filed documents together with subpoenaed material comprising s 69ZW documents from the Police and the child protection authority.
The Court Child Expert appropriately considered the parameters of the parenting dispute and was aware of the relevant background history.
The Court Child Expert recorded the proposals of the parties and was aware that the first respondent sought that the child’s time be shared equally between the parties whereas the applicant sought that there be no time between the child and the first respondent but if there was to be time spent, then it should be supervised.
The Court Child Expert recorded that the first respondent considered that the child was coping with the current arrangements but that there was a difficulty with the routine where the child spent time with her in each week. The first respondent’s preferred position is that there be a block of time given that her experience during holiday periods is that the child is more settled.
The applicant did not consider that the child was coping with the current arrangements but that he was too frightened to voice his concerns and if there was a change in the narrative it was because he was being manipulated be the first respondent.
The child was aged six years at the time of interview. His initial reaction was that he liked living with the applicant but was concerned as to the first respondent’s home because he had been smacked by the first respondent. The child did not know why he had been disciplined but he did not think that it had occurred on more than one occasion.
There was some confusion recorded by the Court Child Expert as to the child’s relationship with the second respondent.
It is apparent that the second respondent spends time with the child however of recent date, time spending is whilst the child is in the care of the first respondent rather than the applicant.
The Court Child Expert then observed interaction between the first respondent and the child. The observations of the Court Child Expert were of a warm and appropriate relationship. There was nothing observed that would suggest the child was in fear of the first respondent.
The Court Child Expert formed the view that the matters raised by the child prior to the observed interaction were incongruent with the close physical attachment between the first respondent and the child.
The child was observed to refer to the first respondent as “mum” and the language exchanged between the child and the first respondent was positive and warm.
A similar observation was made of the applicant and the child. The applicant was referred to as “mumma” and there was a demonstrable display of affection between the applicant and the child. It was also apparent that the applicant was keen to emphasise the child’s Country G heritage.
The relationship between the applicant and the child demonstrated close emotional attachment.
The conundrum for the Court Child Expert is summarised in the Family Assessment Report as follows:-
81.[The child] aged 6 years is fortunate to have the love and care of all three adult parties in this matter and each of them want what they perceive to be in his best interest. Despite this, there is an intersection of potential risk factors in this matter between family violence, mental health, and child abuse.
The Court Child Expert properly highlighted that the significant issue to be determined is whether the child has been physically or sexually abused or exposed to sexually inappropriate behaviour.
It appears that the applicant satisfied the Court Child Expert of her genuine belief that abuse occurred as did the first respondent of her denial of the allegations.
The early history of the proceedings, leading up to the Consent Orders made in November 2021, was consistent in an acceptance by the applicant that the child had a good relationship with the first respondent.
In the absence of any credible explanation to the contrary, it is reasonable to assume that the comprehensive and detailed nature of the November 2021 Consent Orders was intended by the parties to reflect the best interests of the child.
The Court Child Expert did not seek to determine the factual issues in dispute and, in particular, whether the child had been exposed to sexual abuse and inappropriate sexual behaviour. The Court Child Expert observed that the child is acutely aware of the conflict between the parties and understands that they do not like each other. The child’s reaction in interview, when discussing the first respondent and in particular the reference to her going away, can be placed into better context by the following paragraph from the Family Assessment Report:
87.[The child] is acutely aware of the conflict between his mothers and he perceives they do not like one another. He also believes that [the first respondent] is sad and [the applicant] misses him when he spends time with the other parent. One of [the child]’s wishes was for [the first respondent] to go away and he thought this would make [the applicant] happy. [The child]’s behaviour during the observation session with [the first respondent] was not congruent with him stating that he does not like to do anything with her because she smacked him on the arm; on the contrary, they were observed to enjoy their time together. It is highly likely that [the child] may have been drawn into the midst of the conflict between his mothers and he may feel as though he is caught in a loyalty bind. This may result in [the child] feeling responsible for his parent’s emotions and wellbeing; it may create anxiety, and it may put pressure on him to align himself with one parent as a means of coping.
Doing the best that could be done by the Court Child Expert to summarise the circumstances in which the child finds himself, recommendations were made that if the Court finds the child is unsafe in the first respondent’s care, then orders should be made in terms of the applicant’s proposal namely, that the child live with her and spend only supervised time with the respondent.
However, if the evidence supports the first respondent’s contention that there is no issue or concern in the child spending time with her, then time spending should be on the basis of each alternate week from after school on Wednesday to the commencement of school on the following Monday as well as FaceTime communication.
At the time of the assessment, the Court Child Expert considered that her recommendations may be better informed by each of the parties undergoing a psychiatric assessment. Orders were made that required the parties to attend upon Doctor H (psychiatrist). Dr H swore an affidavit on 13 November 2023 and annexed a report outlining the result of his psychiatric assessment of each of the parties.
Whilst perhaps doing a disservice to the comprehensive nature of the psychiatric reports as to the parties functioning, it is not surprising that neither party was diagnosed as suffering from a psychiatric condition or diagnosis that would adversely impact upon their separate ability to care for the child.
By way of an aside, I remain concerned as to the power that exists to order parties to undertake a standalone psychiatric assessment unless it is a condition of a parenting order.
INTERIM PARENTING
In Marvel & Marvel (2010) 240 FLR 367 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
APPLICATION OF PARENTING PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act 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.
In applying the primary considerations as set out in s 60CC(2) of the Act, s 60CC(2A) of the Act sets out that the Court is to give greater weight to the consideration set out in paragraph (2)(b).
The Court must also take into account the additional considerations as set out in s 60CC(3) of the Act.
CONCLUSION
The parties do not ask me to make any orders in respect of the child’s continued attendance on the therapist. As considered, it is a matter for the parties as to whether they are able to reach a consensus that there is benefit to the child by the continued therapeutic sessions. In circumstances where the parties have equal shared parental responsibility, I do not consider that it would be open to one party to require the child to undertake therapy if not supported by the other party.
I have given careful consideration to the orders sought by the first respondent that the injunction restraining the child from coming into contact with the grandfather be discharged or in the alternative, that the child be supervised by the first respondent on any occasion that he is in the presence of the grandfather. I have listed the proceedings for final hearing to commence on 15 August 2024 in the City B Registry.
The parties and the child continue to reside in City B. At present, there is no intention by either of the parties to seek that the child be relocated away from City B.
The first respondent’s parents reside in New South Wales. Whilst the first respondent would want to attend at her parent’s home for Christmas with the child, the reality is that the potential for the involvement of the grandfather with the child would possibly only occur on a further two occasions before the anticipated trial.
The concern of the applicant in respect of the allegations made by the child that the grandfather may have been sexually inappropriate with him are not matters that are able to be determined at the appropriate standard of proof on an interlocutory hearing.
Whilst I accept that all reasonable investigations undertaken by police, that the child protection authority have not substantiated the allegations and that there are no further investigations pending, I am acutely aware of the need to protect the child from the attitude, conduct and emotional overlay of each of the parties but in this particular circumstance, the applicant.
I must always consider the advantages and disadvantages to the child of the separate proposals of the parties. The focus is not upon the wants and needs of each of the parties but rather on what is in the best interests of the child.
It is likely that until the applicant has had an opportunity to present her evidence that she says will substantiate the allegations concerning the grandfather, she will consider that the child would be at risk if he came into contact with him.
I do not ignore the considerable benefit that would be enjoyed by a child of having a relationship and knowledge of each of the parties’ extended families. The applicant is proud of her Country G heritage and culture and she considers that it is important for the child to experience and understand his ethnic origins.
A similar consideration arises in respect of the first respondent wanting the child to understand her extended family, their history and life stories.
The report of the Court Child Expert cautions against exposing the child to the continuing conflict between the parties. It appears that the child is already aware of the intense dislike of the parties for one another and is only likely to be placed at further emotional risk if orders are made without the Court being able to determine the weight that should be given to the allegations of the applicant that the grandfather poses a risk.
I also bring to account that the first respondent recognised the depth of belief by the applicant of the truthfulness of the allegations in her consent to the injunction that she now seeks to discharge.
On balance, in circumstances where the evidence is not able to be tested, I should err on the side of caution in relation to the potential for the child coming into contact with his grandfather. Again, I do not ignore that the allegations have been subject of detailed consideration by the police and the child protection authority and have not been substantiated.
The proceedings are adjourned to 5 February 2024 for trial directions. On that occasion, the parties will be obliged to indicate the evidence that they will rely upon and at that point the case that is to be presented by the applicant in support of her concerns regarding the child coming into contact with the grandfather will be identified and better understood.
The circumstances of the first respondent are however quite different.
The applicant was ready to concede the orders of 21 November 2021 as being in the interests of the child.
The s 69ZW documents reveal that there have been multiple notifications made by the applicant in respect of her concerns regarding the child potentially being at risk in the care of the first respondent. The allegations have been properly considered and have not been substantiated.
Furthermore, the child has been spending regular time with the first respondent and whilst I accept that more recent allegations are made by the applicant following the Family Assessment Report, the significant benefit to the child of an ongoing relationship with the first respondent (providing it is safe to do so) is demonstrable.
I am not able to test the allegations made by the applicant of alleged inappropriate conduct by the first respondent nor am I able to determine the weight that should be given to concern of the first respondent that the child has been coached by the applicant to make false disclosures.
I am required to balance the interests of this child and in doing so I consider that the advantage to the child of maintaining a relationship with the first respondent significantly outweighs the disadvantage to the child of the proposed orders of the applicant which would likely result in either a significantly diminished relationship or no relationship at all between the first respondent and the child.
I am not however, persuaded that there is evidence at this stage which would support an extension of time from four nights to five nights per fortnight.
I acknowledge that the Consent Orders proposed that when the child reached the age of 11 years, then the time would extend to five nights a fortnight. As such, even on the first respondent’s own case, without further evidence she accepted that all other things being equal, there should be a gradual increase of time rather than an immediate move to five nights a fortnight.
The recommendation of the Court Child Expert may ultimately have some weight or advantage when considering final orders but there is nothing which underpins her recommendations for the purposes of interim orders over the next eight months.
What is important is that orders be made that are in the best interests of the child and in particular, that allows the child to maintain a meaningful relationship with his parents. The evidence supports a finding that at this stage, whether it be four nights or five nights a fortnight, a meaningful relationship would be maintained.
I do consider that there is merit in the recommendation of the Court Child Expert that the conflict between the parties and therefore the potential for emotional distress occasioned to the child is heightened by the current arrangement which provides for multiple handovers per fortnight. Each party agrees that the fragmented handover arrangements are problematic and allow for the continuing conflict between them.
I am assisted by the helpful submissions of the ICL and the clarity of position as enunciated in her Case Outline document.
The ICL does not support a discharge of the injunction restraining the first respondent from bringing the child into contact with the grandfather nor does she support the effective suspension of the child’s time with the respondent.
There is support for a block of four nights a fortnight and I consider that to be an appropriate outcome.
I propose to suspend the operation of paragraph 5 of the Consent Orders made 10 November 2021 and provide for the child to spend time with the first respondent each fortnight from the conclusion of school Thursday to the commencement of school on the following Monday. I consider that the child’s interests will also be served by there being two periods of FaceTime communication in the week that the child does not spend time with the first respondent.
I do not propose to interfere with the other extant orders as set out in the final orders nor do I propose to discharge the order of restraint in respect of the child’s grandfather.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 19 December 2023
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