Magee and Pearse

[2016] FCCA 2482

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGEE & PEARSE [2016] FCCA 2482

Catchwords:
FAMILY LAW – Parenting – deep animus between the parents – effect on young child – whether the Father’s time should be supervised.

Legislation:

Family Law Act 1975, ss.60C(3), 60CA, 60C(2)A

Tait & Densmore [2007] FamCA 1383

Applicant: MR MAGEE

Respondent: MS PEARSE

File Number: DGC 3377 of 2014

Judgment of: Judge Small

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Morwell

Delivered on: 24 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Magee in person

Counsel for the Respondent: Ms Stavrakakis

Solicitors for the Respondent: Victoria Legal Aid

Counsel for the Independent Children's Lawyer: Ms Taylor

Solicitors for the Independent Children's Lawyer: Julie Taylor

ORDERS

1. The matter be adjourned to the Duty List of Federal Circuit Court of Australia in the Gippsland sittings at Morwell in the week commencing 21 November 2016 at 10:00am for Directions.

2. The matter be adjourned to Federal Circuit Court of Australia in the Gippsland sittings at Morwell in February 2017 for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

3. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

4. Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

5. The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:

   (a)one affidavit setting out any further evidence in chief; and

   (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

6. Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)an outline of contentions with respect to:

   (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

   (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

   (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

   (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

   (v)any other matters  relevant to the decision; and

   (vi)a statement of the precise orders sought.

7. No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

8. If either party is to have legal aid funding withdrawn for the Final Hearing:

   (a)The solicitors shall confer no later than 7 days before trial as to which witnesses are required for cross examination at the Final Hearing; and

   (b)The solicitors are to ensure all witnesses to be relied upon are on Affidavit and are available to give evidence at Final Hearing, including the Family Consultant if any, and any other expert witness.

9. No later than 7 days before the Final Hearing each party advise the Court of the affidavit material he/she seeks to rely on at Trial.

10. No later than 2 days prior to the Final Hearing the parties shall provide to the Court an agreed list of factual issues in dispute.

11. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the child X born (omitted) 2013 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 31 January 2017.

12. The Family Report to deal with the following matters:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)the likely effect on the child if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

13. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

14. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

    (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    (c)any family violence intervention or restraining orders currently in force.

15. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

16. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

17. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

18. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

19. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

20. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. When the Father spends time with the child X born (omitted) 2013 (“the child”) at the Anglicare Children’s Contact Centre at (omitted) pursuant to Order 5(g) of the Orders of 15 June 2015, the Father shall be at liberty, on each alternate occasion, to bring with him the paternal grandfather, Mr K, and/or the Father’s children, A and B or either of them.

2. The Family consultant shall be at liberty to inspect all released subpoenaed material.

3. The Independent Children’s Lawyer shall provide to the Family Consultant copies of all reports provided by the Department of Health and Human Services and the report of Dr S.

4. The Independent Children’s Lawyer shall be at liberty to provide a copy of all Orders made in these Proceedings and the report of Dr S to the Department of Health and Human Services.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MORWELL

DGC 3377 of 2014

MR MAGEE

Applicant

And

MS PEARSE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These reasons for judgment were delivered orally.  They 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. The matter of Magee & Pearse comes before me today for interim hearing in circumstances where it was rolled over or adjourned not having been reached two or three days ago

3. The circumstances are that we have a little girl called X and X is the only child of the parties to these proceedings, they being Mr Magee and Ms Pearse.

4. X was born on (omitted) 2013.  She has just turned three last month and from all accounts she is a delightful little girl. 

5. X’s parents don’t like each other, to put it bluntly.  They both have vulnerabilities in that there are allegations, corroborated by objective public record evidence that Mr Magee has engaged in antisocial behaviours.  He has convictions for several offences, going right back almost 20 years and he appears, from what Dr S says, to have little insight into his behaviour.  The last conviction he received was in October 2015, only eight months ago and that was for breaching an intervention order after a hearing at this Court in Dandenong by approaching Ms Pearse and behaving in a very distasteful manner on that day.

6. Ms Pearse, for her part appears to have some vulnerabilities in terms of her possible continuing drug use;  her parenting skills as alleged by the father; and, it appears, she has been involved in several violent relationships.

7. The issue today is whether X’s time with Mr Magee, which has been occurring at the Anglican Children’s Contact Centre in (omitted) and which has been going on for a very long time now should continue at the centre, whether it should be unsupervised entirely or whether it should continue to be supervised outside the centre.

8. The only thing that really is agreed between the parties is that any changeover should happen at the children’s contact centre.  Beyond that, the applicant father’s proposal is that that’s all that should be supervised and he should be able then to take X away to spend time with her at his home or his father’s home or wherever he chooses. 

9. The position of the mother is that the time should continue to be fully supervised at the children’s contact centre on alternate weeks.

10. The independent children’s lawyer’s view is somewhere in the middle of that in that she proposes that the time at the children’s contact centre should continue on each alternate Sunday but that on each Saturday there should be a period of time when the father sees X, with that time being supervised by the paternal grandfather. 

11. That is the issue for me to decide today:  which of those proposals – indeed, if any, should form the basis of the Orders I make today.

12. The issues around the father’s behaviour and his propensity for violence are matters for trial.  However, there is some corroborative evidence which is as I said, on the public record, in relation to that and the Court is always very concerned about parents who think they can be abusive partners and good parents at the same time because it is my view, and the view of the Court, that that is an impossibility. One cannot be abusive to a child’s mother and think that that doesn’t affect a child.  That is adolescent thinking and it’s not possible. 

13. So a parent who, in Mr Magee’s words, sledges the other party, whether or not the child is present, is affecting the child because the mother is the primary carer of this child.  She will know that there is animosity between the parents, whether or not either of them ever tells her so.  Children absorb such things and she will know.

14. The supervisor at the children’s contact centre says that Mr Magee has said, very freely, to her that he doesn’t like the mother.  He has criticised her for being vindictive and it seems to me that it’s almost impossible for X not to be picking that up.  So I take that into account.

15. The father says that the time has been going really well and that is corroborated entirely by what the supervisor at the contact centre says.  He says that he wants to spend time with X – if it were to be supervised by the paternal grandfather – either at his home or at the paternal grandfather’s home.

16. When I questioned Mr Magee about his father’s capacity to supervise, given that he is 79 years of age, he told me that his father was “(occupation omitted)” as we speak and that he is, therefore, a robust 79 year old and that seems to be corroborated. I know that it’s a statement from the bar table but there’s no evidence to the contrary that Mr Magee Senior is a well-known (occupation omitted) who is, indeed, a robust gentleman and not a frail 79 year old, in any way.

17. The father tells me he has in his possession, which I believe the independent children’s lawyer and the mother have seen, confirmation of his enrolment in a 12 session men’s behavioural change program, which begins on 16 July.  That is greatly to his credit, that he has finally enrolled himself in that program.

18. From what Dr S says, in his report, the father doesn’t actually think he needs to enrol in such a program, which indicates a certain lack of insight but the whole point of those programs is to take men who use violent behaviour to intimidate and subject other people, usually women, to their will or to punish them for various offences that they think they’ve perpetrated against them and educate them about their violence;  about the implications of their violence, not only for their relationship with the mother of their children but with the child herself and with other people.

19. I remember when I was a solicitor and I would say to men, “Gee, it must be really hard for you at work when you can’t control your temper” – when they would say, “Gee, she just pushes my buttons and I can’t control myself”, and I would say, “Well, it must be really hard for you at work”, and they would say, “It doesn’t happen at work”, and I would say, “Well, you’ve got to start looking at why it’s happening when it happens, then”, and that’s a question of insight and these programs are designed to instil in people a sense of insight into their behaviour and its implications.

20. One thing I will say, at this point in the judgment, is that Ms Pearse and Mr Magee will be X’s parents for the rest of their lives.  This is not just about what happens over the next three months or the next year or even the next five years. 

21. What I’m trying to do here – and, as you will find out in a moment, my primary consideration must be X’s best interests, the law tells me that in black and white - but my concern here is to lay a very solid foundation for that relationship between X and her father and her mother, for that matter, so that when she is 10 or when she is 15 or when she maybe, who knows, wants her dad to walk her down the aisle, there is a relationship there that is positive and close and loving, between her and both her parents, so that things like that can happen.  So that’s where I’m headed.  I’m not just thinking about this next few months.  So that’s where I’m coming from, just to let you know that.

22. The father doesn’t believe, at this stage, that the mother’s fears are well-founded and he believes that X is being kept from him by a mother who is vindictive and who thinks it’s to her financial advantage – in terms of child support, I assume, and in terms of Centrelink, perhaps – for the father not to have much to do with X.  I can’t make findings of fact today.  I don’t know what is actually happening here.  I can only look at the evidence, as it is presented, and do the best I can, in X’s best interests.

23. The Father denies allegations of the mother that he has driven past her home in order to intimidate her.  The mother says that she has CCTV footage.  Both parties say they have installed closed circuit television cameras to protect themselves against the other. 

24. The mother says she has footage of a car, which she says is distinctively the father’s, driving past her home.  She has reported that to the police, but that the police have said they can do nothing about it because the windows on that vehicle are tinted and there is no way to tell who is driving the vehicle.  But she insists that that vehicle, which she believes to be the father’s, has driven past her house.  The father denies that he has driven past her house. 

25. That’s a classic example of a matter I can’t decide today.  I can only decide matters of fact like that when the proceedings have been taken to trial and parties have been cross-examined in the witness box.  But that is what the father says. 

26. The mother, through her counsel, is, in my view, relatively even handed, in that counsel recognises her role as an officer of the Court, but she is not an independent children’s lawyer in these proceedings and is acting for the mother, quite properly in my view.  She acknowledges, on behalf of the mother, that the relationship between X and her father is developing, that X is aware of who he is, that she enjoys spending time with him and that it’s a positive experience for X.

27. There is no doubt that these parents both love this little girl.  She is very lucky in that sense, because sometimes we have parents who persist in parenting orders or persist in parenting proceedings, not because they love their child but because they want to punish the other party and it appears that there is, very clearly, a loving relationship developing between X and her father in this case.

28. Ms Stavrakakis on behalf of the mother, emphasises that the father has no insight into the impact of his behaviour and says that he hasn’t done anything to X directly, so, therefore, he hasn’t done anything to affect her.  I’ve already said that I think that is a naive view and an uneducated view and, perhaps, the men’s behaviour change program will address that but that certainly is a naive view.

29. Ms Stavrakakis says, in different terms, what I have said about an abusive partner not being able to be a good parent.  What she has said is that a violent parent cannot be a good parent and that the risk factor here is the exposure of X to any family violence or the impact of that family violence on the mother, that it’s about the indirect exposure of X to her mother’s response to the animosity, shall we say – putting it mildly – of the father.

30. Ms Stavrakakis took me, in some detail, to the report of Dr S, which is a psychological assessment – two reports, in fact – in relation to both parents and there is no doubt from those reports that there is animosity between these parents.

31. Ms Stavrakakis notes that while the independent children’s lawyer has obtained a signed undertaking, from Mr Magee Senior in relation to supervising any time that Mr Magee spends with X, there is no affidavit from him explaining or deposing that he understands exactly what it is he is being asked to do and it is a subtlety in cases like this, where comments that may seem innocent, and may even be intended to be innocent, can be made which are profoundly distressing to children. 

32. For instance, just in the last few days, the papers have been replete with issues of whether what one person says is light‑hearted banter is, in fact, a veiled reference to violent behaviour, and sometimes, in the microcosm of a family, that can be the case as well.  So we don’t have any evidence, as such, from Mr K as to his understanding of those issues. 

1. Ms Stavrakakis also emphasised the father’s rather extensive criminal history, which, as I said, goes back some 18 years, in relation to all sorts of criminal activity. 

2. The mother, too, has some criminal convictions in relation, I think, to breaching intervention orders and, also, she is currently on bail on a charge of obtaining property by deception. The allegation is that she and her, I think, current partner or a friend left a restaurant without paying, that’s the allegation in that charge.

3. The mother also says, in her affidavit material, that she believes that a fire that was lit in her backyard was lit by Mr Magee.  He denies that and, again, that is not a matter that I can decide today.   The police have not charged him with any arson offences and, of course, the police have to be satisfied that there is a case to answer at the level of a reasonable doubt.  So they have to look at whether it’s likely that a jury might, or a Magistrate might, consider that there is a prima facie case. 

4. What I have to consider, at trial, is a different thing.  I don’t have to be satisfied to that extent – beyond a reasonable doubt – I only have to decide whether it is more probable than not that such a thing happened, but I can’t decide that today.  But if I were to decide that that was the kind of behaviour that Mr Magee engaged in, it would be a very serious matter indeed.

5. Counsel for Ms Pearse also points to the risk assessment made by Dr S, in relation to both parties.  He assesses Mr Magee as being at moderate risk of further offending and of further antisocial behaviour and says that he doesn’t have any insight into his behaviour and it is likely that – unless Mr Magee develops some such insight and understands the impact of his behaviour - it is likely that that will eventually be visited upon X and that his behaviour as a parent may be inappropriate.

6. So the mother’s concerns, says Ms Stavrakakis, are based both on her own experience and on what Dr S says.  She says that it’s not worth the risk of X hearing the father making disparaging comments about the mother and, therefore, the time needs to be supervised. 

7. She also says that the child, being only three years old and not having spent much time with her grandfather and particularly not since she was a very young child, doesn’t know him and that to have him supervising time, when she doesn’t know him, may well be not in her best interests

8. And Ms Stavrakakis, to her credit and to her client’s credit, acknowledges that the mother has her own vulnerabilities, that she has her own behavioural issues, that she has had substance abuse issues, which Dr S thinks may well be continuing and that those issues certainly provide a risk to X but Dr S assesses that risk as being low to moderate, in relation to the mother.  That’s not no risk and it’s not low risk, it’s a low to moderate risk but the mother, says Ms Stavrakakis, has tried to address those issues;  she has engaged with services which are designed to address those issues and that, too, is to her credit.  She did, however, have her children removed by the Department of Health and Human Services as recently as 2015.  There are clearly some issues involved there.

9. Counsel for the mother also draws my attention to part of the report by the contact centre, on 17 January 2016, where the father was understood to have said that if all he was going to get was five hours with X then that wasn’t worth it and that he had been encouraged to keep persisting with his relationship with her.  I hope that that is not what the father meant on that occasion because that would be truly damaging to X to have developed a relationship with her dad and then have him disappear.  That would be more damaging than if he had not had a relationship with her in the first place.  But I don’t see anything in Mr Magee’s material that would indicate that and I don’t see anything in his demeanour today that would indicate that and that’s somewhat encouraging to the Court but I just want to emphasise that that would be a very damaging thing to do to this little girl.

10. Ms Pearse says, through her counsel, that the reason she doesn’t want this time to be unsupervised is because the father, in contrast to her, has not addressed his issues.  He has now, finally, after more than 18 months – (he says that he hasn’t been able to get into a men’s behavioural change program and that may be the case) but nevertheless, it’s only now that he has enrolled in a men’s behavioural change program, which begins next month.  That, as I said, is to his credit and it’s to be hoped that he will persist through that program. 

11. Sometimes it has been my experience, both in practice and on the bench that men who don’t think they have a problem go to the first session, think, “This isn’t about me”, and don’t go anymore.  I hope that that is not the case in this case.  It is a 12 session program.  It is likely that if Mr Magee doesn’t think he has a problem at the moment that he is not going to get that insight in the first five minutes of this program, so I hope he will persist, even if he thinks, at the beginning, that it’s not for him and it’s not relevant to him because there are other people, who are seasoned professionals, who think that it is.  And while Mr Magee is a mature man, it may be that there are just some things that he doesn’t know well enough about himself and about which he needs to take the advice of, as I said, seasoned professionals.  So I hope that that will happen.

12. There is the issue, raised by the mother, I note, rather than by the father – although, it is raised in the father’s material – of the siblings being separated, that X has two older sisters, who are the result of a relationship between Mr Magee and Ms J.  Those children are now, I think, 15 and 13 and they spend time with their father, unsupervised, every alternate weekend and other times, as well, regular and frequent time with their dad and Ms J has provided an affidavit which says that he is a fine father to those two children and that she has no problem, whatsoever, with his time with the children.

13. The issue here, right at this moment, is not about Mr Magee’s relationship with X that seems to be going very well, it’s about the impact on X of the animosity between Ms Pearse and Mr Magee.  There isn’t any animosity between Ms J and Mr Magee.  So it’s not surprise that there’s no concern about his care of those two children. 

14. That is a very encouraging thing for the Court, that Mr Magee is seeing his children from his previous relationship and that his previous partner has been prepared to file an affidavit on his behalf.  That is very encouraging for the Court because it says that perhaps, in the future, that’s the kind of relationship that might pertain between these two parties.  It isn’t possible right now but it does tell me that Mr Magee is at least capable of having an amicable relationship with an ex-partner.  Let’s hope that Ms Pearse is capable of having such a relationship with him in the future but I just say that as a matter in passing.  It is something I take into account.

15. Ms Pearse says, through her counsel, that she is concerned about the paternal grandfather because she thinks that he may not be able to control his son and I assume she means not just physically but to get him to do what he wants Mr Magee to do.  There’s no actual evidence of that but it is a concern of the mother and she thinks that, like most parents, he might support his son, even if his son was doing something slightly untoward.  As I said, we don’t know.  We don’t have an affidavit yet from Mr K.  I’m almost certain that there will be one at the next hearing and certainly, if the father gets legal representation that is highly likely.

16. The independent children’s lawyer refers to the children’s contact centre report, quite rightly, as absolutely glowing.  There is nothing in that report which would cause the Court to have any concern about Mr Magee’s ability to spend time with, to engage with a three year old child and, certainly, X is very positive, not only about the time she spends, but about the prospect of time she spends.  She says, “Is my Daddy here?  Am I going to see my dad?”, when she arrives at the contact centre.  That’s a very positive thing.

17. The independent children’s lawyer wrote to Dr S to see what he would say about time away from the contact centre and Dr S said, in effect, “Well, yes, that would be okay, but only if supervised by a responsible adult, appropriate and approved by the independent children’s lawyer, and if there were no problems with the time between X and her father, at the moment”.

18. Ms Taylor, as the independent children’s lawyer, says, quite rightly, that supervised time at a contact centre can’t be indefinite, there has to be a time when time is spent outside a contact centre and Ms Taylor points out that the father has enrolled, as I said, in the men’s behavioural change program and I’ve already discussed that issue.

19. Ms Taylor has pointed out that the matter needs to move forward, in some way and I agree with that.  Mr Magee supports that view, that the matter has to move forward, and, indeed, my view is that every time a matter comes to Court it ought to move forward.  There ought to be something that changes every time a matter comes to Court.

20. The practical issue in this case is that Mr K goes to church on Sundays and, therefore, isn’t available to supervise contact on Sundays and that is one of the reasons why Ms Taylor seeks that the paternal grandfather supervise any time Mr Magee is to have on Saturdays, rather than Sundays.

21. So that is the background and the submissions that have been made in relation to this matter. 

22. When I come to the law, the law is pretty clear. This is an interim hearing and, therefore, I don’t have to go through the law in as much detail as I do when it’s a final hearing, but, basically, the Family Law Act says that when I’m making a parenting order the child’s best interests must be my paramount consideration. That’s set out in black and white in section 60CA. There’s no doubt about that whatsoever. It’s not about what mum wants; it’s not about what dad wants; it’s about what’s in X’s best interests.

23. And then the Act goes on to set out 16 separate factors that I need to consider when looking at what is in X’s best interests. 

24. Now, this is an interim hearing and I’m not going to go through every one of those 16 factors but I will look at the ones that are relevant.  Things like X’s view, of course, are not relevant because she is only two and she is very easily influenced and her views at that age – even if she said, “I want to see my daddy every day” – would not be determinative or of great weight.  All we know about her views is that she likes seeing dad; she enjoys that. 

25. The other issues are things like the nature of the relationship between the parents and the child and there’s nothing in the evidence before me to say that the nature of the relationship between X and her dad is anything but positive.  It is developing, as Ms Taylor points out.  It’s a developing relationship.

26. I need to look at the separation of siblings. That is a particular issue that I need to look at, under section 60C(3), whether the child is separated from siblings and, of course, in this case that is the case.

27. I need to look at the capacity of the parents to provide for the needs of the child, both physical and material needs, but also their emotional and intellectual needs and I simply say, in relation to that, that providing for a child’s emotional needs is one of the most important things.  Of course she needs to be clothed, she needs to be fed, she needs to be sheltered but then, after that, her emotional needs are the most important thing, in my view, for a young child. 

28. She needs to know that both she and her primary carer, who is her mother, are safe in this world.  She needs to know that she doesn’t have to worry about whether mum is upset or not.  She needs to know that she is not at any risk in the company of either of her parents and, given the evidence before the Court about Mr Magee’s lack of insight about Ms Pearse’s vulnerabilities, I think there is some concern about whether these parties are able to fully meet X’s emotional needs and it’s something that I hope both of them will have a look at and, at least, be aware of.

29. I need to consider the attitude of each parent to the child and to their responsibilities as parents and again, it’s a similar thing, the attitude of the parents to the child is that each of these parents love this girl to bits and, as I said, that’s not always the case in this Court and it’s a very good start for X.  It augurs well for her future. 

30. In terms of their attitudes to parenting and their parenting responsibilities, as I said before – and I won’t go into this in any detail now - but, as I said, it is not possible to be an abusive partner and a good parent at the same time and both parties would need to look at their responsibilities to X in terms of making sure that she feels safe and that neither her mother nor her father is being subjected to untoward behaviour from the other parent.

31. The issue of family violence and the issue of whether there are family violence orders are two of the particular factors I need to consider and I won’t go into that any further, I think I’ve said enough about that but there are, I note, mutual intervention orders in place and that both parties have been charged with and convicted of breaches of those orders.  That does not augur well for X’s future.

32. These parties must separate their feelings of antagonism towards each other, as separated partners, from their responsibilities to X, as parents.  They are different things, and, as I’ve explained to the parties, they will be X’s parents for the rest of their lives, so this antagonism between them must be addressed in some way.

33. I’m also able under the Act to consider just about anything else that I think is relevant, although I think I’ve canvassed, pretty much, what is relevant. 

34. When I look at all of those things, when I look at the need to move the matter on, the fact that, eventually, the matter must leave the contact centre my concern at the moment is that what the law says is that my primary considerations must be to balance the meaningfulness of a relationship between the child and both parents and the need to protect a child from psychological or physical harm;  from being subjected to exposed to abuse, neglect or family violence. 

35. Under the Family Law Act, exposing a child to family violence is an act of child abuse in itself. So to say that, “I’ve never hit a child” – and I’m not saying this is the case here, but to say, “I’ve never hit a child”, or, “I’ve never yelled at a child, therefore I’ve never abused a child”, while, at the same time having exposed that child to family violence is a contradiction in terms. The child has been abused, if the child has been exposed to family violence. Most parents don’t understand that and they think that if the child isn’t being obviously abused then is not being abused. Not the case under the Family Law Act.

36. When those two things come into conflict, when the balance is between the benefit to a child of having a meaningful relationship with both parents and the need to protect a child, the law is very clear that I must take the need to protect a child as being the most important thing. 

37. The term “meaningful” has been discussed many times in this Court and in the Family Court.  It means all the things that we imagine it means.  It means a relationship that’s important, that’s significant, that’s advantageous to a child. 

38. All of those things have been discussed in many cases but there’s a feature of what “meaningfulness” means that was discussed by his Honour Justice Cronin in the case of Tate & Densmore, where he says that for a relationship between a parent and child to be meaningful it also needs to be a relationship that provides a role model for a child, that teaches the child what it is to be a citizen in our society, that teaches a child what it is to be a parent in our society and if all a child sees in conflict between parents, then that’s what they believe parenting is about and if that’s what they grow up with, that’s what their own relationships will be like because it’s all they know.

39. So for a relationship to be meaningful it must be one which creates a positive role model for the children but I need to take the need to protect a child as my absolute paramount consideration under section 60C(2A).  And when I do that and when I consider what Dr S has said about the father’s lack of insight, I’m going to make the following Orders.  

40. I know that’s not what Mr Magee wants and what I can say to him is to keep in mind what I said about the far horizon;  to keep in mind that where we’re aiming for is, as I said – and I noted that you became quite emotional when I talked about the possibility of you walking your daughter down the aisle – that we’re looking at things like that.  We’re looking at your relationship with her children.  So I would ask you to keep your eye on the far horizon because I need to make sure that your relationship with her is based on a very solid foundation. 

41. So if all is well next time and the reports from the contact centre are similar and we can be certain that your father is a suitable supervisor – and I’m not saying at the moment that I’m finding that he is not, I just don’t know – that I would expect that matters would move forward at that time but I would urge both of you to think about your relationship with each other as being the major risk to this little girl.  That is the major risk she suffers and that’s all I can do.  I can’t change you, all I can do is try to protect this little girl and make sure that she grows up in the most positive atmosphere possible.  So those are the orders of the Court and I can excuse you.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Small.

Date: 26 September 2016