Magera & Habig

[2021] FedCFamC2F 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Magera & Habig [2021] FedCFamC2F 226

File number(s):	PAC 5353 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	22 October 2021
Catchwords:	FAMILY LAW – interim parenting – best interests of children – Orders made
Legislation:	Family Law Act 1975 (Cth), ss 69ZL, 60CC, 60B, 60CA, 61DA, 65DAA, 65D
Cases cited:	Banks & Banks [2015] FamCAFC 36 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Marvel & Marvel (No 2) [2010] FamCAFC 101
Division:	Division 2 Family Law
Number of paragraphs:	81
Date of last submission/s:	17 August 2021
Date of hearing:	17 August 2021
Place:	Parramatta
Solicitor for the Applicant:	Ms Barnsley
Counsel for the Respondent:	Ms Giocomo of Counsel
Solicitor for the Independent Children's Lawyer:	Ms Newlands

ORDERS

PAC 5353 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MAGERA

Applicant

AND:

MS HABIG

Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	22 OCTOBER 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.That the Mother have sole parental responsibility for the child X born in 2017.

2.That the child live with the Mother.

3.That the child spend no time with the Father.

4.That within 14 days of the date of these Orders, the Mother engage with a clinical psychologist and provide to that psychologist a copy of the Child Dispute Memorandum to Court dated 6 July 2021 and provide details of her first appointment and the name and address of the clinician to the Independent Children’s Lawyer and the Father’s solicitor as soon as practicable.

5.That a single expert report or family report be prepared.

6.The proceedings are adjourned to 28 October 2021 at 9:30am for mention.

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 Magera & Habig has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

INTRODUCTION

1. These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).

2. This Interim Hearing relates to the child, X, born in 2017.

   MATERIAL RELIED UPON

3. The Father relied upon his Affidavit filed 13 August 2021, Initiating Application and Notice of Child Abuse filed 8 October 2020, Child Dispute Conference Memorandum dated 6 July 2021, and his Case Outline filed 16 August 2021.

4. The Mother relied upon her Response filed 29 November 2020, Affidavit filed 29 November 2020, ICL tender bundle, Child Dispute Conference Memorandum dated 6 July 2021, and her Case Outline filed 16 August 2021.

5. The ICL relied upon her Case Outline filed 11 August 2021, Child Dispute Conference Memorandum dated 6 July 2021 (Exhibit A), and ICL tender bundle.

   PROPOSALS

6. The Father sought interim Orders, inter alia, that the child live with the Mother; that the child spend time with the Father, supervised by Connecting Families each alternate Friday from 2PM to 5 PM; that such supervised time take place at the paternal grandfather’s residence, and in the alternative, the Mother is to propose 3 public locations for supervised time to take place and the Father is to nominate 1 location; that the Father enrol in a parenting after separation course; and that the parties, separately, engage with a clinical psychologist.

7. The ICL sought interim Orders, inter alia, that the Mother have sole parental responsibility for the child, that the child live with the Mother, that the Mother engage with a clinical psychologist, and that the child spend no time with the Father.

8. The Mother supported the ICL’s proposed Orders.

   Evidence including the parties’ respective allegations

9. The Mother is aged 42 years. The Father is aged 29 years, being born in 1992.

10. The Mother has a child from a prior relationship, Mr B, born in 1998, aged 23 years.

11. The Father alleges that the parties commenced a relationship in 2011. At this time, the Father was aged 18 years and Mr B was aged 13 years. At this time the Father was starting studying at the C University. The Father moved in with the Mother, the maternal grandmother, the Mother’s sister and Mr B. The Father alleges that initially he formed a bond with Mr B and would play video games, play basketball, and hangout with him.

12. The Father alleges that the parties separated in about March 2019.

13. The Father acknowledges that the parties would occasionally argue in front of the child.

14. The Father alleges that on 12 April 2020 the Mother informed him that she was in a new relationship and that that caused the Father to become overly emotional and upset. He alleges that as a result, he ripped his shirt and pushed the fence in the parties’ front yard. In relation to this incident, the Mother alleges that she felt very scared and intimidated. He alleges that at the end of May 2020, he was served with an application for an ADVO naming the Mother as the person in need of protection. He alleges that on 2 September 2020, in the Local Court, he consented to the ADVO application on a without admissions basis for two years in the mandatory conditions only.

15. The Father alleges that in late July 2020, he was interviewed by the police in relation to a number of allegations put to him around complaints of a sexual assault involving Mr B and himself between 1 August 2016 and 1 December 2016 (and in this context, the Father alleges that these allegations were prior to the child’s birth and that no further allegations were raised after the child was born). He alleges his understanding that the Mother and Mr B made complaints in statements to the police in about May 2020. In this context, the Mother alleges that in early May 2020, Mr B and the Mother were talking about the things the Father had done to him, and how Mr B was allegedly worried about the Father’s increasing volatile behaviour and anger, and that they agreed that it was time to report the incidents (between the Father and Mr B), to the police. The Father alleges that police charges were withdrawn in late November 2020.

16. The Father alleges that in about November 2016, the Mother became aware of an intimate relationship between Mr B and the Father. The Father alleges that at this time the Mother learned that he was struggling with his sexuality, and he alleges that he informed the Mother that it would not happen again. He alleges that the parties continued to try and reconcile their relationship. In this context, the Father alleges that following separation in March 2019 despite the police charge allegations, he continued to spend time with the child as agreed between the parties and that throughout this period the parties were intimate with each other.

17. The Father alleges that the parties remained living under the one roof, following separation in March 2019 until August 2019.

18. The Father alleges that by the end of 2019 he was not spending as much time with the Mother and the child as usual and his contact with the Mother began to lessen. The Father alleges that between Easter and about mid-June 2020, he was only afforded FaceTime contact with the child about once a week or fortnight. The Father alleges that, with the Mother’s consent, on about 25 June 2020 he spent about three hours with the child at the Mother’s residence. The Father alleges that he has not spent any time with the child since this date.

19. The Father alleges that he currently lives in a four bedroom home with the paternal grandfather and his stepmother. He alleges that the child also has a good relationship with the paternal grandfather. The Father alleges that his relationship with the paternal grandfather is significantly better since his separation with the Mother.

20. The Mother alleges that in about early 2010 the Father became friends with the Mother and Mr B who was then 11 years of age. She alleges that the Father and Mr B began spending a lot of time together, with the Father regularly staying at the Mother’s residence and sleeping on the floor next to the bed of Mr B. She alleges that the Father purchased gifts for Mr B.  She alleges that she began to feel nervous about the Father’s relationship with Mr B and she inquired of the Father as to his intentions with Mr B. She alleges that the Father told her that he loved Mr B “like a little brother.”

21. The Mother alleges that in January 2015 the parties had an argument. She alleges that the Father was very upset and angry and walked out to the front of the house and kicked a bin, breaking it, and punched the bonnet of his car several times causing it to dent. The Mother alleges that she was terrified of the Father’s anger and outbursts.

22. The Mother alleges that in early November 2016 she read messages exchanged between the Father and Mr B over the past few months. Certain messages referred to oral sex and the Father loving Mr B. The Mother alleges that she was shocked. She alleges she confronted the Father. She alleges she confronted Mr B who allegedly told her that the Father had told him that if Mr B told the Mother that the Mother would leave the Father, that the Mother would not understand and that the Father would kill himself. The Mother alleges that Mr B was only starting his HSC when all this happened.

23. The Mother alleges that having spoken to the Father she agreed not to end their relationship if the Father followed certain rules, including that the Father was not allowed to approach, touch or intimidate Mr B ever again and the Father agreed.

24. The Mother alleges that as the child grew older on occasion the Father helped her by feeding the child, and that the Father easily became upset and raised his voice to the child if she was not eating or if he could not settle her. In this context, the Mother alleges that on one occasion the Father yelled at the child.

25. The Mother alleges that there were occasions when her sister had witnessed when the Father would play with the child and would taunt and provoke her until she began to cry, passing it off as a joke. She alleges on another occasion when the child was falling asleep that the Father suddenly yelled in the child’s ear “Boo” causing the child to awaken immediately and break into uncontrollable tears. The Mother alleges that the Father stated it was just a joke.

26. The Mother alleges that in about February 2019 Mr B told the Mother that the Father had said to him, “you can use my car if you let me touch you.” The Mother alleges that she confronted the Father who admitted to the statement and that she immediately told the Father that they “were over.” The Mother alleges that after separation she still wanted the child to know the Father and wanted the Father and herself to co-parent. The Mother alleges that she agreed to allow the Father to come over to their home to spend time with the child. She alleges that in mid-August 2019 the Father moved out of their home. The Mother alleges that on a few occasions she agreed to allow the Father to spend time with the child at the home of the paternal grandfather.

27. The Mother alleges that in September 2019 there was an incident involving the child and the Father. The Father alleges that he was at the Mother’s residence to take the child to spend time with him. The Mother alleges that Father had arrived at her home unannounced. She alleges that the Father was physically trying to take the child out of the Mother’s arms. Later the Mother agreed for the child to spend time with the Father and the paternal grandfather.

28. The Mother alleges that in late December 2019 she agreed to go on holiday with the Father and the child to Canberra.

29. The Mother alleges that in about late May 2020, she was informed by a third party that the Father, whilst driving in 2019, was falling asleep at the wheel and swerving on the freeway.  The Mother alleges she became very worried so she decided to stop the child’s one-on-one time with the Father. She alleges that she continued to allow the child to speak with the Father by FaceTime whenever the child wanted to.

30. The Mother alleges that in early August 2020, Mr B was at her residence and had a nervous breakdown, crying and telling the Mother that he was thinking about dying and suicide.

31. The Mother alleges that she currently lives with the maternal grandmother, Mr B, and the child. She alleges that Mr B works full-time as an apprentice.

32. The Mother alleges that since separation she has sought and continues to seek advice from a psychologist to help equip and support her in making the best decisions for herself and her children.

33. In the Mother’s statement to the police dated 3 August 2020, she alleges that in about July 2013 she had an argument with the Father over Mr B because the Father became upset that Mr B was reluctant to call the Father Dad. At this time Mr B was about 15 years of age.

34. The Mother alleges that in late 2016 she found out from Mr B that the Father would take him driving and allow him to drive in exchange for allowing him to touch his genitals. The Mother alleges that Mr B had told her that the Father had told him that he believed he was gay.

    CHILD DISPUTE CONFERENCE MEMORANDUM

35. A Child Dispute Conference was held on 22 April 2021.

36. The Mother stated to the family consultant that she does not feel that the Father was safe to have the child.

37. The Father stated to the family consultant that he did not think that the arguments between the parties had an impact on the child, due to the arguments not being aggressive or violent “or anything like that.” The Father told the family consultant that he had identified that the child had been exposed to him crying during arguments (with the Mother). He stated to the family consultant that the child did not like seeing the parties upset or seeing them angry. The family consultant stated that the Father reiterated that he had experienced a lot worse as a child and that he did not believe that the child witnessing him and the Mother arguing affected the child to a great deal.

38. In an apparent reference to the alleged incident in April 2020, the family consultant stated that the Mother had told her that she had never seen that level of rage from the Father previously, and she referred to the Father allegedly pacing back and forth, ripping his jeans, punching her fence, and allegedly banging on her door and window. The Mother told the family consultant that she locked herself in the house for over 30 minutes until the Father left.

39. The Mother told the family consultant that the Father had only spent one-on-one time with the child on very small and few occasions, including prior to separation, because the Mother could not trust the Father to be safe with the child. She attributed this to incidents between the Father and Mr B and to the Father’s behaviour towards the child.

40. The family consultant stated that the Father had acknowledged that he and Mr B had engaged in sexual activity but identified that this was consensual.

41. The Mother told the family consultant that when she was pregnant with the child, she found messages between the Father and Mr B which spanned a period of months and referred to sexual activity, including oral sex and the Father sending Mr B links to pornography. The Mother told the family consultant that Mr B was about 17 or 18 years old but was still in high school at that point. The Mother stated that the Father had manipulated Mr B to not disclose, including threatening to harm himself.

42. The Mother stated to the family consultant that the Father was charged with offences relating to Mr B but that the police did not proceed due to Mr B being unable to emotionally cope with the Court proceedings.

43. The Mother stated to the family consultant her concerns that the Father would take the child away and that the Mother would never see the child again or that the Father might do something to himself and to the child to get back at her, and the Mother stated that the thought of this absolutely terrified her. The Mother stated to the family consultant that the Father had threatened to harm himself during their relationship and that there was a constant threat of suicide, including the Father allegedly conducting Internet searches about suicide and life insurance.

44. The family consultant stated that the Mother presented as highly emotional and frequently cried during interview.

45. The family consultant stated that, in regards to the impact of the sexual activity between the Father and Mr B on the Mother, the Mother had told her that “it destroyed me” and said that she went from being pregnant and thinking that her family was happy to thinking that everything was a lie. She also stated to the family consultant that she did not trust men anymore and that she did not think she could ever trust someone again with “my babies, which X is now.”

46. In paragraph 39 of the Memorandum, the family consultant stated that the Mother had identified that the incidents also had a detrimental impact on her decision-making and that she saw a psychologist in 2020. The Mother stated that she has been diagnosed with depression and anxiety. The Mother had indicated that while she was not accessing psychological support presently she may do so in the future to assist her to cope with the Court proceedings, including her fear that the Father will come and try and take the child away again. She indicated that she was already hypervigilant regarding the child because of what had already happened with Mr B but that this had increased since the proceedings commenced. The Mother said that if the child were to spend time with the Father, her anxiety would probably rise and she would be on edge waiting for the child to return safe and unharmed.

47. The family consultant stated that the Father had identified that there was mistrust between himself and the Mother and stated that he had obviously hurt Mr B emotionally and he had obviously hurt the Mother emotionally.

48. The Mother told the family consultant that there was no communication between the parties.

49. The Mother told the family consultant that, in regards to the Father, “I’ve damaged one child by trusting him, I don’t feel like I can risk my daughter in the same way.”

50. The Father told the family consultant that the child had last spent time with him around Easter 2020. The Father reported that he received no information regarding the child.

51. The family consultant stated that when the Mother was asked how she thought the child would respond spending time with the Father, she said that she did not know but that the child might be okay for very short periods of time.

52. In paragraph 52 of the Memorandum, the family consultant had stated that consideration be given to the Memorandum being released to the parties in Court due to concerns regarding the parties’ psychological functioning, particularly in relation to the impact on the Mother of the Father’s claims regarding the dynamics of the relationship between himself and Mr B.

53. The family consultant stated that whilst it was not clear, on the basis of the assessment, that the Father engaging in sexual activity with Mr B was indicative of child sexual abuse, concerns were raised regarding the dynamics of the incidents between the Father and Mr B given that the Father was likely to have assumed a parental role to Mr B during his relationship with the Mother.

1. In paragraph 55 of the Memorandum, the family consultant stated that while the child spending supervised time with the Father may mitigate any identified physical and/or sexual risks to the child related to the Father’s alleged perpetration of family violence, his presentation/psychological well-being, and/or him having engaged in sexual activity with Mr B, it was unlikely to significantly reduce any psychological risks to the child associated with exposure to cognitive distortions or associated with a detrimental impact on the Mother’s psychological well-being (e.g. an increase in anxiety) of the child spending time with the Father.

2. In paragraph 56 of the Memorandum, the family consultant stated that given the Mother’s account of the impact that the parenting proceedings were having on her psychological well-being, and that she is providing ongoing support to Mr B who is experiencing psychological difficulties, it was recommended that she engage in counselling to assist her to cope and to minimise any impact on the child associated with the Mother’s mental health. The family consultant stated that this would be of particular importance if it was determined that the child should spend time with the Father as the Mother’s reported anxieties were likely to have a detrimental impact on her ability to appropriately support the child to spend time with, and build a relationship with, the Father.

3. In paragraph 57 of the Memorandum, the family consultant had stated that if further assessment was required, it would be recommended that a Chapter 15 Report by a psychiatrist be prepared to address the identified concerns and allegations regarding each of the parties’ psychological functioning and presentation.

   LEGAL PRINCIPLES

4. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.

5. In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed 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).

   …

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

6. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

7. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.

8. Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.

9. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

10. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.

    DISCUSSION

11. The child has a meaningful relationship with the Mother, the Mother having been the child’s primary carer from birth to date, and will likely benefit from a continuance of that relationship.

12. There is a suggestion, on the material before the Court, that prior to late June 2020 when the child last spent face-to-face time with the Father, the child had a meaningful relationship with the Father. It may be that the child’s apparent meaningful relationship with the Father has dissipated to some significant extent since last spending time with him; in this regard, the Father submitted that the relationship was severed. The child may, prospectively, benefit from having a meaningful relationship with the Father if it is safe, physically and psychologically, for the child to do so.

13. In the view of the Court, at this interim stage, there is an unacceptable risk of psychological harm and/or neglect posed to the child in spending supervised time with the Father. This is because there is a real risk that the Mother will experience significant increased anxiety should the child be ordered to spend supervised time with the Father and thereby the Mother’s parenting capacity will be adversely impacted and/or the child may be exposed to adverse mental health in the Mother.  And further in this context, there is a real risk that the Mother’s ability to appropriately support the child spending time with and building a relationship with the Father may be detrimentally impacted. 

14. In the above context of unacceptable risk, the Court takes into account the contents of the family consultant’s Memorandum, the Mother’s allegations against the Father in her Affidavit, and the Mother’s statements made to the family consultant regarding the Father. The Court takes into account the concerns of the family consultant that supervised time was unlikely to significantly reduce any psychological risks to the child associated with a detrimental impact on the Mother’s psychological well-being (e.g. an increase in anxiety) of the child spending time with the Father. In particular in this context, the Court takes into account the family consultant’s concerns regarding the Mother’s psychological functioning. In this regard, the Court observes that the family consultant had observed the Mother’s presentation to be highly emotional and that the Mother had frequently cried during interview. During the interview, the Mother had told the family consultant, inter alia, that she could not trust the Father to be safe with the child; the family consultant had stated that the Mother, in this context, had attributed this to incidents between the Father and Mr B and the Father’s alleged behaviour towards the child. Further in this context, the Mother had alleged to the family consultant that not only had the Father had sexual relations with Mr B when Mr B was still in high school but that the Father had allegedly manipulated Mr B to not disclose sexual relations between himself and the Father, including the Father threatening to harm himself.

15. The Father seeks supervised time. It is relevant for the Court to consider, on the material before it, whether, if the Court was to order supervised time, there was a real prospect of subsequent unsupervised time being ordered, and which the Court now discusses.

16. The Court has significant concerns in relation to the Father’s mental health, with the Court observing that there is presently no psychiatric assessment of the Father available to be considered. In this context, the Mother has made serious allegations against the Father that during their relationship the Father had threatened to harm himself, including alleged threats of suicide. Again, the Mother alleges that the Father had manipulated Mr B into having sexual relations with him which included threats by the Father to harm himself. It is unclear whether the Father’s admitted struggles with his sexuality in 2016 have led to any mental health difficulties in the Father. The family consultant had concerns in relation to the Father’s mental health (including the Mother’s mental health) and had recommended a Chapter 15 Report by a psychiatrist be prepared “to address the identified concerns and allegations regarding each of the parties psychological functioning and presentation.”

17. The Court also has significant concerns in relation to the significant suggestion, on the material before the Court, that the Father, whilst in loco parentis to Mr B, had had sexual relations with Mr B. And again, and in this current context, the Court notes the Mother’s allegations that the Father had manipulated Mr B to have sexual relations with him. The Court observes in this context that the Father alleges that the police brought certain sexual assault charges against him in relation to his previous sexual relations with Mr B but that they were later withdrawn. In this context, the Mother alleges that the police did not proceed due to Mr B being unable to emotionally cope with the Court proceedings. The Court should state in this context that without admissions the Father agreed to certain ADVO Orders for the protection of the Mother and Mr B in about late 2020.

18. The Court has concerns in relation to the Mother’s allegations that the Father exhibited anger and antisocial behaviour in the presence of and, on occasion, towards the child.

19. Accordingly, having regard to the above concerns, including taking into account the absence of relevant material before the Court such as a full psychiatric assessment of the Father, the Court is quite unable to indicate at this interim stage whether ultimately there is a real prospect that the child will be safe in spending unsupervised time with the Father. There is force to the Mother’s submissions in this context.

20. Addressing certain submissions made by the Father, the Court has not overlooked that the Mother, following her discovery that the Father had had sexual relations with Mr B, had continued her relationship with the Father, with the Father continuing to spend time with the child. And the Court has not overlooked that post separation the Mother permitted the Father to spend time with the child. However, the Court’s above concerns remain. 

21. In this context, the Mother relates her own allegations as to why, despite initially wanting to leave the Father following her discovery, she had continued her relationship with the Father, including an alleged agreement by her with the Father not to end the relationship if the Father followed rules that she set, including that the Father was not allowed to approach, touch or intimidate Mr B ever again, which the Father agreed. Further in this context, the Mother alleges that following Mr B informing her in about February 2019 that he had asked the Father if he could use his car while the parties were away on a trip to Victoria, with the Father allegedly telling Mr B that he could use his car if he let the Father touch him, she had ended the relationship with the Father. 

22. The Court acknowledges that it appears the parties continued to live under the one roof until about August 2019 with the Father spending time with the child, and further that post August 2019 the Mother facilitated the child spending some time with the Father. Again, the Mother recites her own alleged reasons for permitting this to occur, the Father’s behaviour towards the Mother in this context, and relates her own alleged concerns in this regard. She alleges her own regret in not leaving the Father immediately when she found out that the Father had had sexual relations with Mr B.

23. The Father submits that post separation the Mother did not consistently facilitate the maintenance of the child’s relationship with the Father. However, having regard to the Mother’s allegations against the Father, including allegations made by her in relation to the Father and Mr B, and her allegations relating to the Father’s behaviour towards the child at times, there is a significant suggestion (without proceeding to make any finding of fact) that the Mother may have been seeking to act protectively towards the child in this regard.

24. The Court has not overlooked the Mother’s statements to the family consultant that the child might be okay for short periods of time being spent with the Father, however, this does not remove the Court’s above concerns in relation to, inter alia, the above discussed unacceptable risk of harm posed to the child in spending supervised time with the Father.

25. The Court should state, having taking the account the contents of the family consultant’s Memorandum for the purposes of this interim hearing, that it acknowledges that the family consultant’s Memorandum is untested at this interim stage.

26. The Court should further state that it acknowledges that the Father has made significant denials in relation to the Mother’s allegations that the sexual relations between the Father and Mr B were non-consensual, that he perpetrated any form of family violence towards the Mother and/or the child, or that he acted in any significant inappropriate manner towards the child.  Nevertheless, in accordance with legal principle, discussed previously, the Court cannot ignore a party’s allegations merely because they have been put in dispute by the other party; the Court is required to consider whether the child may be placed at any significant risk of harm even within the context of competing allegations.

27. As to parental responsibility, again, the Mother and ICL seek an Order for sole parental responsibility in relation to the child. The Father seeks no express Order in this regard, however, the Court infers that he opposes a sole parental responsibility Order. In the view of the Court, it will be in the best interests of this four year old child to make an Order for sole parental responsibility in favour of the Mother at this interim stage. There is no co-parenting relationship between the parties, nor communication between them. There is a significant lack of trust between the parties. The parties are unlikely to reach agreement in a timely fashion in relation to major long-term decisions to be made for this child without conflict. There is a real risk that if the Mother is required to reach agreement with the Father in relation to major long-term decisions for the child that she will suffer an increase in her anxiety and experience an exacerbation of her mental health issues with associated detriment to the child.

28. These Reasons have discussed the relevant considerations under section 60CC of the Act. Evaluating such discussed relevant considerations, it will be in the best interests of the child to make the following interim parenting Orders:

    1.That the Mother have sole parental responsibility for the child X born in 2017.

    2.That the child live with the Mother.

    3.That the child spend no time with the Father.

    4.That within 14 days of the date of these Orders, the Mother engage with a clinical psychologist and provide to that psychologist a copy of the Child Dispute Memorandum to Court dated 6 July 2021 and provide details of her first appointment and the name and address of the clinician to the Independent Children’s Lawyer and the Father’s solicitor as soon as practicable.

    5.That a single expert report or family report be prepared.

    6.The proceedings are adjourned to 28 October 2021 at 9:30am for mention.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

Associate:

Dated:       22 October 2021