Maxfield and Eliot

[2018] FamCA 866

FAMILY COURT OF AUSTRALIA

MAXFIELD & ELIOT [2018] FamCA 866

FAMILY LAW – CHILDREN – final hearing – interim orders made for progression of time supervised by paternal grandmother – order for child to attend counselling – best interests decision

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Maxfield

RESPONDENT: Mr Eliot

FILE NUMBER: BRC 2474 of 2013

DATE DELIVERED: 4 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 4 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Cameron

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr R Slade-Jones

INDEPENDENT CHILDREN’S LAWYER:

Mr I Field

Aylward Game Solicitors

UPON THE UNDERTAKING OF THE PATERNAL GRANDMOTHER MS U:

A.     That at all times she shall closely supervise the time the child, B (born … 2010) spends with the father.

B.     That at all times she shall carry a mobile phone capable of being used.

C.     That she shall inform the Independent children’s Lawyer at the earliest opportunity should she become aware that the father has been arrested for, or charged with, any criminal offence in the Commonwealth of Australia.

D.    That she shall inform the mother immediately and the Independent children’s Lawyer as soon as possible should the father fail to follow a reasonable instruction from her in her discharge of her obligations under this Undertaking or these Orders.

Orders

1. That the child live with the mother.

Parental responsibility

1. That the parents shall shave equal shared parental responsibility for the child.

2. That subject to Order 4 hereof, the child shall spend time with the father at all times agreed between the parents in writing and otherwise as follows:

   (a)For one (1) occasion on a Saturday from 10.00am until 12.00pm;

   (b)For one (1) occasion on the next alternate Saturday from 10.00am until 1.00pm;

   (c)For four (4) occasions, on each alternate Saturday from 10.00am until 2.00pm;

   (d)For four (4) occasions, on each alternate Saturday from 10.00am until 4.00pm;

   (e)Thereafter, on each alternate Saturday from 10.00am until 5.00pm; and

   (f)Subject to availability for changeover, a visit shall occur on the weekend of 22/23 December 2018; and the next visit shall occur the next alternate weekend the contact centre is available.

3. That it is a condition of Order 3 hereof that:

   (a)all time set out in this Order shall be closely supervised at all times by [Ms U] (“the paternal grandmother”) to include being physically present at all times and in line of sight of the child at all times, and within earshot of the father at all times;

   (b)only the father, the paternal grandmother, the paternal great-grandmother and [Mr V] may be present during the time set out in Order 3(a), (b) and (c) hereof.

   (c)the paternal grandmother files with the Court a binding Undertaking in the following terms:

   (i)At all times to closely supervise the time the child spends with the father;

   (ii)At all times she shall carry a mobile phone capable of being used;

   (iii)That she shall inform the Independent children's Lawyer at her earliest opportunity should she become aware that the father has been be arrested for, or charged with, any criminal offence in the Commonwealth of Australia; and

   (iv)To inform the mother immediately and the Independent children’s as soon as possible should the father fail to follow a reasonable instruction from her in her discharge of her obligations under this undertaking or these Order.

   (d)a declaration shall be written on the face of the said undertaking to the effect that the paternal grandmother understands the terms of these Orders (which shall be attached to her undertaking).

4. That for the purposes of Order 4 hereof, a copy of this Order shall be provided to the paternal grandmother by the Independent children’s Lawyer.

5. That all changeovers shall take place at the D Children’s Contact Centre (“the Centre”), and the Centre’s costs shall be shared equally by the parents and paid upon demand by the Centre.

6. That until the filing of the undertaking set out herein or upon the paternal grandmother choosing not to supervise or becoming unable to supervise pursuant to these Orders, the child’s time with the father shall be supervised at the Centre no more frequently than alternate Saturdays or Sundays and for as long as the Centre can accommodate on those days.

7. That not before the time set out in Order 3(d) commences, the father shall be at liberty to attend with the paternal grandmother and great grandmother school events normally attended by parents, subject to the following conditions:

   (a)The father shall provide one (1) weeks’ notice by SMS to the mother of his intention to attend;

   (b)The father shall at all times be closely supervised by the paternal grandmother;

   (c)The father shall not approach the mother or any other members of her family who might be present;

   (d)The father shall not remove the child from the event venue; and

   (e)The father may only attend the event between the scheduled commencement and conclusion times.

Communication

1. That the child shall communicate with the father by telephone each Monday at 4.30pm and each Thursday at 6.30pm, or such time as otherwise agreed between the parents by SMS text message, with the telephone call to be initiated by the father to a phone number provided by the mother; and the mother to facilitate the call, including but not limited to using her best endeavours to ensure that the child speaks with the father in a room that is free from distraction and excessive noise, as is reasonably possible.

2. That in addition to communication provided for at Order 9 hereof, the father be at liberty to communicate with the child by telephone on the following special occasions:

   (a)On Easter Sunday at 9.00am;

   (b)On Christmas Day at 9.00am;

   (c)On the child’s birthday at 4.00pm if a school day and at 9.00am if a non-school day; and

   (d)On Father’s Day at 9.00am.

3. That when communicating with the child the father shall ensure that his communication is child focussed, including but not limited to not swearing and not using derogatory terms in relation to the mother, her family or friends and the father shall not initiate a telephone call when he is attending a poker game.

4. That the mother shall facilitate any reasonable request by the child to communicate with the father by telephone.

5. That neither parent shall record the telephone communication between the child and the other parent.

6. That the mother shall ensure that the child telephones the father on the father’s birthday and the father be at liberty to telephone the child on the child’s birthday.

7. That the child shall be at liberty to telephone the father and the paternal grandmother at any reasonable time.

Injunctions

1. That the father be restrained and an injunction issue restraining the father from allowing Ms E to have any contact, whether direct or indirect, with the child.

Specific issues

1. That before the commencement of the first occasion of time set out herein, the mother shall provide to the father (by email) a list of the child’s preferred foods and the foods the child is likely to reject.

2. That neither parent shall denigrate the other, their family or friends in the presence or hearing of the child or leave the child in the presence of any person who does so.

3. That this Order be authority for the father to obtain from the child’s school, at his own cost, all information and documentation usually provided to parents.

4. That the mother shall keep the father advised of the child’s treating medical practitioners and other health professionals.

5. That this Order be authority for the father to obtain from the child’s treating doctor or health professional, at his own cost, all information and documentation normally provided to parents.

6. That each parent shall immediately notify the other by SMS text message or telephone of any serious illness or medical emergency pertaining to the child.

7. That each parent shall advise the other within forty eight (48) hours of any change to their mobile telephone number and within seven (7) days of any change of residential address.

8. That the mother shall attend to completion at her earliest convenience a recognised parenting course held by a reputable service provider.

9. That if the child misses two (2) consecutive days of school, the mother shall in a timely manner inform by the father by SMS text message of the reason for the failure to attend.

Counselling for the child

1. That the mother shall arrange for the child to be counselled on the following terms:

   (a)On a mental health plan if possible however should a mental health plan not be available then the mother shall arrange the same counselling with a private counsellor;

   (b)The mother shall inform the father and the Independent Children’s Lawyer of the counsellor’s details;

   (c)Should the mother be unable to identify a counsellor within a reasonable period then the Independent Children’s Lawyer shall identify such a counsellor and inform the mother of same and the parents shall be bound by his decision; and

   (d)The parents shall share the cost of counselling equally between them.

2. That for the purpose of Order 26 hereof, pursuant to s.121 of the Family Law Act 1975, the Independent Children’s Lawyer be granted leave and shall provide to the child’s counsellor a copy of the following documents:

   (a)the family report prepared by Ms F dated 2 August 2017;

   (b)these Orders; and

   (c)the Reasons for Judgment delivered 4 October 2018.

3. That the father shall inform the Independent Children’s Lawyer at his earliest opportunity should he be arrested for, or charged with, any criminal offence in the Commonwealth of Australia.

4. That the Independent Children’s Lawyer be at liberty to apply upon the giving of no less than three (3) business days’ notice to have the proceedings relisted urgently.

5. That these proceedings be adjourned for Case Management Hearing at 9.30am on 4 April 2019 in the Family Court of Australia at Brisbane.

6. That no later than seven (7) days prior to the next Court date the parties shall file and serve a minute of final orders sought.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxfield & Eliot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2474 of 2013

Ms Maxfield

Applicant

And

Mr Eliot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. These Reasons deal with matters still in dispute arising from a parenting hearing which has now taken three days, and where I have been asked to now make some interim orders.

2. With respect to the three issues still in contention, I propose to order how the visits commence.  The first visit will be two hours.  The third visit will be three hours, and then paragraph (1)(a) of the draft order will take place.  The reason for that is to give the child an opportunity to adjust – not so much the length of time which I do not think that is such an issue, but to a different environment.  I take on board what Ms F said based on what she saw back in 2017 that the child might be getting some level of comfort from a familiar environment.  I do not propose to make order (2)(a)(ii), namely “…to take place in public places, not in any private residential address, hotel room, or rental apartment.”

3. The evidence would suggest that for Ms U the most convenient location for her, at least to supervise the child, might be the home that she has had for some four or five years.  There is nothing in the evidence to suggest that Suburb W in general or that home in particular presents any particular risks other than it was, it seems, the location of what has been called the “spaghetti incident”, although it is a bit uncertain when that occurred.  Even Ms F could not help me, opining that it was probably in the period of time that the child was in the father’s care – that is, about May 2015.  However she also indicated that at that time it could well have been that the child’s emotions were somewhat exacerbated by the fact that he was not seeing his mother at the time.  So I do not think I can be comfortable it is about the location.  If it was at that time, maybe the surrounding circumstances all contributed to his apparent refusal to want to eat spaghetti.

4. So apart from that as Ms F identified, it is important for this boy, who is now approaching eight years of age, to have an opportunity to explore different ways of developing his relationship with his father.  Often young children of this age do it by eating together, and I see that most of the time involves lunchtime which is a sensible things, but he is an active boy, the mother says.  He likes playing sport or kicking things.  I am sure there are other activities in and around the Suburb W area in the parks that the father could and would want to experience, but he is also, I think, entitled to go back to the Suburb W home and share a meal, maybe cooked or prepared by his grandmother, in a very natural family environment.  So for those reasons I will not make the order (2)(a)(ii), taking on board that the parents apparently agree to it.  I just do not think it is appropriate.  I think it is limiting.

5. I would ask the Independent Children’s Lawyer to incorporate the other issues that have fallen from exchanges with the Bench.  I do not propose to make a prescribed order for the grandmother to be able to ring the child.  It seems to me that without any prescription at all there has been a flow of communication between the grandmother and the mother to speak to the child.  There is a provision being provided at paragraph 9 for the child to telephone the father and/or the grandmother when he wishes to do so.  Orders like that are the best orders if people are prepared to support them.  Whether the mother can, time will maybe tell, but sometimes children do not have a lot to say, and I am not prepared to make an order in respect of a non-party that could be the subject of contravention proceedings if it did not occur.  That would, I think, be a nonsense.

6. I disagree with the unrepresented father’s position in relation to the need for the child to have counselling.  I explained to him that I understand his concern that he has been highly criticised, not only during the course of these proceedings but during the trial and felt that he was probably having to defend himself at every stage.  The father feels that if a person who is engaged as a counsellor for the child is in a position where there is some negative perception of the father, that the counsellor might adopt that without any consideration of alternate propositions.  I do not accept a suitable counsellor retained through a mental health plan or otherwise – and I said “otherwise” because if the parents are not able to get a mental health plan, I still require this child to attend counselling.

7. After two days of evidence in this matter, the parties have offered to the court, generally with consent, a proposition to move forward with the time that the father spends with his son, B (born in 2010) into a different regime.  It is fair to say that the order proposed, which is for increasing amounts of time away from a contact centre but in the presence at all times and closely monitored by the paternal grandmother, Ms U, was a proposition identified by the Court at the end of the evidence yesterday.

8. The Court has not heard final submissions in respect to the seminal issue in this case, which was whether the father presents as an unacceptable risk of harm to the child, B. Nonetheless the Court, in considering the evidence before it in respect of that, an issue which draws its relevance from Section 60CC(2)(b) of the Family Law Act 1975, as the most significant primary consideration, makes these observations.

9. I am satisfied on the evidence that the relationship between the mother and the father in this case before their separation in November 2012 was problematic.  The fact that the parties soon thereafter had involvement with the Department of Child Safety, Youth and Women and a number of domestic violence proceedings and contravention applications was, to some degree, sought to be brought to an end by Orders made by Judge Howard on 4 February 2014, which was initially for supervised time and then ultimately, after the first family report by Ms F and a psychiatric report of Dr Y (which I have not seen) by final consent orders in February 2015 which provided for unsupervised shared care of the child, four nights a week with the mother and three nights a week with the father.

10. At the time those Orders were made on 25 February 2015, the child had just, some three months earlier, turned four years of age.  Sadly, that Order did not last long.  There was an incident at the Suburb Z train station at a changeover on 17 May 2015 which, in my view, does neither the mother or father any credit.  It involved a third party, the father of three children of the mother, Mr P, who has given no evidence to this Court and who has not been, of course, therefore cross-examined.  Nonetheless, as a result of that incident, the father decided he would retain B contrary to the Orders of the Court.  In my view, his actions were inappropriate, disproportionate, and likely to have caused the child distress.

11. The mother, almost immediately, brought an application to the Federal Circuit Court on 15 April 2015.  Sadly, that application did not come before the Court until 12 October.  But earlier than that date, on or about 28 July 2015, the maternal grandmother was able to remove the child from the paternal grandmother’s care at, I think, a bowling alley on 28 July 2015.

12. The risk in this case has been that the child therefore has been, at least since May 2015, the subject of significant tug-of-warring.  It has, it seems to me, involved at different times and in different ways extended family.  In December 2015 the mother first gave evidence about disclosures made by B of alleged inappropriate sexual conduct.  Those allegations caused Judge Howard to transfer this matter to the Family Court of Australia.  I find it somewhat curious that the mother and her mother continue to give evidence about those disclosures even though at the start of this case experienced Counsel for the mother made it clear that no finding in respect of such issues was being sought.  There is no evidence that those disclosures, to the extent they were investigated by departmental officers, resulted in any substantiation.  It would be open to the Court to find that the continued repeating of such allegations against the father without more evidence was provocative and unsettling.  In review of the position taken by the mother at the beginning of the trial, those remarks in the Affidavit should not have been made if they were not being pressed.

13. Nonetheless it seems clear to me, either as a result of those disclosures, or because of the history of the father’s past behaviour which involves, from his criminal record before the Court, charges and convictions of offences associated with violence, or because of the father’s failure to comply – unreasonably, in my view – with the Orders previously made, by holding over the child, since October 2015 the child has maintained supervised visits with the father at a contact centre for about an hour and a half every fortnight.

1. I have made the observation on more than one occasion that if there were issues in this case about risk of the father to this child then, in an ideal process, they ought to have been determined much earlier than the matter being put before me this week.  It does seem, however, that at least the supervised time has allowed regular time of a positive nature to occur between the father and B, although limited to the surroundings of the contact centre, since the child was approximately five years of age.  He is now approaching eight years of age.

2. There is no evidence before the Court that any of the visits at the contact centre were troublesome.  However, whilst these allegations remained unverified, unsubstantiated, and undetermined by any Court, there were other events occurring involving the father that were causing difficulties.  In particular, this relates to the injury sustained by his son, J, on or about 3 February 2017 when he was but eight weeks of age.  That incident, from the evidence of Dr K, which I have heard, and who was the subject of cross-examination, resulted in this little baby having very significant injuries that, Dr K says, could only have been caused by unreasonable force.

3. Notwithstanding, it seems, the response by the father to police being interviewed, no charges have been laid against any person.  The cross-examination about the incident undertaken both by Counsel for the Independent Children’s Lawyer, Mr Slade-Jones, and Mr Cameron could not, in my view, at this stage involve any finding that the father was responsible for the abuse of J.  However it must be said at the same time it could not be said that he could be totally excluded as he was in the vicinity of the child for some of this period.

4. It became apparent in the cross-examination of Dr K that although the matters had laid dormant since effectively February 2017, as recently as June this year Dr K had been invited by the police to provide a “statement of witness” which is, I think, genuinely accepted as a precursor to the preparation of a brief to prosecuting authorities as to whether charges ought be brought against a person.  I am satisfied that to the extent that there has been an opportunity to make investigations about the state of those proceedings, those investigations have not provided any further information that can be provided of assistance to the Court at this stage.

5. Clearly, that very troubling injuries involving this young child was, as the reasons of Berman J on 27 March 2017 made clear, unresolved and troubling such that any application by the father not unreasonably brought then to vary the orders so as to begin unsupervised time, were dismissed by his Honour.  In that respect, it should be acknowledged that some 12 months earlier in a family report released on 10 March 2016, Ms F indicated on the evidence at that stage, which, of course, included the “spaghetti incident” and the holding over behaviour of the father, that in the absence of other difficulties after six months of further supervised time the Court should consider unsupervised time.

6. The unrepresented father, in my view, reading such a report, might have taken the view that it was reasonable to expect unsupervised time with B in the face of his continued and persistent denials of any recent misbehaviour that could affect the child might have occurred towards the end of 2016.  As I have indicated, it did not.  I regard it as common sense to expect for this father that such a failure to at least move to some form of different time was a matter of significant frustration likely to be unsettling to his emotional presentation.  On more than one occasion during this trial I have got the very distinct impression he believes that he has been treated unfairly.  I do not accept that to be the case, and have continued to try to remind him that the test is not about fairness or unfairness to parents but the best interests of children.

7. Nonetheless, the matter having continued to float its way through the system, a further report arising from interviews in May 2017 by Ms F, the third in the journey of litigation, was released on 2 August 2017 – now well over 12 months ago.  That report preceded the birth of a second child to the relationship of the father and his then partner, Ms E, namely X, on 8 November 2017.

8. It is clear that the Department of Child Safety, Youth and Women had some concerns about the parenting capacity or risks associated with the care of J and X in the care of the father and/or Ms E because child welfare proceedings, which were commenced, resulted in a two year child welfare order being made in early 2018 for a period of two years.  Importantly for this case, the father says he consented to such an order.  He says he did so on legal advice.  Legal professional privilege would prevent further explanation of why that was the case.  Nonetheless I take into account that the Department has convinced another Court that children who would otherwise be in the care, at least unsupervised to some degree, of the father, ought be only spending supervised time with him.  I also take into account that J is not yet two years of age and young X is yet to have his first birthday.  They are much younger children than B.

9. In this mix there was an interview in relation to B with police – what is called commonly a section 93A interview.  I have not seen the interview.  Counsel who had seen it said it would not assist me.  I am at odds to understand why, in March 2018, such an interview was undertaken by police.  It remains, again, one of the mysteries of this case.

10. The father’s relationship with Ms E does not appear to be a particularly functional or happy one.  As a result of an incident on 1 July 2018 – and I only have the father’s version of this – he and Ms E thereafter separated.  There is some suggestion from the paternal grandmother, whose oral testimony I have seen, that it involved a return of a ring, and there is some suggestion that the father and Ms E had either committed to a marriage earlier and he wanted his ring back.  Ms E’s evidence could have been helpful in this case.  It may well be if this matter requires further judicial investigation that Ms E’s whereabouts can be ascertained and if thought appropriate, she could be brought to the Court to give evidence.  I accept that the Independent Children’s Lawyer has done their best to identify where Ms E is and to attempt to bring her to the Court to give evidence.

11. I am satisfied on a number of bases during the course of this trial that Ms E no longer thinks kindly of the father and may well be providing the mother in this case with information.  The clearest example of that was a document which was marked for identification, but has not been identified by anyone who took the document, of a bruising and/or swelling to the head of young L taken sometime earlier.  That could only have come from Ms E, it seems, and was so acknowledged by Counsel for the mother.  There are some aspects of that relationship and the capacity of someone like Ms E to move from giving evidence under oath for one person and then different evidence under oath for a different person which are, of course, troubling.

12. I should mention that there is an issue that has also arisen in relation to some head injuries to a child L, a child of Ms E who was born on 31 December 2012.  These events were said to have occurred on or about 15 December 2014 and 26 December 2014.  I am not in a position to make any findings for lack of evidence about that, but note again that although there is some concerns that the injuries to L might have been inflicted by someone inappropriately, no charges have been laid in respect of that incident.

13. Both the mother and father have, within the last two months, sought and received temporary Domestic Violence Orders against each other.  The mother said that the temporary Domestic Violence Order she sought related to some text messaging of the father.  I have seen those text messages.  They are inappropriate and aggressive, and should never have been sent.  The father also has a temporary Domestic Violence Order.  To the extent that any final orders have not yet been made, that issue will be played out in the state Magistrate’s Court.  I am, however, sufficiently concerned about the existence and ongoing effect of the dynamics between these parties that any orders I make should, at this stage, minimise the prospect of these parties coming into direct contact with each other.

14. Let me make some brief observations about the parents because it is the parents of B who take on the responsibility of his care, either supervised or otherwise.  The mother is 28 years of age.  Apart from B, she has three other children in her care:  Q, who was born in 2014, R, born in 2015, and AA, born in 2017.  Those children are the result of a relationship that has now broken down and, again, with some elements of family violence with a man called Mr P.  It seems that Mr P was a person who was also involved in the unsavoury incident between these parents at the Suburb Z train station on 17 May 2015.  I have no evidence from him.

15. However it is clear to me that the mother’s responsibilities as a parent are onerous.  Although she has some support from her own mother, who gave evidence but was not required for cross-examination, it is not for the faint-hearted to look after four children of these tender ages.  There is no evidence that she is doing other than an excellent job with these children.  So much so that by consent the children living with the mother was agreed to by the father and a final order in that respect made in June 2018.  However there is a concern expressed by the father as to whether the mother has attempted to minimise his relationship with B or otherwise damage it.  I am not satisfied that is the case.

16. I am satisfied that there have been such levels of conflict and aggression between these parents probably involving other young parents at different times – in that, I refer to Ms E and Mr P – that the mother has felt quite unsettled in dealing with the father in any way.  This is even before the events of their own relationship which seems to have had some difficulties, and they have also been affected by use of drugs from time to time.  The mother, though, at 28 has taken on the responsibilities of a parent with great gusto and I think with some degree of credit to her.

17. It is also, I think, a matter worthy of note that even though the father’s time with B has been limited to about one and a half hours every fortnight, there is nothing in the evidence to suggest that the mother has been demonising the father, or saying negative things about the father to B, such that his relationship with his father has been damaged other than by the restriction in time.  Had the mother wished to take such an approach, she has had more than sufficient opportunity to do so.  For those reasons, on the evidence I have heard to date, I would find that the mother does, perhaps with a degree of reluctance, acknowledge the importance to B of a relationship with his father provided it is safe.

18. In respect of the father, he now works as a person who manages poker games.  I have observed him at the bar table, and I have observed him in the witness box.  I have found some of his demeanour in this court very controlled.  He is probably a very good poker player, as he said he is.  He showed an absence of really any emotion at any stage, even when Dr K, poignantly in my view, was giving evidence about serious injuries to his son J.  Now, I do not wish to draw a conclusion that the father’s demeanour in court, which may work very well at the poker table, is a reflection of some uncaring attitude, and I make no such view.  It may be, consistent with what he says, he has developed a capacity to control his emotions.  It may be that he did learn something from the 15 week course he undertook in H Town about which he gave evidence.  I really cannot know.

19. I was, of course, as Mr Cameron indicated, concerned that notwithstanding this long history the father still had the energy and thought it was appropriate to send such inappropriate emails to the mother recently.  But I do put that within some context of what I think is a reasonable frustration with the process, and in the face of his continued denials, and in the absence of any convictions for any other issues relating to the injuries to L and/or J.  He believes it has been unfair that he cannot progress to unsupervised time with his child.  I do not know what the psychiatric report of 2014 of Dr Y says.  It was not put before me.  I can only assume if there were some issues arising from that, I would have been told, at least by the Independent Children’s Lawyer.

20. With that history and with those concerns identified, I am persuaded that it is in the best interests of B, but in a cautious way with some conditions, to move from the contact centre to a more natural environment.  It is for those reasons that I will not make an order that is restrictive as the first draft handed to me today suggested.  I do agree with the mother that some introduction into a different style and nature of visitation may make it easy for B, and I do not see why we would put at risk making it easier for B by forcing him into a regime more quickly than he may cope with.  For those reasons, as I have already indicated we will start with a two hour visit; a three hour visit, and then move into what seems to be the agreed visits.

21. I accept that the father would prefer that there be no requirement of his mother to supervise his time.  I accept that he sees that still as, if you like, some sort of “black mark” on his character.  However it is not only the uncertainties about the situation with J but also allowing safely a different environment to be experienced that persuades me at this stage with this long history of non-problematic supervised time, to progress to a very natural environment.  To a large degree B would not know, nor does he need to know, that his grandmother has got some supervisory role.  He may regard it as a perfectly natural thing that his grandmother, who clearly loves him and wants a relationship with him, wants to spend time with him as well.  I think it is a natural environment that, on the evidence, B both sought, as the reporter Ms F indicated as I referred to in my discussion with her yesterday, and which is both age appropriate and in his best interests at this stage.

22. There are still some uncertainties about whether any actions in relation to J will take place and whether that may or may not affect the father.  There is, of course, always the risk by adjourning this matter for a period – which I will make it six months from now – that other events could occur that might either challenge my initial findings about the mother’s supportive relationship between B and the father or the child suffering some most likely psychological risk.  There is, I accept, always a risk of these matters with this history, but I am prepared, in the circumstances, to balance that risk against the benefit to the child identified as a need under s.60CC(2)(a) of having the opportunity to have a meaningful relationship with his father.

23. I believe it is important that he have counselling.  It is clear from the evidence of Ms F yesterday that she was surprised that counselling had not continued.  She, in fact, anticipated it would continue and that there would be evidence from, she thought, Dr BB in relation to that counselling.  The evidence is that Dr BB was retained by the mother and there was one visit.  There were further visits with another counsellor.  No evidence from any counselling that was undertaken with B has been produced to the Court.

24. I propose to make an order for counselling to occur.  If a child’s general practitioner, with the benefit of these Reasons, is persuaded clinically that it is in his best interests he have counselling then he will, no doubt, be entitled to prescribe a mental health plan which will attract some Medicare funding.  If he is not, I still expect this child to undertake counselling, and I require the Independent Children’s Lawyer to monitor the compliance with this order.  If counselling is not arranged quickly, I require the matter to be brought back to me.  The reason I say that is that it is clear that there may be some things, as B moves into this new regime, that he wants to talk to someone about – not in terms of disclosures specifically but in terms of just having someone who will listen to him independently of his mother and father.

25. The context for that is important, and that is why I will order that the most recent family report of Ms F and these Reasons are provided as a context.  The role of the counsellor is not to determine fact.  The role of this counsellor will be to support B moving for the first time in three years from an environment where he has seen his father, to something much more, hopefully, enjoyable and expansive.

26. I am not in a position at this stage to predict how quickly from such an order we might be able to move to either unsupervised time, overnight time, or holiday time.  I think six months for a child of this age will be a good guide.  Leaving any other issues aside, the Court will be contemplating moving to unsupervised time at some time in the future.  I think six months is a reasonable period of time for any events relating to the very sad injuries to J to come to the surface.  I think it is likely that six months of significant day time with the father will allow the mother, who is very close – as she acknowledged and I agree – to B to explain how he is enjoying that time and how he feels about it.  My sense is that if the mother was able to see that and hear that, she would gain some comfort from supporting it.

27. The father might say he has done everything the Court, Family Consultants and others have asked him to do, and I sense that he still holds a very real feeling of unjust treatment by the system.  It is not for me to explain the system to him.  He may well feel that way.  He may be entitled to feel that way, but, if he carries those feelings into his ongoing relationship with his son, he will lose the opportunity to explore the unique qualities of a relationship with his son that only he and B can provide.  I hope he can do that.  He may himself benefit from some counselling if he is struggling to separate the best interests of the child from the, at times still, negative perceptions of the mother, but that is a matter for him.

28. On that basis, notwithstanding the allegations of family violence; notwithstanding the unresolved issues relating to J and, to some degree, L; notwithstanding the existence of a child welfare order for two years made in early 2018 in respect of X and J, I am satisfied it is in the best interests of this nearly eight year old boy to move from the contact centre into a facilitated visitation regime with the support, supervision and close monitoring of the paternal grandmother, Ms U.  I propose to so order.

29. I make this further observation.  I was impressed with Ms U.  The Court gets the opportunity to see many grandparents.  In my experience, there are few grandparents who seek to see their grandchildren so they can harm them.  There is always, of course, a challenge to a grandparent if they see their own child, their own flesh and blood acting in a way that could be hurtful to a grandchild.  Not surprisingly, a mother, as by this case, might wonder about the capacity of Ms U to intervene as she said she would.  She might wonder about whether she has the capacity physically or emotionally to put at risk to some degree the supportive relationship with her son for the benefit of B.

30. The mother to have those views would not be unreasonable.  However, I have had to make my own assessment of Ms U.  I drew comfort from the fact that the mother, really, was very generous about her understanding that Ms U genuinely wants a relationship with B and cares about B, and, in my view, it would be a very low risk that this grandmother will allow her son to cause any harm, emotionally or physically, to B in her presence where she would need to be present.  I cannot, to the mother, say it could never happen.  Life is not that certain, but, in my view, it is such a low risk as to not challenge the making of the orders I propose to make today which appear at the commencement of these Reasons, and with the benefit of the undertaking to the Court, provided by the paternal grandmother.  So with those comments, I will make the orders with those variations.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 October 2018.

Associate: 

Date:  29 October 2018