McGowan and Hahn
[2019] FamCA 751
•17 October 2019
FAMILY COURT OF AUSTRALIA
| MCGOWAN & HAHN | [2019] FamCA 751 |
| FAMILY LAW – CHILDREN – Interim parenting proceedings – Where allegations of the child being sexually abused by the father – Where parties consent to the child living with the mother – Where discrete issue for determination is the child’s time with the father and if any whether such time is to continue to be supervised – Where discussion of applicable principles – Where overriding protective considerations – Where orders made for child’s time with the father to continue to be supervised. |
| Family Law Act 1975 (Cth) ss 60B, 60CA 60CC, 61DA, 69ZL |
| Deiter & Deiter [2011] FamCAFC 82 Goode & Goode [2006] FamCA 1346 Marvel & Marvel [2010] FamCAFC 101 McGowan & Hahn [2018] FCCA 2626 MRR v GR [2010] HCA 4 |
| APPLICANT: | Mr McGowan |
| RESPONDENT: | Ms Hahn |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Soliman |
| FILE NUMBER: | PAC | 2445 | of | 2018 |
| DATE DELIVERED: | 17 October 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 July 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Aaron Legal Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Coulton |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | Ms Hahn |
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagianis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Family Law |
Orders
That the father’s Application in a Case filed 14 May 2019 (as amended on 12 July 2019) be dismissed.
That, without admission, the mother shall at all times use the name “X McGowan” in relation to the child and is hereby retrained from using or adopting the use of any other surname for the child including the surname “Hahn-McGowan”.
That orders made 23 July 2019 continue pending further order.
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 McGowan & Hahn 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 PARRAMATTA |
FILE NUMBER: PAC 2445 of 2018
| Mr McGowan |
Applicant
And
| Ms Hahn |
Respondent
REASONS FOR JUDGMENT
The interim application for determination arises in the context of ongoing parenting proceedings between the applicant father and the respondent mother in relation to the child of their relationship X born in 2017.
Proceedings were commenced by the father by application filed 1 June 2018 in the Federal Circuit Court of Australia. In his subsequent amended application filed 21 May 2019 he sought parenting orders in relation to the child that, in summary, provided:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father; and
c)that the child spend defined time with the mother including alternate weekends half school holidays and other special occasions.
At the time when the father commenced proceedings the child was only 14 months of age.
The mother filed a Response to the father’s application on 30 August 2018 seeking orders in relation to the child, in summary, as follows:
a)that the mother have sole parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend unsupervised time with the father;
d)that neither party shall permit the child to be in the unsupervised care of the paternal grandparents;
e)that the father undergo a psychiatric assessment;
f)that the father be refrained from using any prohibited drugs or exceed doses of prescribed medication when in the presence of the child;
g)that the father be refrained from consuming alcohol in the presence of the child;
h)that the father be refrained from smoking in the presence of the child;
i)that neither parent shall permit the child to watch any PG rated movie or listen to inappropriate music with drug references sexual language and defensive words;
j)that neither party shall permit the child to use electronic devices including television or smart phones for more than 15 minutes a day;
k)that the parties be refrained from passing messages through the child to the other parent;
l)that the parties each be restrained from denigrating the other in the presence or hearing of the child and not allow other people to do so; and
m)that the parties do all acts and things to facilitate the child’s surname being changed to Hahn-McGowan.
The father’s application was first listed before the Court on 12 July 2018. As at that date the mother had not been served. The Court ordered that the parties attend family counselling at Relationships Australia, Suburb A.
Proceedings were again before the Court on 31 August 2018. On that day interim orders were made, by consent, that provided:
(1)that the child live with the mother;
(2)that the child spend time with the father each Wednesday from 4.15 pm to 6.30 pm, each Friday from 9.00 am to 3.00 pm, each Saturday from 9.00 am to 3.00 pm; and
(3)that changeovers be effected by the parties at a shopping centre at Suburb O or upon the mother notifying the father in advance at Woolworths at Suburb B.
Context
The father was born in 1983 and at interim hearing was aged 36. The father resides at Suburb C, west of Sydney where he lives alone. The father is in full-time employment.
The mother was born in 1982 and at interim hearing was aged 37. The mother resides in Suburb B in the E Region area west of Sydney. The mother is employed part-time in her family business.
The parties are about an hour drive from each other.
The parties’ relationship commenced sometime in 2015. The parties never married and it appears never commenced a full-time relationship in a de facto sense. The mother asserts that the relationship was characterised by incidents of domestic violence perpetrated on her by the father. Her hospital records from J Hospital of 27 October 2018 reveal evidence of an alleged significant assault perpetrated by the father on the mother. Otherwise, the parties have been the subject of police attention on various occasions particularly during 2018.
At the time of the child’s birth in 2017 the father continued to maintain a separate residence but spent nights at the mother’s Suburb B residence.
It appears that the parties’ relationship deteriorated and as at September 2017 the father considered the relationship to be at an end.
The father had some contact with the child during the latter months of 2017 and into early 2018 and he asserts that on occasions such time with the child was unsupervised by arrangement with the mother.
Subsequent to the father commencing proceedings, the child was not made available for time with the father until after orders were made on 31 August 2018 as set out above. The father’s time with the child thereafter was erratic and on occasions the child was not made available for time pursuant to the orders.
The difficulties in relation to the child’s time with the father precipitated the present interim application. The father is supported in his application by the paternal grandmother who lives at Suburb F on the coast about an hour south of Sydney. She is prepared to supervise the father’s time with the child.
The mother complains that in mid-December 2018 she first observed the child’s “sexualised behaviour” upon the child returning from the contact centre at Suburb A after time with the father.
The mother asserts that her direct questioning of the child has “elicited similar sexual behaviours and answers which have continued on almost a daily basis”. In December 2018 the mother asserts that the child, after a visit with the father at the contact centre, when asked “what did you do with Daddy today?” the child responded by opening her legs and patting her nappy and saying “Da-Da”. It appears that the mother made repeated requests of the child of a similar fashion with the child responding in the same way each time. The mother made similar requests of the child in the presence of others and observed the same response. Subsequently the mother was able to elicit a response from the child that she asserts indicated that the paternal grandfather had inappropriately touched the child.
Notwithstanding the child’s age the mother asserts that the child has significant linguistic and verbal skills to make the complaints alleged.
The mother asserts that others including the child’s doctor, Dr H and a child psychologist Dr G have witnessed the child’s behaviours.
The father has rejected the mother’s assertions and asserted himself and through his solicitor that the mother suffers some form of mental illness.
The mother on 29 December 2018 attended Suburb H police station to make a complaint as to the child allegations: Exh “F”. Notwithstanding she permitted the child to go with the father on unsupervised time until 3.00 pm that afternoon. The father asked of the mother “is there something I should know about?”. The mother responded “if you’ve done nothing wrong, you’ve got nothing to worry about”.
On 31 December 2018 the mother attended with the child on Dr H at Suburb H: Exh “C”. The mother outlined a significant litany of complaints in relation to the child’s observed sexual behaviours. Although making complaint to the doctor about the child crying each time she passed urine and her observations as to the general appearance of the area looking red and inflamed the mother refused to allow the doctor to appropriately examine the child. The child was prescribed antibiotics. As a consequence of the mother’s disclosures to the doctor a report was made by the doctor to the Department of Family and Community Services. The doctor contacted the sexual assault team at M Hospital and explained to the mother the processes that may then follow.
The mother attended upon Dr H again on 3 January 2019 making further complaints as to the child’s sexualised behaviour. The mother requested a referral to a paediatrician for further assessment and a referral letter was written by the GP. By this date pathology results in relation to the child having a possible urinary tract infection had not been received. On 7 January 2019 the mother was informed that the pathology results were “positive for WBC, not RBC. No growth negative for chlamydia and gonorrhoea.”
On 8 January 2019 the mother, child and the maternal grandmother attended upon Dr L consultant paediatrician. The subsequent report dated 22 January 2019 was unremarkable save for the mother’s lengthy dissertation as to her observations of the child’s sexualised behaviour.
The mother asserts that subsequently she observed the child place a mobile phone on her vagina, kiss her hand and then touch her vagina saying “Da-Da”. The mother thereafter asserts throughout January and February various observations of the child including licking the mother’s armpit, sucking a wormlike puppet while saying “Da-Da”, placing her fingers in her vagina, refusing to have her nappy on, putting her fingers in her vagina and licking them, putting her finger into her anus and fingering it around her vagina then licking it, putting a couple of fingers from both hands in her vagina and saying “hyperactively” “Da-Da”.
On 1 February 2019 the mother again attended the child’s medical practice reporting that the child’s behaviours had decreased in frequency as she had not seen the father since 29 December 2018. The mother reported that she had seen Dr L paediatrician and Dr G psychologist. She informed the doctor that as at this date the father was not aware of the nature of the mother’s allegations.
The mother asserts that on 2 February 2019 she called the father and as soon as they spoke the child touched her vagina saying “Da-Da”.
Interim Orders 22 February 2019
Subsequently, proceedings were before the Court again for interim hearing on 22 February 2019 in circumstances where the mother had made application to have the child’s time with the father suspended. The mother asserted that the child had been sexually abused by the father. On that day the Court ordered that all prior parenting orders be suspended and that the parties attend at a contact centre to assess their suitability for attendance at the centre and inclusion within the supervised contact service: McGowan & Hahn [2018] FCCA 2626. These reasons assume familiarity with that judgment. The child spent supervised time with the father at his residence commencing 8 March 2019 until the Contact Centre became available on 10 May 2019. Thereafter his time with the child has been fortnightly.
Transfer to Family Court of Australia
Otherwise, on 22 February 2019 proceedings were transferred from the Federal Circuit Court of Australia to this Court. The proceedings were promptly listed before a Registrar of this Court on 6 March 2019 for consideration as to whether the proceedings should be included in the Magellan program in this Court.
Otherwise, on 6 March 2019 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child X and an order was made under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) requiring the Department of Communities and Justice (“the Department”) to provide to the Court details of that Department’s engagement with the parties and the child.
On 14 May 2019 the father filed an Application in a Case seeking interim parenting orders and a Contravention Application. Those applications were listed before the Court on 17 June 2019.
On 17 June 2019, in circumstances where the father’s Contravention Application had not been served on the mother and where the mother had filed no Response to the father’s Application in a Case, the applications were adjourned to 23 July 2019 for judicial case management with directions as to personal service. Otherwise, by consent, an order was made appointing Dr K; forensic clinical psychologist, as single expert in the matter for the purposes of providing a report to the Court. Dr K will not see the parties for interviews until December 2019 with a report expected early in the New Year.
On 16 July 2019 a Magellan Report provided by the Department was released of the parties.
On 23 July 2019 the father’s Application in a Case and Contravention Application were before the Court for hearing. On that day orders and directions were made as follows:
Orders:
(1)Leave is granted to the parties and the Independent Children’s Lawyer to have access to all documents produced by Dr G, Psychologist (Sleeve 4) on subpoena in these proceedings.
(2)By consent the Application – Contravention filed 15 May 2019 is withdrawn and dismissed.
(3)The Application in a Case filed 12 July 2019 be regarded as an Amended Application in a Case to the Application in Case filed 14 May 2019.
By consent and pending further order, orders are made in terms of the document initialled by me and marked with the letter “A”, dated today’s date and placed on the Court file.
(4)That each of the parents be and are hereby restrained from:
(a)Denigrating the other parent or any member of the other parent’s family to or within the hearing of the child X;
(b)Discussing these proceedings or any allegation made in the proceedings with X or within her presence or hearing;
(c)Consuming or being under the influence of any illegal drug whilst they have the care of X;
(d)Consuming alcohol over and above the legal limit for driving whilst they have the care of X;
(e)Recording the other parent or the child at any changeover or otherwise recording the child’s interaction with the other parent or permitting any other person to do so.
IT IS FURTHER ORDERED THAT
Consent orders, pending further order and without admission and without prejudice to the interim issues for determination, it is ordered that:
(5)The child, X born … 2017, live with the mother.
(6)The child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)That the child shall spend time with the father on at least one occasion each week with such occasion to be on a Friday or otherwise as agreed between the parties in writing.
(b)That the child’s time with father be supervised by community based supervision service, P Group or such other community based supervision service as the parties may agree in writing.
(7)The child’s time with the father on each occasion of supervision be for a minimum of three (3) hours and may continue for a longer period by agreement between the parties and the retained supervision service.
(8)The mother and father shall pay equally the cost of such community based supervision.
THE COURT NOTES THAT
(9)It is the agreement of the parties that the child’s time with the father shall occur over a rolling three week cycle, such that the child’s time with the father on the first and second occasions in such cycle take place in the Suburb A area and on the third occasion such time take place in the Suburb N area proximate to where the child resides with the mother.
(10)The mother will be absent with the child on holidays between the following dates:
(a)5 to 10 August 2019;
(b)10 to 17 September 2019; and
(c)15 to 21 October 2019
and in the event that such holidays interfere with the time provided for above, makeup time shall be facilitated either prior to or subsequent to such holiday periods provided always that such makeup time does not occur on consecutive days.
(11)The child’s time with the father is expected to commence as soon as supervision arrangements can be put in place and if possible Friday, 26 July 2019.
IT IS FURTHER ORDERED THAT
(12)The Father and Mother each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer provided always that such request shall not occur more frequently than once per calendar month with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this Order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile telephone number, email address if available and facsimile number if available.
(13)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(14)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
(15)The Applicant file and serve any further supplementary submissions by no later than Friday, 16 August 2019 and that thereafter the mother file and serve any written supplementary submissions by no later than Friday, 30 August 2019.
(16)The Independent Children’s Lawyer file any further written submissions to be relied upon by no later than Friday, 27 September 2019.
(17)Thereafter judgment is reserved to chambers.
In his Amended Application in a Case filed 12 July 2019 the father relevantly sought interim orders, in summary, as follows:
a)that the parties have equal shared parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend unsupervised time with the father for eight hours each Friday, for eight hours each alternate Tuesday, with such time is to be between 9.30 am and 5.30 pm and after three months the child spend one night per week with the father being from 3.30 pm each Thursday until 5.30 pm each Friday.
The father relied at the interim hearing on his affidavit filed 12 July 2019.
The mother relied at the interim hearing on her affidavits filed 20 February 2019 and 11 June 2019.
Supervision reports of the father’s supervised time with the child have been unremarkable in that there have been no concerns raised as to the father’s interaction with the child.
Submissions were received by the parties as directed and on 27 September 2019 judgment was reserved as to interim issues.
The ICL’s submissions properly highlight the evidentiary gap as between the allegations made by the mother and the father’s denial of any untoward conduct in relation to his child. As contended by the ICL at this interim stage, the Court does not have the opportunity to test the evidence and it is submitted by the ICL that pending a full assessment of the evidence by the appropriate expert the Court should err on the side of caution and an order should be made for the father to spend supervised time with the child on an interim basis. The ICL contends that the purpose of such supervision is firstly to protect the child from any potential harm that may be posed by the father but secondly to protect the father against any further allegations of abuse and/or mistreatment of the child. Regrettably, appointments for the parties to see the single expert that had been scheduled for 18 September 2019 were vacated as a consequence of the mother’s travel plans and those appointments are now scheduled for 11 December 2019.
The ICL proposes that the father’s time with the child continue to be supervised, that on a without admission basis the mother be restrained from causing the child to be referred to, recorded or otherwise known by any name other than “X McGowan”. The name issue arises by reason of the father’s allegations that the mother has been referring to the child using the hyphenated surname that she seeks for the child in her Response to the father’s Initiating Application.
The father in his submissions takes issue with the mother’s allegations as to his aberrant behaviour in relation to the child. He strenuously denies any inappropriate behaviour on his part and highlights the nature of the supervision reports that are available to the Court. The father’s submissions highlight the enormous gap between the evidence of the mother and his denials that indeed can only be resolved at a final hearing.
Interim Parenting
In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Since Goode (supra), s 69ZL of the Act has been enacted which provides that a Court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
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).
121.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.”
122.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.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode (supra). The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
In these proceedings the question of parental responsibility does not arise as a matter of significance. The child’s primary residence is at present settled by interim consent orders. There are significant factual issues for determination at final trial. In the circumstances of this matter it is not appropriate for the presumption to be considered. Neither party seeks an order as to the allocation of parental responsibility in the context of this discrete hearing.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The present circumstance focuses on the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration is in itself determinative of the present application on an interim basis such that it calls for orders protective of the child and as discussed above by the father.
Whilst the Court is presented with evidence that is not tested by cross-examination, the evidence of the mother as to the child’s presentation after time with the father and the child exhibiting “sexualised behaviours” is as the ICL properly contends most concerning.
It is in the child’s best interests that her contact with the father be carefully monitored to protect the child and importantly protect the father from further allegations.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations. Regard has been had to all. The more relevant consideration are discussed below.
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
h) if the child is an Aboriginal child or a Torres Strait Islander child
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
The child is too young to have expressed a view in these proceedings.
The child has a primary relationship with the mother that will be preserved by the current orders. The child’s relationship with the father has developed in the context of the present protective supervision and it should be allowed to continue given the positive nature of the visits so far. The records of the supervision centre (Exh “D”) indicate that the child is observed to appear happy and at ease during her visits with the father.
The father asserts that he has continued to pay the mother child support since December 2017 in accordance with a child support assessment.
The father has demonstrated a mature attitude in circumstances where he denies any inappropriate behaviour on his part. The supervision records (Exh “D”) document “[the father] was always appropriate and respectful and went well for the lttle (sic) time he had with his daughter.” It is also documented in the supervision records that the father has been observed to engage with the child in a “child appropriate manner.”
As discussed above the mother makes serious allegations of physical and psychological family violence perpetrated by the father towards her and the child and asserts otherwise that the child witnessed incidents of violence perpetrated by the father towards her. In circumstances where the mother’s evidence cannot be tested but where some evidence exists which on its face supports the mother’s contentions this consideration supports the making of orders which are appropriately protective.
The mother also alleges that the father has a history of drug and alcohol abuse. There is no evidence to support these contentions at this stage in the proceedings, however, these issues may need to be further explored at final hearing.
Whilst the Court has considered factual matters including the parties’ history that touch upon the various additional considerations, the need to protect the child is overwhelmingly the primary issue.
The ICL, for reasons discussed above, rightly supported orders that the father’s time be supervised in a contact centre and that the Court await the Single Expert Report.
Orders will be made to facilitate same accordingly.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 October 2019.
Associate:
Date: 17 October 2019
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