Nayar & Groth
[2023] FedCFamC1F 266
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nayar & Groth [2023] FedCFamC1F 266
File number: CAC 1702 of 2021 Judgment of: GILL J Date of judgment: 14 April 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM PROCEEDINGS – Where mother seeks recommencement of professionally supervised time between the father and the child in substitution for current non-professional supervision regime – Where the father has never spent unsupervised time with the child – Where the mother alleges risk of harm to the child both from the father and from the mother’s response to the risks she perceives, including through exposure to investigating 2 agencies – Consideration of the risk of father spending time with the child balanced with the importance of a meaningful relationship between them – Application dismissed. Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65DAA
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Isles & Nelissen [2022] FedCFamC1A 97
Salah & Salah [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 6 April 2023 Place: Canberra Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Mr Stagg Solicitor for the Respondent: Parker Coles Curtis Solicitor for the Independent Children's Lawyer: Ms Mussato, Legal Aid ACT ORDERS
CAC 1702 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GROTH
Applicant
AND: MR NAYAR
Respondent
order made by:
GILL J
DATE OF ORDER:
14 APRIL 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 21 March 2023 is dismissed.
2.Order 7 (make-up time) of the Orders made by Judge Hughes on 22 December 2022 in the Federal Circuit and Family Court of Australia (Division 2) (“Judge Hughes’ Orders”) is discharged in respect of the respondent father’s make-up time to the date of this judgment.
3.The respondent father’s visits with X recommence on 18 April 2023, as per Judge Hughes’ Orders, and transition to Order 3(c) of Judge Hughes’ Orders after four further four hour visits have occurred.
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 the pseudonym Nayar & Groth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
The parties to this matter are Ms Groth, the applicant mother born 1984, and Mr Nayar, the respondent father born 1988. The parties were in a relationship from late 2019 until January 2021. There is one child of their relationship: X born 2021, aged two.
An Independent Children’s Lawyer (“ICL”) was appointed on behalf of X.
These proceedings concern the arrangements for X to spend time with the father pending final hearing that is scheduled for July this year.
It was uncontroversial that the father has never spent time with X other than subject to supervision in one form or another.
The proceedings take place in the context that on 22 December 2022, Judge Hughes made interim orders whereby X lives with the mother and spends supervised time (supervised by particular persons) with the father regularly. This in turn followed previous determinations by Judge Hughes that provided for X to spend professionally supervised time with the father.
It is uncontroversial that after X spent time with the father on about five occasions under the current supervision arrangements, the mother ceased to provide X and, on 21 March 2023 the mother filed an Application in a Proceeding seeking to bring the current supervision arrangements to an end. Since that occurred, and prior to the hearing of this application, X has had one further professionally supervised visit with the father on 29 March 2023.
The mother seeks that the arrangements for X to spend time with the father revert to the professionally supervised regime that was in existence prior to the orders of 22 December 2022.
The key justification that the mother presents for such a course is that she has both observed particular behaviour from X, and heard X make particular comments following time with the father that raise the spectre that, notwithstanding the supervised nature of the time with the father, mean that she is at risk of harm in spending other than professionally supervised time with him, meaning that such risk should be ameliorated by the arrangements reverting to professionally supervised time.
In contrast, the father seeks that the current orders remain, but are supplemented with specific arrangements for make-up time in relation to the mother’s withholding of X.
The mother’s case is that it is necessary to change the supervision arrangements in order to protect X from abuse by the father but, more importantly, to protect X from the consequences of the mother believing that X is at risk of harm from spending time with the father. This risk was said to arise from potential anxiety and worry on the part of the mother, and from X being exposed to engagement with the local welfare agency and with the Australian Federal Police (“AFP”) as a result of the mother forming such beliefs in consequence of X spending other than professionally supervised time with the father.
The ICL opposed there being a change to the orders, other than a partial discharge of the make-up time orders made by Judge Hughes.
MATERIAL RELIED UPON
The parties tendered a number of documents. Whilst further material was referred to in their Case Outline documents, by the hearing, the evidence at the hearing was identified in a more focussed fashion.
Applicant Mother
The mother relied upon the following:
(1)Application in a Proceeding filed 21 March 2023; and
(2)Affidavit of the mother filed 21 March 2023.
Respondent Father
The father relied upon the following:
(1)Response to an Application in a Proceeding filed 4 April 2023;
(2)Affidavit of the father filed 4 April 2023;
(3)Affidavit of Ms B filed 4 April 2023; and
(4)Affidavit of Ms C filed 4 April 2023.
Independent Children’s Lawyer
The ICL relied upon the following:
(1)Application in a Proceeding filed 21 March 2023;
(2)Affidavit of the mother filed 21 March 2023;
(3)Response to an Application in a Proceeding filed 4 April 2023;
(4)Affidavit of the father filed 4 April 2023;
(5)Affidavit of Ms B filed 4 April 2023;
(6)Affidavit of Ms C filed 4 April 2023.
(7)Amended Case Outline filed 5 April 2023; and
(8)Tender Bundle.
PROCEDURAL HISTORY
It is useful to set the current application into its context within the proceedings.
The parties separated in about January 2021.
An Interim Family Violence Order (FVO) was granted to the mother against the father in early 2021.
The father filed an Initiating Application in the Federal Circuit Court (as it then was known) on 5 August 2021 seeking equally shared parental responsibility and further particularisation of orders following the release of the Family Report. At that stage he had not met X, who was approximately six months old. The mother filed her Response to an Application on 3 September 2021 seeking sole parental responsibility, and that X live with her and spend no time with the father. As an alternative, she sought that X spend professionally supervised time with the father.
On 29 September 2021, an interim hearing was conducted before Judge Hughes who made orders for professionally supervised time with the father.
The father commenced seeing X for short periods of less than two hours from late 2021. The first time the father met X was a professionally supervised visit in late 2021 at E Centre, a supervision provider.
In late 2021, the FVO proceedings were resolved by undertakings being given on a without admissions basis.
On 25 March 2022, further orders were made for supervised time between X and the father.
On 22 December 2022, following a contested interim hearing, Judge Hughes made orders that X would reside with the mother, that the mother would exercise sole parental responsibility and that X would spend time with the father, supervised by defined members of the father’s family and friends. An ICL was appointed for X. The proceedings were also transferred to Division 1 of the Federal Circuit and Family Court of Australia and listed for trial in July 2023.
The mother filed an Application in a Proceeding on 21 March 2023 seeking that X have professionally supervised time with the father.
THE SIGNIFICANT FACTUAL ISSUES
It was uncontroversial that the current application occurs against a background of a significant gulf between the parents. This is illustrated by the mother’s ultimate primary position being that the father should have no contact with X.
The mother asserts that X has become increasingly distressed following visits with the father, and more so since the transition from professional supervision.
Prior to the current orders being made by Judge Hughes, and in a period in which all visits were professionally supervised, the mother made complaints about the father’s conduct during supervised visits.
Specifically, over two months in late 2022, the mother stated that she observed X demonstrating uncharacteristic, concerning behaviour and described that she would say what the mother took to be suggestive things.[1] This included X saying “open legs” and “open wide” while spreading her legs for nappy changes (the mother stated that she and her family have never said that to X), and describing that X would lie limply on her back with her legs parted for the nappy change.[2] The mother has also stated that X has been using the term “puffy” and has also been “doing puffies” where she blows air onto the mother and on her pillow and sheets.[3] The mother alleges that a “puffy” was an intimate act between the parties initiated by the father.[4] While denying that a “puffy” was an intimate act between he and the mother, the father accepted that he has performed “puffies” on X, describing them as innocuous affectionate acts of blowing onto X’s clothing.[5]
[1] Affidavit of the mother filed 21 March 2023, paragraph 32.
[2] Affidavit of the mother filed 21 March 2023, paragraph 21.
[3] Affidavit of the mother filed 21 March 2023, paragraphs 24–25.
[4] Affidavit of the mother filed 21 March 2023, paragraph 23.
[5] Affidavit of the father filed 5 April 2023, paragraphs 24–25.
These acts were alleged to have occurred during professionally supervised time. It was uncontroversial that they do not appear in notes prepared by the relevant supervisors. The mother says that she makes no criticism for any failure to record them by the supervisors as she says that at face value they appear innocuous, but that in the context of her and the father’s relationship should be seen as sinister, particularly given the sexual connotations associated with “puffies” during their relationship. The “puffies”, for example, are suggested to be potential grooming of X, or, by reason of the sexual connotations for them between the parties, a sinister attempt by the father to adversely impact the mother in a manner that would not be apparent to a supervisor.
It may be seen that despite the mother’s current application for professional supervised time, in part to allay her concerns, her concerns have remained during past professional supervision.
Following the orders made by Judge Hughes on 22 December 2022, X spent one further visit with the father professionally supervised by D Centre in early 2023. Since then there have been five visits which have occurred supervised away from D Centre and E Centre.[6] After an undertaking was given by the respondent’s sister, Ms B on 6 January 2023, four of the father’s visits with X have been supervised by her. These visits were on: 17 January, 24 January, 31 January and 28 February.[7] Ms F also gave an undertaking on 13 February, which was filed on 14 February. She supervised one of the father’s visits with X on 14 February and visited on 28 February.[8]
[6] Affidavit of the father filed 5 April 2023, paragraph 13.
[7] Affidavit of Ms B filed 5 April 2023, paragraph 6.
[8] Affidavit of the father filed 5 April 2023, paragraphs 13.4–13.5.
On 17 January 2023, X spent time with the father under Ms B’s supervision. Ms C and her daughter Ms G were also present.[9] They all stayed at home the entire time.[10]
[9] Affidavit of Ms B filed 5 April 2023, paragraph 8.
[10] Affidavit of Ms B, filed 5 April 2023, paragraph 8; Affidavit of the father filed 5 April 2023, paragraph 13.1.
On 24 January 2023, X spent time with the father under Ms B’s supervision. The paternal grandfather, Mr H was also present.[11] They all stayed at home and went for a walk around the neighbourhood.[12]
[11] Affidavit of Ms B, filed 5 April 2023, paragraph 9.
[12] Affidavit of Ms B, filed 5 April 2023, paragraph 9; Affidavit of the father filed 5 April 2023, paragraph 13.2.
On 31 January 2023, X spent time with the father under Ms B’s supervision. The paternal grandfather was also present. They spent time at home and went for a walk in Suburb J to visit a park.[13]
[13] Affidavit of Ms B, filed 5 April 2023, paragraph 10; Affidavit of the father filed 5 April 2023, paragraph 13.3.
On 14 February 2023, X spent time with the father under Ms F’s supervision. The paternal grandfather was also present, as was Mr K, Ms L, Ms N and Ms O.[14] The visit was spent entirely at the father’s home.
[14] Affidavit of the father filed 5 April 2023, paragraph 13.4.
On 28 February 2023, X spent time with the father under Ms B’s supervision. The paternal grandfather was present, as was Ms F and her partner Mr M.[15] Ms F appears to describe this visit as taking place on 21 February, although it appeared uncontroversial that there was no visit on that day and that the visit was on 28 February.
[15] Affidavit of Ms B, filed 5 April 2023, paragraph 11; Affidavit of the father filed 5 April 2023, paragraph 13.5.
The mother asserts that X suffered a concussion whilst in the care of the father in early 2023.[16] The mother says that following time with the father, X was tired, complaining of feeling nauseous, having a sore head, unsteady, light sensitive, resulting in the mother taking her to the emergency department. While the mother asserted that “a suspected mild concussion was confirmed”,[17] the hospital records did not appear to rise to such a level of confirmation.[18]
[16] Affidavit of the mother filed 21 March 2023 paragraphs 34–35.
[17] Affidavit of the mother filed 21 March 2023, paragraph 35.
[18] Exhibit F5 and F6.
The mother buttressed her claim of concussion noting that X has previously (before the concussion) described having banged her head on the father’s bed.[19]
[19] Affidavit of the mother filed 21 March 2023 paragraphs 36.
This resulted in X being withheld by the mother until a visit on 31 January 2023.
Any such injury, or incident involving X hurting her head was denied by the father and by Ms B, who supervised the relevant visit.[20]
[20] Affidavit of Ms B filed 5 April 2023, paragraph 27; Affidavit of the father filed 5 April 2023, paragraphs 26‑30.
The mother asserts that X subsequently made a number of what she took to be disclosures to her in early 2023, the latest previous visit with the father occurring on 28 February 2023.[21] This occurred in the context of when the mother was getting X ready for bed at around 7.50pm.
[21] Affidavit of the mother filed 21 March 2023, paragraph 6.
The mother states the first comment from X occurred when she was changing X’s clothes for bed. X was lying on her stomach and said to the mother “Dadda change [X’s] nappy like that.”[22] X said to the mother “on mat on Dadda’s bed.”[23]
[22] Affidavit of the mother filed 21 March 2023, paragraph 8.
[23] Affidavit of the mother filed 5 April 2023, paragraph 7.
The mother states she sought to clarify if X was being changed lying on her stomach or on her back, saying “does dadda change your nappy on your tummy or on your back?” to which X said it was on her tummy. [24] Telling X that was “silly” the mother asked X to demonstrate. In response, the mother states that she observed X roll onto her tummy and lift her bottom into the air, on her knees, with her face and hands flat on the mattress.[25]
[24] Affidavit of the mother filed 21 March 2023, paragraph 6–8.
[25] Affidavit of the mother filed 21 March 2023, paragraph 8.
The mother asked X “what else does dadda do?” The mother asserts that in response X reached one hand around her bottom and touched her anus and tried to put her fingers in it, before separating her bottom with one hand.[26] The mother says that she asked “whatchu doing bubba?” to which X responded “just something.”[27]
[26] Affidavit of the mother filed 21 March 2023, paragraph 10.
[27] Affidavit of the mother filed 21 March 2023, paragraph 11.
The mother states she observed X then reaching both hands under her tummy and between her legs, while her bottom was still in the air and her face still on the bed, and separated her vagina wide with the fingers of both hands.[28] Due to X’s eye contact the mother took this to be a response to what the father was doing to X. The mother says that she has not previously observed X to touch herself in this manner.
[28] Affidavit of the mother filed 21 March 2023, paragraph 12.
The mother then asked X if the father touched her “fanny” referring to her vagina, to which X did not respond.[29]
[29] Affidavit of the mother filed 21 March 2023, paragraph 13.
The mother says that following X’s actions, she then said “Dadda say that little eggs come out of [X’s] bottom with little babies in them!” and pinched her bottom cheek which still on her tummy and said “I’m going to pinch your little cheek.”[30] The mother states that she asked X if there was anyone else present when the father would change X’s nappy, and specifically referred to “[Ms B]”, the father’s sister. X said it was only her and the father.[31]
[30] Affidavit of the mother filed 21 March 2023, paragraph 14.
[31] Affidavit of the mother filed 21 March 2023, paragraph 15.
Shortly after the mother gave X a snack, and X asked her “Is [X] a dog, Mumma?”[32] The mother responded to say that X was not a dog, and pressed her on who said that. X responded saying that it was the father.[33] The mother then put X to bed, and she kept repeating “Dadda say [X] is naughty, mumma!”[34]
[32] Affidavit of the mother filed 21 March 2023, paragraph 18.
[33] Affidavit of the mother filed 21 March 2023, paragraph 18.
[34] Affidavit of the mother filed 21 March 2023, paragraph 19.
The father, the various supervisors and Ms C each deny that such interactions with X took place during visits with the father, or that X was changed in such a manner, or that such comments were made to X.
The mother also lists the following as out of character conduct by X following the transition to family supervised time:
32. In addition to the dysregulated behaviours set out in my Affidavits of 15 March 2022, 30 September 2022 and 28 November 2022, since visits have moved to new arrangements in January this year, I have observed [X] do and say the following things that are entirely out of character for several days following visits:
(a) [X] is very distressed and cries loudly, stiffens her legs and tightens her bottom during nappy changes, and kicks and hits me to avoid having her nappy changed. I have tried a number of different methods to avoid causing her distress;
(b)[X] cries and tightens her legs in the bath to avoid her vagina and bottom being washed while saying “Don’t wash [X’s] bottom, mumma!”;
(c) [X] has complained of having a sore bottom and sore tummy;
(d) During bed time, [X] has begun frequently positioning herself on her knees with her bottom in the air and her face and hands flat on the bed, then taken a small soft toy and placed it between her legs and pressed her tummy or crotch into it. She has done this over and over saying “squeeze” or “squash” especially during the week following the 28 February 2023 visit when it became more intense. On Sunday 5 March 2023 [X] continually did this while moving her hips back and forth;
(e) [X] has bitten the bed sheets and pillow while facing down with her bottom in the air, sometimes while licking the bed and moving her head from side to side saying “Dadda like that” for example on the evening of 22 January 2023 while I was putting her down to sleep;
(f) [X] has complained of being hungry, thirsty, being very tired, and having headaches after returning from visits but also refusing her normal favourite foods;
(g) [X] has refused to sleep at her normal hours, has been extremely distressed at bed times, cried and screamed in her sleep almost every night and had nightmares, and now needs a light on to sleep;
(h) [X] has started talking about her visits with [Mr Nayar] but then stared into the distance and become non-responsive;
(i) [X] has banged her head repeatedly on her pram when out walking, hit herself on the head and face, bitten her lip and bitten her own arm when frustrated;
(j) [X] has made number of concerning comments such as “Is [X] naughty Mumma? Dadda say [X] is naughty!”, “Dadda say [X] be brave,” “Bend over!”, “I’m going to punch you mumma,” “Little [X] does not look at all like mummy,” and “I’m going to bang you Mumma” while lightly hitting my face;
(k) [X] has pinched me very hard when I picked her up for a nap, bath or to sit on the potty, which she has never done before;
(l) Since 28 February 2023, [X] has said on several occasions that she “wants to show me a trick” and then laid down on the floor and started squirming around;
(m) On the afternoons of 31 January 2023 and 28 February 2023, I observed two reddish marks on either side of [X’s] vagina; and
(n) On 14 February 2023, I noticed while changing her nappy that [X’s] vagina looked redder than usual, although it is difficult to determine the cause.[35]
[35] Affidavit of the mother filed 21 March 2023, paragraph 32.
The mother again suspended X’s visits.
The father, the supervisors for his non-professionally supervised visits, and Ms C who attended one of those visits with her child, describe X’s conduct as not being demonstrative of distress. In contrast to the mother’s assertions, the father, his supervisors and Ms C described appropriate and warm interactions with X that give respect to her autonomy in issues such as being touched or having her nappy changed.
The father has since spent one further visit professionally supervised by E Centre in early 2023.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence. Further, where applicable, s 65DAA sets out a reasoning pathway to be followed. In this case, due to the narrow nature of the dispute, in a context where no party sought to displace the present orders that allocate sole parental responsibility to the mother, that reasoning process was inapplicable.
In this case, the key considerations were those of risk of harm to X, and the benefits of meaningful relationship.
The consideration of these falls within the background of a recent resolution of those issues by Judge Hughes, more recent allegations that require weighing against the more general background, and the commonality of the parties in identifying that time between X and the father should continue pending the final hearing of the matter in July, and that it should continue to be on a supervised basis, albeit with dispute as to the nature of that supervision.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah,[36] where it was observed that “it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[37] Reflecting the earlier case of Goode & Goode,[38] it was accepted that the court in interim proceedings should not be drawn into:
68. …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...[39]
[36] [2016] FamCAFC 100.
[37] Salah & Salah [2016] FamCAFC 100 at [36].
[38] (2006) FLC 93-286.
[39] Goode & Goode (2006) FLC 93-286 at [68].
Importantly, however, it was accepted, as identified in Eaby & Speelman,[40] that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[41]
[40] (2015) FLC 93-654.
[41] Eaby & Speelman (2015) FLC 93-654 at [18].
That is, the court, despite the limitations on testing the evidence, and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH, [42] identified:
100. …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.[43]
[42] [2010] FamCAFC 13.
[43] SS v AH [2010] FamCAFC 13 at [100].
Given that the key issue raised to justify the departure from the orders of Judge Hughes is that of risk, it is important to recognise the nature of the court’s function in assessing such, even in the context of the limitations imposed by the interim nature of the proceedings. In Isles & Nelissen,[44] the approach to risk was identified as:
138. … a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.[45]
[44] [2022] FedCFamC1A 97.
[45] Isles & Nelissen [2022] FedCFamC1A 97 at [138].
It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, in a case such as this where one issue is that of risk of sexual abuse, the court observed that:
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
The limitations inherent to interim proceedings necessarily form a part of the consideration of risk.
It should be recognised that here the risk asserted was not simply as to a direct risk of sexual or psychological abuse or harm, but a derivative risk flowing from the mother’s responses to perceived risk, exposing X to the mother’s anxiety and to investigative authorities, exemplified recently by the AFP’s interview of X following the alleged disclosures of early 2023.
Against these risks must be balanced the potential impact to X of a change from the current family supervised regime to a professionally supervised regime during the period pending the trial.
These risks must be balanced against the potential impact to X of a change from the current supervised regime to a professionally supervised regime during the period pending the trial.
DISCUSSION
The current allegations arise during a time that X was subject to a non-professional supervision regime. They occur within a broader context where the regime of X’s time with the father has never permitted anything other than supervised time, but also against a more controversial background of alleged family violence.
The tensions in this case lie firstly at the intersection of the protections that may be reasonably anticipated from the supervision regime weighed against the mother’s assertions as to and responses to, X’s comments regarding time during supervision and secondly, in the benefits to X that may be inferred from flowing from the non-professional supervision versus professional supervision.
The appropriateness of the supervision scheme is supported by the evidence given not only by the father but also by his sister, Ms F and Ms C. Together they indicate that not only was the time with X supervised, but that there were also, frequently, multiple other persons who were present. While they provide strong corroboration for each other, the mother points to potential weaknesses in their evidence. The potential inadequacy of the scheme flows from the mother’s criticisms of the evidence of the father and his witnesses and claimed deficiencies in his responses, combined with the significance that she attributes to the comments and behaviour that she describes in X, which may also be taken to be controversial, not only as to the interpretation to be placed upon it, but also as to whether or not X has behaved and spoken as asserted by the mother.
It should be acknowledged that there is no opportunity to test the evidence nor to make definitive findings that X has, or has not behaved in the manner described, or that the supervision either has, or has not been effective.
Controversy also arises from the assertions by the mother of X’s distress following time with the father, as opposed to the father’s, Ms B’s, Ms F’s and Ms C’s evidence of a lack of distress exhibited by X in her time with the father.
It may also be expected that there are benefits available to X in the current regime that are not as readily available with the professional. The father’s evidence indicates limitations in the professional supervision, whilst his evidence, and the evidence of his witnesses is supportive of the notion that the non-professional supervision provides a warm and, as far as can be under the circumstances, natural environment for X to experience the benefits of a relationship with her father. The description of each of those witnesses is suggestive that X is experiencing benefits in her relationship with the father.
It may also be seen that a reversion to professional supervision is unlikely to persuade the mother that X is safe, nor to protect X from the mother’s reactions to her suspicions.
In the absence of fact finding in controversial matters, weighing the probabilities, possibilities and likelihoods in a context of uncertain facts, as is required by cases such as AH & SS,[46] and Isles & Nelissen,[47] points to a conclusion that for interim and short term prospects, risk is sufficiently ameliorated by the current regime, despite the criticism of the mother.
[46] [2010] FamCAFC 13.
[47] [2022] FedCFamC1A 97.
It may be that, on exploration of the underlying facts at trial a different conclusion may emerge, or it may be that the criticism emerges as groundless, but assessing the risks in the current realm of uncertainty, the balance for promoting X’s interests should be struck as a continuation. This is particularly so as a reversion to professionally supervised time suggests a degradation of X’s current experience of the father and his family, conducted as it would be outside the more normalised environment of the current arrangements.
Although the father sought an arrangement for specific make-up time, it remains unclear, as submitted by the ICL, that a sharp increase in frequency of time with the father that would be caused, would benefit X. Such a sharp increase would be the result of either acceding to the father’s application in that respect, or even leaving the current regime in place in respect of the mother’s withholding. While the current make-up time regime should persist in relation to future with-holdings of X, it should be discharged in its effect to date so as not to expose X to a sudden change beyond that which was so carefully managed by Judge Hughes in transitioning into non-professional supervision. Similarly, the transition to longer periods should not happen abruptly.
It may be anticipated that if there are further issues in relation to X’s time with the father that the matter would receive some priority within the list.
CONCLUSION
The current orders will not be discharged or varied save as to discharge the effect of the orders to date in respect of make-up time and transition to longer periods.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 14 April 2023
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