Nelson and Wade

[2017] FCCA 379

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELSON & WADE [2017] FCCA 379

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged two years – child lives with mother in (omitted) – father seeks to spend time with child – parties have no history of parenting child consensually – allegations of family violence made against father by mother – mother has significant mental health issues – father has no relationship with child – father seeks to spend unsupervised time with child – (omitted) has no facilities for professional supervision – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
B & B (1993) FLC 92-357
Mazorski v Albright (2007) 37 FamLR 518

Applicant: MS NELSON

Respondent: MR WADE

File Number: NCC 2167 of 2016

Judgment of: Judge Brown

Hearing date: 21 February 2017

Date of Last Submission: 21 February 2017

Delivered at: Adelaide

Delivered on: 2 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Storey

Solicitors for the Applicant: Rachel Storey & Associates

Counsel for the Respondent: Mr Craney

Solicitors for the Respondent: Doyle Kingston Swift

ORDERS

1. Until further or other order the child [X] born (omitted) 2014 live with the mother.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 19 May 2017.

3. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

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

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

4. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

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

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

   (a)a Children’s Court;

   (b)a child protection authority;

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

   (d)a convener of any legal dispute resolution conference

NOTING:

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

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

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

1. Further consideration of the matter is adjourned to 8 June 2017 at 9:30am in (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BROKEN HILL

NCC 2167 of 2016

MS NELSON

Applicant

And

MR WADE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are concerned with interim parenting arrangements for a child aged two years and two months.  He is [X] born (omitted) 2014. 

2. The parties to the proceedings are Ms Nelson “the mother” and Mr Wade “the father”.  [X] currently lives with his mother and has no relationship, to all intents and purposes, with his father. 

3. The parties met, in (omitted) in April 2014.  They began to live together in February 2015 and separated in September of 2015.  On any view, the relationship between the parties was a short one.  They have little, if any, experience of parenting [X] together. 

4. The mother alleges that the father is a violent and alcoholic person, who has previously subjected her to serious family violence.  As a consequence, it is her position that she is extremely frightened of Mr Wade and cannot cope with the thought of him interacting with [X], for anything other than short periods of time, subject to rigorous supervision, preferably in a professional setting, in which she has confidence. 

5. Ms Nelson has deposed as follows:

   “I believe that the respondent should not have contact with [X] given his abusive nature, his abuse of alcohol and hard drugs and his lack of respect for me.  [X] does not know his father.  I do not have anyone who is prepared to supervise the visits given the respondent’s known treatment of me.  I would certainly not agree with any overnight time with the respondent given [X]’s special needs and the above reasons.”[1]

   [1]  See mother’s affidavit filed 10 February at paragraph 6

6. The father denies that he has substance abuse and alcohol issues.  In addition, he points to the fact that there is little, if any, independent corroboration of the allegations made against him of family violence.  In this context, he points to the fact that two applications for apprehended domestic violence orders, made against him were not sustained.

7. The case arises in the (omitted) sittings of the court.  (omitted) is an isolated town in outback New South Wales.  In this context, Mr Wade deposes as follows:

   “As a part of Ms Nelson’s application she is seeking that I spend time with [X] which is supervised by a Contact Centre.  These facilities simply do not exist in (omitted), so that part of the applicant can never be implemented.”[2]

   [2]  See father’s affidavit filed

8. Ms Nelson concedes that there is no easily accessible children’s contact centre in (omitted) and no professional person, who could provide supervision in the town.  In these circumstances, although it would be her preference that there be no time between [X] and his father, she proposes that her former husband, Mr D provide some form of supervision.  The proposal being for four hours once per week. 

9. Mr D has provided an affidavit in support of the mother’s case.  He has deposed as follows:

   “[X] is very happy.  He has a wonderful mother that has done everything possible to beat her PTSD and depression.  He has 3 brothers that adore him.  He attends daycare and is making new friends and a family that care for him greatly and I also love [X] very much.  If his world was disturbed right now by introducing a person into his life that calls himself ‘dad’.  I fear it would really disrupt [X]’s life as he has never really known this man.”

10. Mr Wade does not know Mr D but believes that he is likely to be strongly aligned with the mother against him, as is evident from his affidavit material.  In these circumstances, he is concerned that to engage Mr D is a recipe for disaster.  Essentially, he does not consider that he will be able to develop a natural attachment to [X] in the circumstances proposed by the mother. 

11. It is common ground between the parties that Ms Nelson was an inpatient at the psychiatric facility at [Hospital A] for a period of eight weeks following the parties’ separation.  She asserts that this admission was precipitated by the father’s abusive conduct towards her. 

12. The father does not accept this assertion and alleges that Ms Nelson’s psychiatric issues are longstanding and pre-date the parties’ relationship by many years.  In these circumstances, he submits that the mother lacks insight into the importance of [X] having a meaningful level of relationship with him and her psychiatric issues may act as some form of impediment in him having a proper level of relationship with [X]. 

13. These proceedings are directed to resolving these complicated issues on an interim or provisional basis, as a prelude to further evidence being gathered.  In this context, issues surrounding Ms Nelson’s psychiatric health are likely to be central.

Background

1. The father is forty-eight years of age and works as a (occupation omitted) in the (omitted) industry based in (omitted).  He works five days on and five days off with a working day, which extends between 6:00am and 6:00pm. 

2. The father has two children from an earlier relationship.  They are [A] born (omitted) 2008 and [B] born (omitted) 2009.  The children live predominantly with their mother but spend three days in Mr Wade’s care, during his five days rostered off.  One of the children has significant special needs in the form of cerebral palsy. 

3. It is Mr Wade’s submission that the significant level of care, which he regularly provides for [A] and [B], is supportive of his position that he is a competent and experienced parent, who will be able to properly attend to [X]’s needs, if an order is made for him to spend time with the child, in an unsupervised setting. 

4. At present, the father lives in a property, in (omitted), which he owns.  He has calculated that he has eighteen days off, between now and the next circuit to (omitted), which are suitable and available for him to spend time with [X], at his home. 

5. He concedes that it is appropriate that his time with the child be gradual and incremental and not include periods of overnight time, at this stage.  He proposes that the child be exchanged between the parties, given the tension and mistrust between them, at either the (omitted) Police Station or the local McDonald’s Restaurant.

6. The mother is thirty-three years of age and currently unemployed.  She has three children from her earlier marriage to Mr D.  They are [C] born (omitted) 2008; [D] born (omitted) 2011; and [E] born (omitted) 2013. 

7. [C], [D] and [E] live with Mr D and spend time with their mother.  Neither the mother nor Mr D has indicated what time the children spend with their mother and why precisely the children live with their father rather than their mother.  From the father’s perspective, this is a relevant consideration given Ms Nelson’s psychiatric history.

8. It is common ground between the parties that Ms Nelson informed Mr Wade that she was pregnant approximately two weeks after the parties had commenced their relationship.  In addition, [X] was born approximately five weeks premature.  In these circumstances, Mr Wade was concerned that there was a reasonable possibility that he might not be [X]’s father. 

9. Accordingly, on 14 November 2016, it was ordered, by the court, that both parties and [X] undergo a parentage test as prescribed by the Family Law Act 1975.  This test has now been completed and has confirmed that Mr Wade is [X]’s father.  This evidence is relevant only to indicate the extreme level of mistrust between the parties and the less than propitious circumstances surrounding [X]’s conception. 

10. Ms Nelson asserts that Mr Wade pressurised her to have a termination, when it became known she was pregnant.  Mr Wade concedes that the issue was discussed but denies exerting any malign influence on Ms Nelson in respect of the matter. 

11. I am concerned that this extremely private and emotionally potent issue has been raised in these proceedings, given that it does not have any bearing on what is currently likely to be in [X]’s best interests.  In these circumstances, it is difficult to resist the conclusion that the topic has been raised in the hope of creating a prejudicial impression.

12. The parties began to live together, at Mr Wade’s home in (omitted), in early February of 2015.  In this context, the father asserts that he had daily interactions with [X] and would regularly wash, feed and dress him.  On the other hand, it is the mother’s position that she was solely responsible for [X]’s care, as Mr Wade was essentially disinterested in him, preferring to spend his spare time at the pub. 

13. The parties finally separated in September of 2015.  However, they disagree about the circumstances surrounding their separation.  From the father’s perspective, he arrived home to discover that the mother and [X] had vacated the premises, which he asserts occurred without notice to him.  Ms Nelson asserts that she informed Mr Wade that she was leaving and she did so because of his unacceptable behaviour.

14. Mr Wade’s former partner is Ms M.  The mother asserts that Ms M has been abusive towards her, as she was jealous about the relationship between Ms Nelson and Mr Wade and the fact she was pregnant.  Mr Wade asserts otherwise contending that it was Ms Nelson who abused Ms M, causing the latter to take out an apprehended violence order against Ms Nelson. 

15. Ms Nelson concedes that she is the subject of such an order.  However, it is her position that the order was granted in default, as she was unable to attend the hearing in question as a consequence of being unwell in hospital.  Ms M has not filed an affidavit in these proceedings. 

16. Between September 2015 and now, it is clear that the father has had only limited time with [X].  Ms Nelson estimates that there have been five occasions in the past twelve months.  Mr Wade does not disagree with that.  It is also clear that each of these occasions has been of a relatively short duration.  In these circumstances, the only conclusion, which can be reached, is that [X] and Mr Wade are essentially strangers to one another. 

17. In addition, during this time, Ms Nelson has been absent from (omitted) for an extended period.  At some time, shortly after the parties separated, Ms Nelson was admitted to the mental health unit at the [Hospital A].  During this period, [X] was apparently cared for by his maternal grandmother, who did permit Mr Wade to spend time with [X].  Mr Wade believes that Ms Nelson was an inpatient at the hospital for a period of approximately eight weeks.

18. On her release from hospital, Ms Nelson travelled to (omitted), on the central New South Wales coast, with [X], where she stayed with her father.  On her arrival, she sought treatment from a counsellor and attended the mental health department at [Hospital B].  She had been prescribed Zoloft and Sereoquel.

19. Ms Nelson commenced these proceedings, whilst she was resident at Stuart Point.  Her application was filed on 19 August 2016, in the Newcastle Registry of the court.  At the first hearing date, the proceedings were transferred to the (omitted) sittings, given Ms Nelson was intending to return to the town. 

20. In my view, there is limited evidence currently available in respect of Ms Nelson’s psychiatric health.  In her affidavit material, she has indicated that she has suffered depression, in a post-natal context, since 2008.  She also deposes that she has been diagnosed with a bipolar disorder and a post-traumatic stress disorder.  She attributes the latter condition to the bullying and harassment of Mr Wade, which she categorises as narcissistic abuse. 

21. However, notwithstanding the extended period of time the proceedings have been on foot, Ms Nelson has not obtained any expert evidence, either from one of her treating practitioners, or otherwise, which provides an extensive diagnosis of her condition or any prognosis. 

22. As previously indicated, Mr Wade denies having subjected Ms Nelson to any harassment.  Accordingly, by necessary implication, it is his position that there is no nexus between his conduct and Ms Nelson’s psychiatric illness, which he would categorise as being serious.

23. This is the central evidentiary issue in the case.  It is Ms Nelson’s position that she is not emotionally robust enough to psychologically cope with the prospect of [X] spending extended and unsupervised time in his father’s care.  It is further her position that the direct cause of her condition is Mr Wade’s violent and coercive behaviour. 

24. The behaviour, of which Ms Nelson complains, can be summarised as follows: 

    ·Prior to [X]’s birth, she fell down a flight of stairs.  Mr Wade declined to take her to hospital, in the hope that she would lose the baby;

    ·Mr Wade was verbally abusive towards her, during the relationship, calling her a bad mother; useless and pathetic; 

    ·Mr Wade threatened to kill [X] when Ms Nelson informed him that she was leaving.  She alleges Mr Wade said “you won’t have him either once I kill him”;

    ·After separation Mr Wade threatened that he would get custody of [X] and she would never see [X] again;

    ·During a verbal argument, Mr Wade grabbed her around the throat and pushed her into a kitchen cupboard;

    ·After her suicide attempt, Mr Wade sent her a text message in the following terms:  “when are you going to try to kill yourself again, you are so pathetic, you can’t even do that right”;

    ·Since the instigation of these proceedings and up to the present time, Mr Wade continues to stalk her by driving past her home and getting other people to use facebook to find information about her and spread rumours that she is a psychopath;

    ·Mr Wade is an alcoholic, who binge drinks up to twelve cans of bourbon and coke regularly;

    ·Mr Wade drives whilst intoxicated;

    ·Mr Wade uses illicit drugs, such as ecstasy and marijuana;

    ·Mr Wade is addicted to online gambling;

    ·Mr Wade’s children are themselves violent and he is unable to properly regulate their behaviour, which potentially poses a threat to [X].

25. In all these circumstances, it is Ms Nelson’s case that she is very frightened of Mr Wade and has proper reason to be so.  She did not attend at court, on the hearing of her application because of her apparent fear.  Her solicitor did not arrange, with the court beforehand, to provide appropriate security for her, at court. 

26. It is Mr Wade’s position that there is no cogent evidence, apart from Ms Nelson’s allegations against him, to support any of these claims of violence, which he vehemently refutes.

27. In this context, Mr Wade points to the fact that he has been subject to two apprehended violence order applications, each of which has been comprehensively dismissed because Ms Nelson was not able to satisfy the presiding Magistrate, on the balance of probabilities, of the veracity of her concerns.  He contends that there is no physical evidence of the mother’s complaints.

28. There is one exception in this regard.  Ms Nelson has provided the text message, in which Mr Wade berates her following the unfortunate suicide attempt.  There can be no doubt that this was ostensibly a callous and provocative message, which does Mr Wade no credit.  However, it is his position that the message has been taken out of context and forms part of a long correspondence between the parties through which he was attempting to gain access to [X].  It is his position that he sent the relevant message when frustrated and angry. 

29. The father’s solicitors have issued subpoena to (omitted health organisation) and the [Hospital B] seeking access to Ms Nelson’s medical records arising from her recent illness.  The relevant records have been produced to the court.  However, as yet, neither party have inspected these documents and, as a consequence, no attempt has been made to tabulate them.  This is disappointing given the polarised positions of the parties in the matter. 

1. Shortly prior to the time scheduled for the interim hearing, Ms Nelson filed a number of further affidavits, in support of her position.  The deponents are as follows:

   ·Ms D, Ms Nelson’s mother;

   ·Ms K, a friend of the mother;

   ·Mr D, the mother’s ex-husband, who describes himself as Ms Nelson’s friend;

   ·A further affidavit of the mother herself.

2. In my view, none of these affidavits advances the matter significantly.  Ms D, Ms K and Mr D describe the mother as being anxious following [X]’s birth, which each attributes to Mr Wade’s behaviour.  However, none of the deponents concerned is able to provide evidence of having actually observed any of Mr Wade’s alleged abusive behaviour.  Rather, each reports the concerns Ms Nelson has confided in them.  In my view, much of this evidence is either hearsay or opinion.  As such, it is not helpful.

3. In her most recent affidavit, Ms Nelson reports that she continues to be stalked by Mr Wade.  In this context, she reports as follows:

   “He drives past my house, he gets other people to stalk me on facebook to try and find information about me and spreads rumours about people that I am a ‘psychopath’.”[3]

   Ms Nelson does not indicate whether or not this alleged behaviour has been reported to the police or provided any further details in respect of it.

   [3]  See Ms Nelson’s affidavit filed 10 February 2017

4. On any view, the circumstances in which the court may make a significant decision concerning the care of [X], at this stage, are extremely vexed and difficult.  The problems arising can be summarised as follows:

   ·[X] has no relationship with his father;

   ·At two years of age, [X] must be regarded as a vulnerable child;

   ·The parties have no trust in one another and no history of jointly parenting [X];

   ·The mother has recently suffered a significant episode of psychiatric illness, about which she has provided scant detail and no professional evidence;

   ·The mother has raised significant issues of family violence;

   ·The allegations of family violence are denied in circumstances where police applications for family violence orders have been dismissed;

   ·There are no professional services available in (omitted), either for supervised time or to provide a secure venue for handover;

   ·There is no independent lay person available, with the trust of both the father and mother, to provide any supervision of the father’s time with [X]. 

5. At this stage, the evidence available to the court is incomplete and contradictory in nature.  The parties agree on very little apart from the fact that they are unable to communicate satisfactorily with one another and [X] himself has had only very limited time with his father and no time recently. 

6. In SS v AH[4] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:

   “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.”

   [4]  See SS v AH [2010] FamCAFC 13 at [100]

7. In Eaby & Speelman[5] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage.  This is the position in the matter currently before the court.

   [5]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

8. The parties themselves are not in a position to agree on how any of the issues arising before the court are to be resolved, at this stage.  In my view, their resolution is likely to be dependant to a very significant degree, on an expert family report.  As a consequence, in my assessment, there is a pressing need for such a report. 

9. Given the urgency of the situation, there has, as yet, been insufficient time for such a report to be prepared.  The resolution of the remaining issues is likely to turn on the court’s assessment of the credibility of each of the parties concerned.  At this interim stage, it is not possible for findings of fact to be made in the context of credibility findings. 

10. In all these circumstances, although the court can identify the salient issues likely to affect the outcome of the case, it cannot determine those issues in any definitive way.  This is where the dilemma for the court arises. 

11. In these difficult circumstances, it is necessary for the court to consider closely the legal principles applicable to the case to ensure that, in these invidious circumstances, it does its best to safeguard the interests of [X], in both the short and longer term.

The applicable legal principles

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

2. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

5. There are two primary considerations, which are as follows:

   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.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

9. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[6] 

    [6]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8] 

    [7]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [8]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act.  It means:

    “(a)   an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)     serious neglect of the child.”

13. As I understand Ms Nelson’s case, it is her position that there is a significant risk [X] will suffer some form of abuse, as a consequence of being exposed to Mr Wade, who she characterises as a violent parent, who has significant issues with drug and alcohol addiction.

14. On the other hand, it is Mr Wade’s position that Ms Nelson’s actions have deprived [X] of having the benefits of having a meaningful relationship with his father, which cannot be in the child’s best interests, either in the short or longer term.  It is his case that the court needs to do something urgently to ensure that an appropriate level of relationship between father and child is facilitated, notwithstanding the current vexed circumstances.

15. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

16. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

    ·an assault;

    ·a sexual assault or other sexually abusive behaviour;

    ·stalking;

    ·repeated derogatory taunts;

    ·intentionally damaging or destroying property; and

    ·the withholding of financial support.

17. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.  Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).

18. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

    ·overhearing threats;

    ·seeing or hearing an assault;

    ·comforting or providing assistance to a member of the child’s family, following an assault;

    ·cleaning up after property has been damaged; and

    ·being present when police attend an incident involving an assault.

19. In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.  Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[9]

    [9] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J

20. Family violence is not homogenous in its qualities and can arise in a variety of contexts.  It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children. 

21. Family violence can place children at actual physical risk of being hurt.  It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened.  For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children. 

22. Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned.  Obviously, the latter type of behaviour is more damaging, so far as children are concerned.  But not all incidents of family violence will be damaging for a child. 

23. At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made.  As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case. 

24. In Deiter & Deiter[10], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [10]  See Deiter & Deiter [2011] FamCAFC 82

25. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

26. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.

27. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [11]

    [11]  Slater & Light [2013] FamCAFC 4 at [37]

28. In this particular case, the risk identified by Ms Nelson is a multi-faceted one. 

    ·Firstly, she asserts that [X] is at risk because Mr Wade’s parenting is likely to be compromised by a combination of drug and alcohol abuse. 

    ·Secondly, she alleges that Mr Wade’s personality is a violent one, which will place [X] at direct risk of suffering harm. 

    ·Thirdly, she has concerns about Mr Wade’s other children. 

    ·Fourthly, it is her case that she herself is not emotionally robust enough to contemplate the prospect of [X] spending time with Mr Wade and certainly not to be physically involved in a direct transfer of the child to him. 

29. In B & B[12] the Full Court said as follows:

    “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

    [12] B & B (1993) FLC 92-357 at 79,780

30. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

31. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

32. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

33. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

34. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

35. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

36. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:

    ·consider the section 60CC matters relevant;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø there are reasonable grounds to believe abuse or family violence has occurred;

    Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Consideration

1. There is no evidence to indicate that [X] has been significantly exposed to family violence, in the sense envisaged by section 4AB(3) of the Act. However, in my view, [X] is significantly at risk, in all sorts of ways, as a consequence of the conflicted and difficult relationship between his parents. It is hard to see that the child could be easily exchanged between the parties given the current circumstances.

1. On any view, this is a case which cries out for some form of professionally supervised handover to ensure that [X] is not unduly upset.  At this stage, I am gravely concerned that the parties themselves would not be able to manage handover at some neutral but public location, such as a McDonald’s restaurant or even at a police station.  In my view, at this stage, the prospect of something going wrong is simply too great to countenance. 

2. The mother’s allegations of family violence are serious but inchoate, at this stage.  In this context, I note that there are no current family violence orders and in particular relevant applications, for such orders, have been subject to dismissal. 

3. It is Ms Nelson’s case that Mr Wade’s conduct towards her precipitated an extreme psychiatric reaction in her.  Mr Wade denies that this is so and, by necessary implication, asserts that Ms Nelson’s psychiatric condition inhibits her from being able to support a proper level of parental relationship between him and [X], which is to the child’s detriment. 

4. In my view, this is the most significant aspect of the case.  However, although the matter has been on foot for a significant period of time, there is as yet almost no independent evidence available in respect of it. 

5. If such a scenario had arisen in a major metropolitan or provincial centre, it is likely that the way forward would include some form of professionally supervised time, at a children’s contact centre.  That option is simply not possible in (omitted), given its isolated location. 

6. It is Mr Wade’s case that he is an experienced and competent parent.  As such, [X] is likely to benefit from having a meaningful level of relationship with his father.  In Mazorski v Albright,[13] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

   [13]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

7. The principles underlying Part VII of the Family Law Act place parents in a position of primacy vis-a-vis their children.  Children have a right to know and be cared for by both their parents and to spend regular periods of time with them [section 60B(2)(a) & (b)].  These principles apply regardless of whether the parents concerned are married, separated, have never married, or have never lived together.

8. In these circumstances, although the lack of relationship between Ms Nelson and Mr Wade raises significant logistical concerns.  This, of itself, is not an impediment to orders being made in respect of [X] spending time with his father.  The court is still required to give active consideration to the benefits [X] will derive from knowing his father, at first hand.

9. Children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances.  As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first-hand.

10. A child’s parents are also likely to be a source of unconditional love and approval for the child concerned.  Parents provide children with knowledge and information about their wider family and forebears.  Parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents.  For these central and self-apparent reasons, children benefit from having a “meaningful” relationship with both their parents. 

11. Notwithstanding the potentially significant benefits [X] will derive from interacting regularly with his father, the fact remains that the two have not engaged, in any meaningful way whatsoever, with one another, for a lengthy period of time.  Accordingly, in my view, there is not a pressing need to reinstate some form of relationship, particularly if precipitate action, on the court’s part, has the prospect of miscarrying.

12. In this case, in my view, such risks are very real indeed.  As indicated above, I do not believe that the parties themselves would be able to manage handover.  I am also concerned that Mr D is not suitably independent to provide any form of lay supervision.  Neither party is able to suggest any other person, either to conduct handover or to provide direct supervision.

13. Ms Nelson asserts that she is not emotionally robust enough to contemplate [X] spending time with his father, at his home, without supervision.  The difficulty with this submission is that it rests on Ms Nelson’s subjective opinion rather than on any professional assessment. 

14. However, in my view, given that Ms Nelson has recently undergone a significant period of psychiatric treatment, it would be imprudent of me to ignore her position.  At this stage, to paraphrase the words of Mr Rumsfield, the former United States Secretary of Defence, there are simply too many known unknowns arising in the case.

15. The major ones being –  how is this young child, with no current level of relationship with his father, to be exchanged between two parents who significantly mistrust one another; and what are the implications for Ms Nelson, in a psychological sense, of the child spending time with his father in an unsupervised setting, given her significant recent psychiatric history.

16. In this context, it is relevant that the uncontroverted evidence reveals that Ms Nelson has been [X]’s primary carer, since his birth and, as such, must be the major, if not the sole source of emotional sustenance for him.  As a consequence, the psychological wellbeing of Ms Nelson must be a significant consideration in the case in the sense envisaged in B & B.

17. In my view, the extraordinarily difficult circumstances of the current matter dictate that the court should take a cautious and incremental approach.  To do otherwise, in my assessment, has the potential to expose [X] to an unpredictable and possibly volatile outcome, which would not be calculated to be in his best interests, at this stage.

18. For these reasons, notwithstanding my sympathy for Mr Wade’s situation, I have come to the conclusion that the next step should be for the court to commission an urgent family report.  In my view, to do otherwise would be remiss so far as [X]’s best interests are concerned.  Such a report can be prepared comparatively quickly. 

19. In tandem with the report, Mr Wade’s solicitor can inspect Ms Nelson’s medical records and extract any significant items from them.  More significantly, Ms Nelson herself can provide evidence from her treating practitioners as to her diagnosis, treatment and prognosis, particularly in the context of Mr Wade spending time with [X].

20. Pending the provision of that report, I have come to the conclusion that it would not be in [X]’s best interests to spend any unsupervised time with his father and there is no other alternative form of time available at this stage.  I will revisit the case at the earliest possible occasion, following the receipt of the report, on the court’s next circuit to (omitted).

21. In all these circumstances, it is clearly inappropriate that the presumption of equal shared parental responsibility be applied to the situation prevailing in the case.  The parties are not able to exercise the applicable responsibilities consensually, as they do not communicate.  In addition, each has raised significant criticisms of the parental insight of the other.

22. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     2 March 2017