Pedroza & Talevski

[2021] FCCA 1305

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pedroza & Talevski [2021] FCCA 1305

File number(s):

ADC 1452 of 2021

Judgment of:

JUDGE BROWN

Date of judgment:

15 April 2021

Catchwords:

FAMILY LAW – application for review of a decision made by a Senior Registrar – hearing de novo – interim hearing – nature of an interim hearing – where parties were never married – where status of the relationship is in dispute – domestic and family violence – parenting arrangements for child who is an infant – best interests of the child – assessment of risk – application of the paramountcy principle

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CC, 60CC(2A)
Federal Circuit Court Act 1999 (Cth) s 104
Federal Circuit Court Rules 2001 (Cth) r 20.03

Cases cited:

Goode & Goode (2006) 36 Fam LR 422

Marvel & Marvel (No 2) [2010] FamCAFC 101

Number of paragraphs:

67

Date of last submission/s:

15 April 2021

Date of hearing:

15 April 2021

Place:

Adelaide

Solicitor for the Applicant:

Adelaide Family Law

Counsel for the Applicant:

Ms Ross

Solicitor for the Respondent:

The Law Offices of Elizabeth Temnoff

Counsel for the Respondent:

Mr Bowler

ORDERS

ADC 1452 of 2021

BETWEEN:

MS PEDROZA

Applicant

AND:

MR TALEVSKI

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	15 APRIL 2021

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1.The child X born in 2020 live with the mother.

2.The father spend time with the child as follows:

(a)each Tuesday and Thursday between 2:00pm and 5:30pm;

(b)each alternate Saturday commencing Saturday 17 April between 2:00pm and 5:30pm; and

(c)each alternate Sunday commencing 25 April 2021 between 2:00pm and 5:30pm.

3.The child be exchanged between the parties to give effect to these orders at the McDonald’s Restaurant, Suburb B.

4.Orders 4, 5, 6 & 7 of the orders of Senior Registrar continue.

5.Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 27 May 2021 at 9:30am, to discuss the care, welfare and development of the child X born in 2020 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

6.The hearing before Senior Registrar on 20 April 2021 be vacated.

7.Further consideration of the matter is adjourned to 3 June 2021 at 9:30am for directions NOTING the parties are to dial in on 1800 132 423 followed by 7076931952 #.

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 under the pseudonym Pedroza & Talevski is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered ex tempore)

JUDGE BROWN:

1. The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. The reasons have been corrected and errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.

2. It is an application for review of a decision of Senior Registrar Heuer which was made on 1 April 2021.  The procedures for such reviews are set out in section 104 of the Federal Circuit Court Act 1999 (Cth), and rule 20.03 of the Federal Circuit Court Rules 2001 (Cth).

3. Essentially, what occurs is that there is a hearing de novo.  What that means is that I am required to consider all of the material which was before the Senior Registrar, together with any additional material, and conduct a fresh hearing, and after that hearing, make the orders that I consider appropriate in light of that evidence.  So in short, I am not bound by the decision of the Senior Registrar in any way, and my obligation is to consider the material afresh.

4. However, to a very significant degree, I am in the same position as was the Senior Registrar.  I am dealing with a contested interim application which relates to care arrangements for a young child.  The case arises at a point of extreme crisis in the family concerned.  Against that background, each party, I suspect, has hastily prepared their affidavit material. 

5. What is notable about the material before me is what is not there, as much as what is.  It seems to me that there are likely to be many other witnesses who are interested in the outcome of this case who have not as yet provided any affidavit evidence.  In no particular order of priority, those witnesses are likely to be the mother’s parents, with whom she lives, and the father’s parents, who, it would seem, have undoubtedly had a significant degree of involvement in the care of the child concerned.  I do not have any evidence from those individuals.

6. More significantly, at the interim stage, I have no expert evidence from a social worker or a psychologist who may be able to provide advice as to what are appropriate developmental outcomes for the child concerned.  In due course, if this matter proceeds further, it is likely that there will be a Family Report.  In addition, it is likely that there will be more extensive documents provided by authorities with whom the parties have been in contact in the past.

7. Most significantly of all, at this interim hearing stage, I have not seen either of the parties in the witness box.  I have not seen them being asked questions they may find it difficult to answer.  At this stage, I am not in a position to make a finding as to who of them is likely to be the more truthful witness.  I am not in a position to make a finding as to who is the more insightful parent.  If those findings have to be made by me, they are likely to be made in the context of a more exhaustive hearing, occupying perhaps days rather than hours, which will occur at some unspecified date in the future.

8. Although an interim hearing is essentially different in its nature to a final hearing, the legal principles I have to apply are the same.[1]  I have to be satisfied that whatever order I make, it is in the best interests of the child concerned.  In this case, each of the parties has raised significant issues about the risks for the child concerned of spending time or living with the other parent concerned. 

   [1] Goode & Goode (2006) 36 Fam LR 422, 441 [66] (Bryant CJ, Finn and Boland JJ), quoting In the Marriage of C (1998) 22 Fam LR 776,780 [18] (Ellis, Lindenmayer & Jordan JJ).

9. This is essentially a case about risk.  Although all the evidentiary pieces of the case are not as yet in place, I cannot defer the assessment of the risk to some later stage.  However, the parties need to bear in mind that any orders I make today – as, indeed, was the case with the Senior Registrar – are provisional in nature. That is, they will stand until more evidence is to hand and it is or is not necessary to change them.

10. The Full Court of the Family Court, in a case called Marvel & Marvel (No 2),[2] in my view, eloquently summarised the difficulty which arises for courts at this early interim stage. The Full Court said as follows:

    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.[3]

    [2] [2010] FamCAFC 101.

    [3] Ibid [120] (Faulks DCJ, Boland & Stevenson JJ).

11. Accordingly, at this stage, I am not in the business of trying to please or placate one or other of the parties.  I have to focus on what is best for the child concerned.  That is extremely difficult, because at this stage, the parties disagree about practically everything, and as I will outline in due course in a moment, their affidavits are – particularly in the case of the father – they are not particularly complete.  As I have already indicated, I am satisfied there are many other individuals who have things that are likely to be significant.

12. After those introductory comments, it is now appropriate for me to come in more detail to the parties concerned.  They are Ms Pedroza, who was born in 1982, and Mr Talevski, who was born in 1983.  They are the parents of X, who was born in 2020. 

13. Accordingly, in my view, the most important and significant factor in this case, and which cannot be in dispute, is X’s age.  He will be eight months in about two or three weeks time.  Accordingly, he is a very young infant who must be, as a consequence of his age, extremely vulnerable.  X will not be able to tell anybody if he is at risk of harm.  He will not be able to signal his distress in words.  He can only do that by his behaviour.

14. The parties have never been married, and as with many things in this case, the status of their relationship is in dispute.  The mother says it was never a de facto relationship, and it was an on-and-off-again relationship. What appears to be comparatively clear is that whatever relationship the parties had came to an end on 14 March 2021, although today I was told that the parties had spent an intimate period together recently.  Again, whether that is so or not, I do not know.  Indeed, what is relevant is that I do not know.  From the mother’s perspective, the parties’ relationship ended in very difficult circumstances on 14 March 2021.  That was the background to her seeking orders in the Court on 25 March 2021, some nine days later.

15. Given the orders she sought in her application – which were that she have sole parental responsibility for X, that the child be delivered up to her, and thereafter, he live with her and have only supervised time with his father – the application was listed urgently.  It was listed urgently before Senior Registrar Heuer on 1 April 2021.  And as I say, it is the decision of the Senior Registrar on that day which is subject to review in these proceedings.

16. There is a requirement – under the provisions of the Family Law Act 1975 (Cth) (the Act), which governs these proceedings – that each party in a case involving allegations that a child is at risk, in respect of being exposed to family violence or other forms of abuse – such that any party alleging such a thing file a formal notice to that effect.  The mother did so, and her notice of risk was filed with her application.  She alleged, in her notice of risk that X and herself were subject to a risk of being subject to both abuse and family violence.  She asserted that she had been subject to family violence, that X had been subject to family violence, and that there was an ongoing risk of that.

17. She asserted that her allegations had been reported to the South Australian Police and a medical practitioner.  She also asserted that the father was a habitual consumer of methylamphetamine and behaved in an erratic manner.  In this context, she alleged that she had been subject to physical assaults, many of which had not been reported because of underlying and ongoing mental abuse and coercion of the mother by the father, and the difficulty the mother has experienced in obtaining any practical support from the police.  Accordingly, it is the mother’s position that the parties’ relationship was one which was characterised by coercive and controlling behaviour of her by the father.

18. She concedes that that behaviour has not been subject to significant report to police.  I am aware that, for all sorts of reasons, the victims of family violence may not report it to the authorities.  That does not necessarily indicate that the behaviour complained of is not serious or should not be given some weight in interim proceedings by the Court. 

19. As with all issues to do with risk, it is the responsibility of the Court to look at what is alleged, look at the circumstances surrounding the allegations concerned, including the detail that is provided and is there some explanation as to why the authorities have not been engaged.  Merely because there is not a report to police does not warrant the Court itself saying that the allegations are unwarranted or unfounded.

20. Significantly, when the mother commenced these proceedings, she filed an affidavit with the assistance of her solicitor.  The affidavit is 45 paragraphs long.  It occupies about eight complete pages.  It – as far as I can see – is in accordance with the practice direction regarding the length and size of print prescribed by the practice directions.  In my view, Ms Pedroza and her solicitor have endeavoured to provide a clear and understandable narrative of what was the history of the parties’ relationship with each other.

21. Ms Pedroza deposes that she has been, overwhelmingly, X’s primary carer since his birth.  She deposes that, even when the parties were living together or spending time together, she was the one who put X to sleep, fed him, dressed him, and cared for him.  She described the relationship between her and the father as “on again, off again”, which was in place for portions of 2018 to 2021. 

22. Ms Pedroza says she stayed at Mr Talevski’s home from time to time, but the relationship between the parties was so volatile that, frequently, she was based at her parents’ home at Suburb C.  As I have already indicated, Ms Pedroza’s parents, if that is the case, are likely to be important witnesses in the case, particularly in respect of how X was cared for in the few short months since his birth.

23. It is the mother’s case that the father left care arrangements for X to her for relatively long periods of time, then became involved in the child’s life and then would not return him.  In her case, that was a pattern that the father utilised to obtain what he wanted, particularly in terms of X’s care. 

24. The mother describes a volatile and difficult relationship between the parties, and one which was not child-focused.  During the parties’ relationship, she asserts that she was subject to frequent emotional abuse, coercion, and on at least three occasions, was physically assaulted.  She asserts that the father attempted to strangle her.  Again, whether that is true or not I am not in a position to say, but any allegation of strangulation is a matter to which I must give significant weight, in terms of assessing risk.

25. It is the mother’s case that the parties ended their relationship at one stage shortly prior to X’s birth.  She asserts that the father would not allow her to take her personal belongings with her but left them on the street.  Whether that is so or not, I am not in a position to say.  I note for the record that Mr Talevski is smirking, and clearly, he does not accept that that is the case, which, of course, is his prerogative.  It is the mother’s case that after X was born, the father was disinterested and decamped from being involved with him for a period of time until late December, when the parties attempted to reconcile.

26. At that stage, it is the mother’s case that there was an unfortunate incident.  It is her case that she was evicted or could not get into the home where X was.  She could hear him crying.  She was distressed, and she asserts that she drove her car into the gate of the father’s parents’ home so she could get the child. 

27. It is the father’s case – and I will come to his evidence in more detail in a moment – that the mother was severely intoxicated at the time, and he was acting protectively in respect of the child.  That is yet another of the many issues in dispute between the parties.  The mother says that this is an action she regrets, but explains it by the fact that she was upset.

28. Accordingly, it is the mother’s case that the early months of X’s life were extremely turbulent.  She says, after the child was born, that the father had little to do with the child.  Then there was a period when he was involved, but it was marked by extreme conflict.  X was apparently breastfed in his early weeks but was also being fed formula.  It is the mother’s case that when X was not returned as she expected, she expressed milk, but in late January 2021, decided that was untenable, and X was weaned.

29. For reasons which are extremely delicate and sensitive, and which I will not specifically reference in these reasons for judgment, the mother was medically indisposed in mid-February.  She was traumatised and in shock.  It is her case, as I understand it, that she did not receive a great deal of support. 

30. Notwithstanding that, the parties apparently again reconciled, but the relationship came – on the mother’s case – to an end, as I say, on 14 March, when the father went with X to his parents’ house.  It is the mother’s case that since that date, she went to the father’s house to see if she could retrieve X.  She was not able to.  On 16 March, she returned again.  She asserts that there was an altercation between the parties, and she was grabbed by the right arm and thrown onto a concrete path.

31. The mother understands that a relative of the father took X to the doctor she attends on 22 March 2021 for a check-up, and in the light of allegations that the mother was suffering from postnatal depression.  The mother denies that she is feeling depressed, and in any event, whether that is so or not and what the medical material is, I have not been provided with any of it. 

32. That was the background to the mother commencing these proceedings, and as, in my view, was clearly appropriate, the proceedings were listed urgently before the Senior Registrar.  I suspect, from the mother’s perspective, that was not urgently enough.  As I say, it was a period between her application and the end of the relationship – a period of about nine days – and then a further period of about five or six until the matter came into Court, about a fortnight.

33. It is the submission of Mr Talevski’s counsel that the mother has not alleged that the child came to any harm or suffered any neglect during this period of time, and that is so, but that must be viewed in the light of the mother’s case that she has been the child’s main provider of care. 

34. Even if that is not necessarily true, it is clearly the case that she was involved on a day-to-day basis with this child’s care.  The case came before the Senior Registrar on 1 April.  Obviously, it was replete with high emotion.  I accept that was the case, and the task before the Senior Registrar – as is the task with me – was extraordinarily difficult.

35. As a result of protocols between the Court and the South Australian Police and the Department of Child Protection, it is possible for the Court to quickly receive shorthand information about parties in the proceedings before it.  That makes obvious good sense.  Under the laws in this country for the arrangements for children, for reasons relating to the Australian Constitution, each Australian State has responsibility for ensuring the protection and safety of children.  However, the Commonwealth, through this Court, has responsibility for adjudicating disputes between parents.  The States are also responsible, basically, for policing within each State.

36. So in terms of Child Protection, State authorities have information.  If people make complaints of child abuse and neglect, the States have that information.  If people have got into trouble with breaking the criminal law, the police forces in each State have that information.  As I say, as a consequence of protocols between the Commonwealth and the States, there are procedures for the States to give information about children and their parents to the Court in a shorthand way.  That is useful in assessing risk.  That is what it is for.

1. In this case, the Senior Registrar had information from South Australian Police and from Department for Child Protection, and her Honour’s order indicates that she released to the parties’ legal representatives the responses received from the South Australian Police and Department for Child Protection offices, both dated 26 March 2021. 

2. I have already alluded to the South Australian Police information, but in order to complete these reasons for judgment, I will note them again.  In respect of the father, the information was that he had a conviction history from 2007 to 2017, including three counts of possessing or using a dangerous article, three counts of breaching bail, three counts of driving a motor vehicle with methamphetamine in fluid or blood, driving a motor vehicle with combination of drugs in fluid or blood, and road traffic convictions.

3. More recently, the police record indicates that on 26 June 2020, the father was nominated as the suspect in an assault where he allegedly elbowed a male to the face in a service station.  The victim received a potentially broken nose/cheekbone.  The victim was said not to cooperate with police and declined to provide a statement, and the matter was finalised.  So from the police perspective, the father has a history of methamphetamine use and associated behaviour, and that is as far as the record goes.

4. The mother’s record indicates that she has nothing pending, she has no convictions, there are no adverse holdings, and she is not the subject of any intervention order.  So on any view, in terms of the parties’ respective footprints with the police, there is a marked difference between the father, on the one hand, and the mother on the other.  I acknowledge that I am not in a position to know what are the circumstances surrounding any of those matters, but from my perspective, they are significant in assessing risk.

5. The Senior Registrar determined that the child was to be returned to the mother at 2 pm on 1 April.  She also determined that, thereafter, the child live with the mother.  At that stage, the father was put on notice that if he failed to follow the order, there would be a recovery order.  The parties were each ordered to submit to urine analysis if they were requested to do so, and the order that was made indicated that that was to be supervised.  Injunctions were made restraining the parties using illicit drugs or consuming alcohol and denigrating or abusing the other.  It was a condition of the order at that stage that the mother live with her parents at the Suburb C home whilst the child was in her care.  The father was given to 12 April to file answering documents, and the case was adjourned to 20 April.

6. The child was not returned, and later on 1 April, without reference to the father, the matter was listed, and as was foreshadowed in her Honour’s orders, the recovery order issued.  It is a significant thing to issue a recovery order in respect of a child, but it seems fairly clear – and I do not think there is any great dispute – that as the order had not been followed, the father was on notice that that order had been made.  The Senior Registrar really had no alternative.

7. The next thing that occurred was that the matter was listed before me on the father’s urgent application.  As I recall, he indicated that he wished to appeal the orders or was about to appeal the orders.  It seemed to me that that was not really what he wanted to do – that he needed to file a review, and I respectfully pointed that out to him when the matter came on for Court on 8 April.  The father also wanted some more time to file answering material and get some legal advice, which I thought was sensible.  However, from his perspective, the issue remained urgent, and on that basis, the case was adjourned until today.

8. A notice of review has been filed.  It was filed on 13 April 2021.  The father seeks, in that review, that the Senior Registrar’s orders be set aside and that X be returned to his care.  He wants a parenting order granted that he be the child’s primary carer and that the mother be allowed to visit the child at times to be agreed, provided that she is sober and not affected by illicit drugs.  Thereafter, he proposes some time at a children’s contact centre.  I should say that the learned Senior Registrar, in her first order of the 1 April, made an order that the father spend time with the child each Sunday and Wednesday from 10:00am until 2:00pm, with the child to be exchanged at the Suburb D Police Station.

9. This morning, I am told by the father’s counsel that the orders sought in his review are no longer the ones that he seeks.  Rather, he seeks that the child live predominantly with his mother but spends from Friday to Sunday on three weekends out of four in his father’s care.  The mother, at this stage, proposes that the child spend two hours, from 3 till 5, on each Tuesday and Thursday, with that time to alternate between Saturday and Sunday on the weekends, with the child to be exchanged between the parties at McDonald’s on E Street, Suburb B.  She agrees to continue living with her parents in Suburb C, and it is her understanding that the father is living with his parents at Suburb F.

10. On 15 April, the father filed a lengthy affidavit that appears to have been prepared by him.  He says, in contrast to the mother, that during the first five months of X’s life, the mother lived with him at his home in Suburb F.  He denies that the mother was the primary carer of X – that he was more involved with X than the mother, other than when he was being breastfed.  It was his case that he had to take over the child’s care because of the mother’s consistent alcohol and regular illicit drug-taking consumption.  It is his case that the mother went to stay with her home only when he demanded that she stop using drugs and abusing alcohol, which resulted in her becoming argumentative, rowdy, and abusive.

11. In terms of the gate incident, it is his evidence that that is indicative that the mother was out of control to a significant degree because of alcohol abuse.  He denies that the mother weaned X because of anything to do with him.  Rather, she asserts that she did not want to stop drinking whilst breastfeeding, so it was easier for her to stop breastfeeding than to give up alcohol.  The father says that he will address – and these are his words: ‘the more pertinent steps in my own notice of risk still to be filed’.[4]

    [4] Affidavit of Mr Talevski filed 14 April 2021.

12. It his case that:

    Due to the short period of time that I have been allocated to prepare this affidavit, I have only been able to deal with matters raised in the affidavit and not many more substantive matters and much more serious than being on record.[5]

    He complains that the mother drives around in an un-air-conditioned car, which may be dangerous for X in terms of him suffering heat convulsion.  That affidavit was deposed on 13 April 2021.

    [5] Ibid.

13. With the greatest of respect to Mr Talevski, to a certain degree, I agree with Ms Ross, counsel for the mother, that it is not completely easy to follow what has been put in Mr Talevski’s affidavit, other than he asserts he has been the primary carer other than the first month of the child’s life, or more involved in the child’s care, and that it is the mother who has the significant issues to do with alcohol abuse and methamphetamine use.

14. It is conceivably possible that, as the father asserts, he has not used drugs for a significant period of time.  He has, on various occasions, said that he stopped using when the mother became pregnant or when she was delivered with the child. 

15. That may be so.  It also may be the case that the police involvement is historical – or even inaccurate, but the fact remains that, in terms of collateral evidence, independent of the parties themselves, which indicates their respective involvement with drugs, the mother has no record.  The father has a significant record.  I note again that Mr Talevski is laughing, which, of course, is his prerogative.

16. It is also the father’s case that the mother was a member of the Employer G – I am not sure in what particular level – but was dismissed due to drug-taking and drunk driving.  Whether that is so or not I do not know, but in terms of the records that have been produced by the police, there is no such record, and the mother’s case is that she did leave the Employer G, but it was because her former partner got a posting or a job overseas. 

17. It is the mother’s case that the father has sought legal advice prior to the initiation of the proceedings and has chosen not to follow through with that advice, which is his prerogative.  She refutes his assertion that he has not had sufficient time to prepare his case.

18. It was the submission of Mr Talevski’s counsel, Mr Bowler, that the child was returned in accordance with her Honour’s orders – on Good Friday, and that is so, but it is Ms Pedroza’s evidence that that only occurred because the father and his relatives were given to understand that the Australian Federal Police were involved and the recovery order would occur. 

19. Underpinning her position is that there is reason for the Court to believe that the father will not abide by orders, takes things into his own hands, and is a difficult and oppositional person.  Again, whether that is so or not, I am not in a position to say.  His solicitor filed a notice of address for service on 14 April.  No material has been prepared.  There is nothing from any other individuals who are interested in this matter.  I say that there is similar criticisms of the mother’s case.

20. When the matter came before me on 8 April, I directed that the father undergo a supervised drug screen test no later than 4 o’clock on that day.  It was to be supervised because, regrettably, people who have a history of involvement with amphetamine use are sometimes – not always – adept at getting around drug screen tests.  People who have got a long history of amphetamine use know a great deal about the drug, for obvious reasons. 

21. There was a drug screen test.  Mr Talevski, through his lawyer, tells me that he went to his GP, did not take the order, and it was not subject to supervision.  It was negative.  From the mother’s position, through her counsel, Ms Ross, she urges me to be cautious about that issue, and given Mr Talevski’s history as it is, I have to be cautious, because fundamentally, I am assessing risk – assessing risk in an extraordinarily difficult and volatile relationship which concerns a child who is almost eight months of age.

22. The relevant legal principles are contained in section 60CC of the Act. As I say, I have to be satisfied that whatever order I make is in the best interests of the child concerned. However, in determining how that is to occur, I have to look at a long list of matters contained in section 60CC of the Act. This section creates two classes of consideration – primary considerations and a longer list of additional considerations. There are two primary considerations – firstly, the benefit to the child of having a meaningful relationship with both the child’s parents, and secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.[6]

    [6] Family Law Act 1975 (Cth) ss 60CC(2)(a)-(b).

23. As a result of section 60CC(2A), I am directed to give greater weight to protective concerns. Family violence is defined in section 4AB. It means ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful’.[7]

    [7] Ibid s 4AB.

24. It is essentially the mother’s case that during the parties’ relationship, she was frightened of the father, and that he used the child to control her behaviour.  Whether that is so or not, I am not in a position to say, but that is the significant issue in the case at this stage.

25. I also have to consider the benefits of the child having a meaningful relationship with each of his parents, and it is essentially the father’s case that he will not have a significantly meaningful level of relationship with the child if his time with the child is confined to three occasions of some hours each week.  The additional considerations are more numerous.  They include the nature of the child’s relationship with each of his parents and with other people, including grandparents.  I do not know anything about what level of care the grandparents in this case have been provided, because I have not got any affidavits from them.

26. The parties are in vehement dispute about who provided care, and who the more significant parent for the child was.  It is probably simplistic to look at the five months before the hearing on 15 April and say, who provided what care in each month.  The first month, the mother says she was there on her own.  That is 20 per cent of the child’s life.  Thereafter, it is unclear.  The father then had, it seems, 19 days in a row. 

27. The mother says, that only came about through a process of self-help.  Since the order that was made in April, the mother has had the sole care.  That is another significant portion of the child’s life.  Such a regime cannot continue.  It is clearly not in the best interests of the child concerned, and in this context, I am directed to look at the age of the child concerned.  The child is an infant.  He needs to have predictable arrangements for his care.  His arrangements for his care have not been predictable up to this stage.  I am gravely concerned about that.

28. I also have to consider the capacity of each of the child’s parents to provide for his needs, including emotional needs.  What has happened up until this stage cannot be good for this child’s emotions.  If it is the case that he was ceased from being breastfed because of the turbulent relationship between the parties, that is not a good way to parent an infant.  If he has been withheld from his mother, and his mother has become anxious, that does not indicate an insightful attitude to the responsibilities of being a parent.

29. Balancing all these factors together, I have come to the view that I am duty-bound to adopt a cautious approach.  In assessing risk, I have to look at whether some harmful event will occur and what will be its level of severity. 

30. It is true that up until this stage, there has been no indication that X has been injured or hurt, or he has not been properly fed or cared for.  That so, whether that has been as a consequence of the care provided by others, I do not know, but in emotional terms, it appears to me that what has happened up until this stage has the potential to cause him harm.

31. On that basis, it is an appropriate response to that risk that he lives more with one parent than the other.  In my view, it is also congruent with his age.  I have grave concerns that an approach which sees him moving fairly regularly, including overnight periods of time, from one parent to the other is not in his best interests.  Perhaps X is a particularly resilient and robust child; perhaps he is not.  I am not in a position to say.  Each party says that the other has got substance abuse issues.  I must take those matters seriously, but in terms of the parties coming to the notice of the authorities, as I say, it is the mother who has the clean sheet, and the father otherwise.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       11 June 2021