Raines and Grant

[2016] FamCA 293

FAMILY COURT OF AUSTRALIA

RAINES & GRANT [2016] FamCA 293

FAMILY LAW – CHILDREN – With whom the child spends time – Where the mother has not permitted the child to have any further contact with the father since July 2014 – Where the child has previously been diagnosed with Autism Spectrum Disorder – Where the mother contends that the child would have difficulty “managing” a rei-introduction to the father – The father’s time with the child to be supported by therapeutic counselling and supervision.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82
Grant & Grant [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Raines

RESPONDENT: Ms Grant

INDEPENDENT CHILDREN’S LAWYER: Mr Martin as agent for Ms Evans

FILE NUMBER: NCC 917 of 2014

DATE DELIVERED: 2 May 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Campbelltown Family Law

COUNSEL FOR THE RESPONDENT: Ms Mahony

SOLICITOR FOR THE RESPONDENT: Stanford Solicitors & Conveyancers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

Pending further order

1. The child, B (born … 2006) shall live with the Mother.

2. The parties shall have equal shared parental responsibility for the child.

3. The father will spend supervised time with the child, at either C Contact Centre in Suburb D, ACT or the E Town Contact Centre for such periods and with such frequency as can be accommodated by that service.

4. Each party will forthwith do all acts and things to facilitate time in Order 3 as follows:

   (a)Comply with any appointment made by the Contact Centre for supervised time.

   (b)       Comply with all reasonable rules of the Contact Centre.

   (c)Comply with all reasonable requests or directions of the staff of the Contact Centre.

   (d)Such time is to be implemented by the mother delivering the child to the Contact Centre at the start of the father’s time with the child, and collecting the child from the same place at the end of the father’s time.

   (e)The father and mother shall equally share the payment of the fees nominated by the Contact Centre for the provision of its service.

5. Following time in Order 3 for a period of three (3) months the father will commence spending supervised time with the child each alternate Sunday from 10am until 2pm.

6. The father’s time with the child in accordance with Order 5 above shall be supervised by the paternal grandparents, Ms F and Mr G Raines.

7. Within seven (7) days of these Orders the paternal grandparents, Ms F and Mr G Raines, are to execute and file undertakings with the Court, such undertakings to provide as follows:

   (a)That the paternal grandparents will supervise at all times the time between the father and the child.

   (b)In the event that they are both unavailable for supervised time, they will communicate their unavailability to the mother and ensure that time is not spent unsupervised unless otherwise agreed between the parties.

8. Within seven (7) days of these Orders the mother will contact Ms H, psychologist, in order to make an appointment for the child to engage with Ms H for the purposes of therapeutic counselling on a date nominated by Ms H.

9. Within seven (7) days of these Orders the mother will obtain a mental health care plan for the child from his treating general practitioner for the purposes of a referral to Ms H, psychologist, in accordance with Order 8 of these Orders.

10. Both parties will do all acts and things necessary to ensure the child’s attendance at any appointment made by Ms H, psychologist, pursuant to Order 8, and any subsequent appointment required by Ms H.

11. Any costs for the child’s therapeutic counselling with Ms H which are not covered by the Medicare rebate will be borne equally by both parties, with Ms H to invoice each party their respective share separately.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 917  of 2014

Mr Raines

Applicant

And

Ms Grant

Respondent

REASONS FOR JUDGMENT

Introduction & Background

1. The father commenced parenting proceedings in relation to the child, who is nine, as he and the child’s mother have not been able to reach agreement about the child’s future parenting arrangements.

2. The parents began living together in 2005 and in 2006 their only child, B (“the child”) was born. They were married in 2009. The family moved several times in the course of their relationship due to the availability of work in the horse training industry, in which both parents were employed.

3. The parents originally separated in December 2012, but then attempted a reconciliation, and separated on a final basis in April 2013. The child remained living with his mother.

4. For a number of months following separation the child spend time with the father as agreed by the mother. This time usually was spent at the paternal grandparents’ home.

5. In July 2013 the father was investigated in relation to a complaint that he had sexually abused the child. The complaint took four months to be investigated but was not substantiated.  During this time the mother refused to allow the child to spend time with the father.

6. In September 2013, the child was diagnosed with high functioning autism. A few months later the mother permitted the father to start spending time with the child again. Initially this time occurred at a park but later moved to overnight time which occurred at the paternal grandmother’s home on a regular basis until July 2014.

7. The mother says that in July 2014 the child made further complaints about the father’s conduct and she decided that she would not permit the father to see the child without her being present. The father did not consent to his time with the child being supervised and as a result the mother has not permitted the child to have any further contact with the father since July 2014.

8. The father commenced proceedings in February 2015 in a Local Court. At around the same time the mother and child attended an appointment with a paediatrician who expressed disagreement with the diagnosis of autism.

9. The proceedings were transferred to the Federal Circuit Court in May 2015 and were subsequently transferred to the Family Court where they were included in the Magellan program.

10. In September 2015 an independent children’s lawyer (ICL) was appointed and a Magellan report was sought from Community Services.  The report was released in November 2015.

11. In February 2016 there was a hearing in relation to the father’s interim application to spend time with the child.  He proposed that this initially be supervised at a contact centre on one day each fortnight. The father also proposed that after eight supervised sessions that this time be increased to each alternate Sunday for four hours, and that such time be unsupervised.

12. The mother sought that the father’s interim application be dismissed, but did not propose that the father spend any time with the child.  In her case outline the mother seeks an order in the alternate to the dismissal of the father’s application that therapeutic intervention commence to assess, facilitate and monitor the progress of the reintroduction of the child to the father.

13. The ICL is of the view that the child should begin spending time with his father and proposes orders that the father spend supervised time with the child at particular contact centre for such periods and with such frequency as can be accommodated. The ICL proposes that after three months the father’s time with the child be supervised by the paternal grandparents who are to execute and file undertakings in relation to that supervision with the Court. The ICL also proposes orders that the mother make arrangements for the child to engage in therapeutic counselling with a psychologist within seven days of the making of the orders for the purpose of therapy to assist with the reintroduction to his father.

The father’s case

1. It is the father’s case that the child has been deprived of the benefit of a meaningful relationship with him for over 18 months, and that no issues of unacceptable risk arise that require his time with the child to be supervised. In acknowledgement that the child needs some reintroduction to him, the father proposes that the initial time together occur at a contact centre and that therapeutic intervention be provided to support this reintroduction. The supervision proposed, it is said would overcome any issues of risk that may concern the Court.

The mother’s case

1. The mother relies heavily upon the conditions with which the child has been diagnosed.  It is submitted that the child suffers from significant difficulties when his environment is changed and needs a great deal of support. In circumstances where no therapeutic intervention has commenced it is argued that it would be against the child’s interests for that time to recommence.

The contested facts

1. The matters which are not in dispute between the parties are set out under the introduction and background above.  There are however, a number of contested facts which are relevant to this interim application.  According to the authorities[1] in addition to the uncontested facts, the Court may have some regard to the matters in dispute. 

   [1] See SS & AH [2010] FamCAFC 13; Grant & Grant [2013] FamCAFC 182; Deiter & Deiter [2011] FamCAFC 82.

2. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In this matter, the mother appears to have initially withheld the child from the father on the basis of a concern that the father had sexually interfered with the child.  As set out above the mother first made this allegation in July 2013 and a JIRT[2] investigation was carried out.  According to the mother’s affidavit the child disclosed to her that “dad punched my bum and put snot on it.  He made me take a shower and touched my doodle”.

   [2] Joint Investigation and Response Team, a specialised made up of officers of police and Community Services

4. The Magellan report indicates that Community Services has received 11 reports in relation to the child commencing in August 2013.  Three of those were identified as “risk of significant harm” reports and proceeded to secondary assessment including investigation by JIRT.  The report indicates that the sexual abuse allegations have not been substantiated and that the child was safe in his current environment [living with his mother].  The father denies all wrongdoing and it is not in dispute that he was not charged and the investigation was closed.

5. The father says that the mother made a decision in July 2014 that she would no longer permit the child to spend time with him.  He says the mother said to him words to the following effect

   [The child] is saying things again.  We are divorced.  I don’t have to speak to you.  [The child] has rights.  I am not going to let [the child] see you without me being present.

6. According to the mother the child reported to her that he did not want to go to his father’s home anymore as he had to share a bed with the father and the child’s sixteen year old half-brother.  The mother agrees that she had a conversation with the father along the same lines as he reports.  She also says that she informed the father “that [the child] was making disclosures again, however, they were the same disclosures already made.” The mother does not specify the disclosures said to have been made by the child but I infer that she is suggesting that they were allegations of an improper sexual conduct.

7. Although it appears to be beyond dispute that the reason the mother withheld the child from his father almost two years ago was due to concerns about alleged sexual harm posed by the father, she did not pursue this in opposing the father’s application for interim orders.  Although an allegation of sexual harm by its nature raises concerning matters of risk, I understand that the mother no longer contends that the father poses a risk to the child and does not oppose the father’s time with the child on this basis.

8. The other area of dispute, relates to the diagnosis of Autism and the mother’s contention that the child would have difficulties “managing” the resumed contact with his father after such a long period of non-contact.  It is contended that there is a risk of psychological or emotional harm to the child particularly due to his difficulty in managing change in his circumstances.  The mother relies upon various documents produced by the child’s school in response to a subpoena including a report by a school principal written in March 2014 around six months after the child was first diagnosed with Autism which refers to the child engaging in destructive and dangerous behaviour.  Other reports relied on include one which was written by relieving principal in May 2014 which refers to the child needing time to adjust to a new school and home setting.

9. A paediatrician’s report dated 5 October 2015 sets out the context in which the diagnosis of Autism Spectrum Disorder was made in mid-2013. At the time, the child, who had previously reported as a happy and sociable boy, making good progress with his learning, had a major change in his behaviour and he began to show significant aggression.  Various significant incidents in the child’s life are referred to including the father being involved in a very serious accident, the mother’s reports of domestic violence to which the child was exposed, the allegations of sexual assault,  the parents’ separation and the child having attended four schools in one year. In the view of the paediatrician these events, rather than autism could provide an explanation for the child’s behaviour. The paediatrician reports significant improvements in the child’s behaviour since 2015.  The Doctor described the child’s behaviour as “completely normal” during her interview and noted that he had “excellent communication skills and normal interests and behaviour for his age”.  She also added that she disagreed with the diagnosis with Autism and noted that he did not have formal Autism testing.  The paediatrician noted that she planned to review the child after three months but the mother did not make a follow-up appointment. 

10. In my view, at an interim stage, although I cannot obviously make a definitive finding as to the child’s condition and his capacity to manage a reintroduction of his father into his life, it does not seem likely that the severe impact contended by the mother on the child of resuming the relationship with his father will occur.  This is especially so when the ICL’s proposed orders provide for the child to receive therapeutic support as well as supervision for the first three months of time with the father.  Thereafter it is also proposed that the child’s time with the father be supervised by the paternal grandparents, who have significant familiarity with the child.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3].

   [3] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. These proceedings are still at an early stage. Although they have been on foot for 14 months, the child has not yet been seen by a family consultant. Under the mother’s proposal the father would have very limited time with the child after an already lengthy period of no contact.

Best interests of the child: Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

2. The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

4. Although the meaning of meaningful relationship is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[4] 

   [4] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

5. It is not in dispute that the child shared a significant relationship with the father following separation, and up until suspending any further contact the time they shared together previously included overnight time.  I do not accept the submission made on behalf of the mother that there is a lack of evidence as to the “current existence of a meaningful relationship” between the child and the father.  The child was almost eight years old when his mother ceased allowing him to spend time with his father.  There is no need in my view to assess the relationship before it is rekindled. Given the previous involvement of the father in the child’s life, it can be assumed that fostering that relationship will be of a benefit to him. 

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. As discussed above, although the case outline on behalf of the mother made reference to “the unresolved issues of risk of sexual assault in these proceedings” it was not submitted on the mother’s behalf that there was an unacceptable risk of harm to the child on this basis.  For the reasons given, in my view such a risk of harm does not arise, and in any event, the interim orders proposed by the ICL and the father provide for supervision.  There is also a suggestion that the mother alleges that she was the victim of family violence to which the child was exposed.  There is no evidence that there is an ongoing risk that the child will be exposed to family violence.

Additional Considerations

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

2. The child’s views at this stage are unknown as he has not yet been interviewed by a family consultant or expert.

3. Both of the child’s parents had a significant involvement in his life both prior to and after separation and it can be assumed that he shares important relationships with each of them.  The paternal grandparents who are proposed as supervisors for the father’s time have also clearly played a role in the child’s life as he spent overnight time in their home after separation. 

4. It is unfortunate that the mother required that the child’s time with the father be supervised and that as the father refused for this to occur there has been no time spent together since July 2014.  The father has been reasonably diligent in bringing these proceedings and seeking time with the child in the bringing of this interim application.

5. The mother is particularly concerned about the likely effect of any change in the child’s circumstances which will be brought about by his reintroduction to his father.  She relies particularly upon observations of school staff and practitioners who diagnosed the child with Autism and observed the child’s disruptive and disturbing behaviour.  A paediatrician expresses an alternate diagnosis and notes a number of disruptive features in the child’s life at the time his behaviour was observed to have changed.  The father’s proposal is for reasonably limited time which will be supervised and when it progresses to take place at the paternal grandparent’s home it will be in a familiar environment.  The child will also receive the support from a therapist under the ICL’s proposed orders.  While the child may experience some difficulties in the change in circumstances, in my view this can be mitigated by supervision and therapeutic support. These difficulties are also in my view outweighed by the likely detriment to the child if he continues to be deprived of sharing a relationship with his father. 

6. Although the mother raises practical difficulties and expense associated with the child spending time with this father, I am not of the view that these matters are so great that they are a real impediment to the orders proposed.

7. The mother raises some concerns about the father’s incapacity which she says is associated with a mental health condition said to be suffered by him.  However, there is no evidence relating to any alleged incapacity on this basis.

Conclusion

1. While there appears to have been some legitimate concerns raised about the child’s behaviour in 2013 to 2014 this behaviour could possibly be associated with significant disruption in the child’s life at that time.  The diagnosis of Autism is far from clear and none of the available evidence concerning the child’s condition supports the contention that he would be unable to manage a reintroduction of his father in his life, after almost two years that have elapsed since they last spent time together.  Prior to the mother unilaterally imposing conditions on the time with the father, which the father did not comply with, the father appears to have played a significant role in the child’s life.  In the view of the ICL, with which I agree, it is important that the relationship between the child and his father is rekindled. Under the ICL’s proposed orders this will occur with the safeguards of supervision in place and with therapeutic support.  Accordingly I am of the view that it is in the child’s best interest for the orders proposed by the ICL to be made and orders in those terms are set out at the forefront of these Reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 May 2016.

Legal Associate: 

Date:  2 May 2016