Raycliff and Nilssen

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYCLIFF & NILSSEN

[2013] FCCA 393

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged almost six years – allegations of family violence – meaningful parental relationship – father seeks overnight time pending final hearing in October – presumption of equal shared parental responsibility – best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60CC; 61DA; 65DAA

Raycliff & Nilssen [2012] FMCAfam 901
Goode & Goode (2006) FLC 93-286

Applicant:

MR RAYCLIFF

Respondent:

MS NILSSEN

File Number:

ADC 1801 of 2012

Judgment of:

Judge Brown

Hearing date:

21 May 2013

Date of Last Submission:

21 May 2013

Delivered at:

Adelaide

Delivered on:

30 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Childs

Solicitors for the Applicant:

Matthew Mitchell

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Ann Josephson

ORDERS

The application filed 13 March 2013 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Brown delivered this day will for all publication and reporting purposes be referred to as Raycliff & Nilssen.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1801 of 2012

MR RAYCLIFF

Applicant

And

MS NILSSEN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment should be read in conjunction with earlier reasons for judgment delivered on 18 June 2012.[1]
[1] See Raycliff & Nilssen [2012] FMCAfam 901
The applicant in the proceedings is Mr Raycliff. He was born in 1951, in (country omitted). He has lived in Australia since 1969.
The respondent is Ms Nilssen. She was born in 1981, in (country omitted). She moved to Australia in 2007, shortly before the birth of the parties’ child X, born (omitted) 2007.
These proceedings are concerned with further interim parenting arrangements for X, particularly whether she should begin to spend overnight time with her father.
The proceedings have been on foot since 15 May 2012. A first interim hearing took place in mid-July 2012, some three months after the parties’ final separation in April of 2012.
At that stage, it was ordered that the father should spend supervised day time periods with X on Saturdays. The time was to be supervised by Ms F, a mutual friend of the parties. X was to otherwise live with the mother.
Ms F subsequently provided affidavit evidence setting out her view that the time between X and her father, which she had supervised, had gone well and the child had enjoyed the time which she had spent with her father.
On 17 August 2012, the requirement for supervision was lifted. Otherwise, it was ordered that the child should spend from 9.30am until 4:30pm each Saturday with her father, as well as on regular Wednesdays during the school holidays.
X was to be exchanged between the parties, in the foyer of the (omitted) Police Station. This exchange point was indicative of a significant level of mistrust between the parties.
On 17 August 2012, it was also ordered that a family report be prepared, in conjunction with the final hearing of the matter on 25, 26 and 27 February 2013.
The family report was prepared by Dr A, a family consultant with tertiary qualifications in social work, who has been writing family reports, for this court and the Family Court for many years. Dr A’s report was released to the parties in late October 2012.
Regrettably, the final hearing did not proceed in February 2013, as the court was unable to reach, due to the pressure of other cases. It has been refixed for final hearing in October of 2013.
Since the release of the family report, the parties have been able to negotiate the father spending time with X, during school holidays and on special occasions, but these periods have been confined to day time periods only.
The applicable orders now provide for X to be exchanged at the (omitted) police station, which is more convenient for both parties. Pending the further final hearing, Mr Raycliff seeks to spend overnight time with X on alternate weekends.
At present, Mr Raycliff spends from 8.30am to 5.30pm, on each Saturday, during school terms with X. In addition, during school holidays, he spends time with her on each Tuesday and Thursday for the same nine hour period. He speaks with her, via the telephone, on each Tuesday and Thursday, for about fifteen minutes on each occasion.
In lieu of this arrangement, Mr Raycliff seeks to spend time with X, on alternate weekends, from 9.00am Saturday until 5.00pm the following Sunday. From Mr Raycliff’s perspective, one of the advantages of this arrangement would be that it would enable him and X to attend church together on alternate Sunday mornings.
The mother opposes this application. It is her position that it would not be in X’s best interests to spend time with her father, in an overnight setting, at this stage. Her position is strongly influenced by the recommendations of Dr A, who did not support overnight time between X and her father, until such time as Mr Raycliff had concluded a “therapeutic intervention with a focus on family violence”.
The major factual issue, which will be examined by the court at final hearing, concerns the nature of the parties’ marital relationship. The mother’s position is that there was a marked power imbalance between the parties and their relationship was characterised by coercive and controlling family violence, of which she was the victim. The father denies that he was ever violent towards the mother.
The mother grew up in a rural setting in (country omitted). She left school at aged ten, at which stage she began to work on the land. The implication of her evidence is that her life was one of significant deprivation.
The father was born in (country omitted), but migrated to this country, with his family, when he was eighteen years of age. He completed a (omitted) apprenticeship, as a young man, and has been employed as a (omitted) ever since. He has been a member of the (omitted) for approximately twenty-two years.
At the present time, the father is a self-employed (omitted). He owns a small farm in the (omitted), where he keeps (omitted). I accept that he is very proud of his farm and the achievement it represents.
The father speaks English fluently. The mother does not. She has required the assistance of a (country omitted) Interpreter in the proceedings to date. It is her position that she is a significant disadvantage, in Australia, because of her lack of English and the fact that she is not a part of the cultural mainstream.
The parties met in (country omitted) in 2002. They subsequently married, in (country omitted) of (omitted) of 2003. The father returned to Australia but returned to visit regularly. The father gave the mother’s family the sum of $4,000.00 to assist them building a toilet and bathroom for their house. The implication of the mother’s evidence in that regard is that the marriage between the parties was, at least in part, motivated by financial considerations.
The mother migrated to Australia, in May 2007, as a result of the father’s sponsorship of her. It was a condition of the mother’s visa that the father support her economically and pay for her to have English lessons.
When the mother arrived in Australia, she began to live with the father at his farm. X was born two or three months later. In 2008, the mother began casual work on a (omitted) farm in the area. She also did some casual (omitted), including for Ms F.
Significant evidentiary disputes arise between the parties regarding care arrangements for X in her early years. The father’s position is that he was equally involved in caring for X, particularly when the mother was at work.
The mother does not agree. It is her case that the father left all caring responsibilities, for the child, to her, as well as the performance of all household duties and that the father was frequently away with the (omitted).
For his part, the father asserts that the mother began to spend more and more time socialising with people she had met at her work and less and less time providing for X. He is also critical of the standard of care, which the mother provided for the child, asserting that it was deficient, particularly in respect of the provision of nutritional and dental needs for X.
The mother asserts that the father rigorously controlled all aspects of her life and deprived her of any financial autonomy. She alleges that he took her earnings and would not provide her with any money. She also alleges that the father subjected her to “verbal put downs” and kept her lonely and isolated at home.
The mother characterises the father as an angry and controlling man. It is her evidence that she is frightened of him. She alleges that, immediately prior to the parties’ separation, when she asked what he would do if she left him, he threatened to shoot her in the head. Given his connection with the (omitted), the mother’s evidence is that she took this threat seriously.
The period surrounding the parties’ final separation was traumatic for all concerned. The mother left the former matrimonial home with the assistance of a domestic violence service. She and X were housed in emergency accommodation in the (omitted) suburbs of Adelaide. Their location was kept secret from Mr Raycliff for a number of weeks. During this period, the mother also applied for a domestic violence order against the father, which was granted.
As previously indicated, the father denies that he has ever been violent towards the mother. In his affidavit material, he acknowledges that he was very upset, when the parties separated. He refutes any suggestion that he has or will attempt to influence X against her mother.
It is the tenor of Mr Raycliff’s evidence that relations between him and Ms Nilssen are becoming easier. He asserts that the mother has, on occasions, dropped X over to his home earlier, when she has had to work. On these occasions, the child has slept in her bedroom, at his home. As such, the parties are no longer tied to exchanging X at a police station.
Mr Raycliff has also deposed that he has commenced a post-separation parenting course – Kids R First – offered by Anglicare. He is also planning to attend a positive parenting program, which includes an anger management component. He does not, however, concede that he has any specific need to attend such a program, given his disavowal of any family violence in this matter.
The mother concedes that she has provided X, to the father, whilst she has been working, in the early mornings, particularly during school holidays. She has also provided X to the father on a couple of Sunday mornings and the two have gone to church together.
The mother has recently raised complaint about the number of persons, whom she understands are currently living at the father’s home. The father has deposed that three other people, who appear to be from (country omitted), are sharing his accommodation. They are apparently working at a nearby (omitted) farm. He denies that there is any emotional relationship between him and any of these persons.
The mother also asserts that X has told her that she believes she will be living with her father, once the court proceedings are concluded. In this context, the mother is fearful that the father is attempting to influence the child against her.
Prior to the aborted final hearing, in February of 2013, it was ordered that the parties attend a child dispute conference, to ascertain whether the recommendations of Dr A would assist them to reach a consensual resolution of the matters between them.
This conference was ordered pursuant to the provisions of section 11F of the Family Law Act. As such, its contents were not confidential and I was provided with a brief memorandum, in respect of it, by the consultant who convened the conference, Ms B.
At the conference, the parties agreed that the father was having additional time with X and she was now being exchanged at the parties’ respective homes, rather than at a police station. At the conference, the father continued to dispute the allegations of coercive and controlling behaviour, made against him. He also indicated his unwillingness to attend any process of therapeutic counselling, regarding violence, as recommended by Dr A.
To Ms B, the mother maintained her position that the father continued to seek to control her and was placing X under pressure to disclose her mother’s movements to him. As such, she continued to fear that Mr Raycliff was seeking to align the child with him, against her. In this context, she was opposed to the father spending any overnight time with the child.
For his part, Mr Raycliff seeks, at final hearing, that the parties have shared care of X and that she moves between living at her parents’ respective households on a week about basis. In the alternative, he would want the court to make orders which were to see X spending more time with him. It is his position that such an outcome would be congruent with the child’s views and he wishes the child to be reinterviewed to establish this state of affairs.
Given the difficult and mistrustful circumstances of the parties, the polarised positions of the parties and the untested nature of their respective allegations against one another, the family report and the recommendations of Dr A are crucial. In this context, I note that Dr A’s report is now approximately seven months old and she is not the ultimate adjudicator of the factual disputes arising between the parties. That responsibility rests with the court.
Dr A described the mother as being gentle and quietly spoken. She was further described as being emotionally driven by her earnest wish on the one hand, for X to spend more time with her father, and on the other by her concern that the father seemed to have been strongly influencing X against her. One example of this is that the child has allegedly informed her mother that Mr Raycliff has told her that “her mother tells lies”.
Dr A described the mother’s feelings about the issue of X’s relationship with her father as follows:
“Ms Nilssen described how she would be very prepared to have X spend more time with her father if indeed the child did not appear to return variously confused, misinformed, vexatious or contrary from her father’s care. Ms Nilssen described X bursting into tears and confessing she had indeed falsely told her father that Ms Nilssen had kissed some person after the child had been questioned by her father about her mother’s activities. It was, reportedly, because of X’s apparent belief in her father’s reports of her mother’s alleged poor behaviours, and other similar types of information the child had heard from her father, that Ms Nilssen has been troubled. One of the most concerning aspects of Mr Raycliff’s influence on X, reported Ms. Nilssen, was that he has told X that she should not make friends with anyone while the child is with her mother because the child should stay away from people whom Mr Raycliff has deemed unworthy. Ms Nilssen has invited X to make friends with children at play and X has refused saying her father had instructed her not to make friends. Ms. Nilssen is troubled to the extent that she fears for the child’s wellbeing and their mother-daughter relationship if Mr Raycliff continues to allegedly engage the child in these likely emotionally and psychologically harmful ways.”[2]
[2] See family report of Dr A dated 30 October 2012 at paragraph 18
In this context, Dr A noted that the parties’ relationship was marked by a significant age difference and, since the time the parties had been involved with one another, the father had apparently influenced all the significant outcomes in the mother’s life, including her departure from her family of origin and cultural and linguistic milieu.
In this context, it was Dr A’s perception that the mother seemed to have only assumed some independent decision making in respect of her life, after the parties had separated, in April of 2012.
Essentially, Dr A noted the apparent power imbalance in the parties’ relationship and did not dismiss the mother’s concerns that Mr Raycliff might be attempting to portray the mother to X as a dishonest and unfaithful person. As a consequence, Dr A considered it likely that the child had already been exposed to conflict between her parents.
To Dr A, the father was critical of the mother’s parental capacity and level of insight, particularly because she had withheld X from him, for approximately three months, after the parties had separated. He himself did not apparently describe, to Dr A, the ways in which he might be willing to encourage a close and continuing relationship between the child and her father.
Dr A described a comfortable interaction between father and child, but noted X became more confident and happy and assumed a more communicative demeanour, with her mother. Dr A conceded that it might be possible that the child was discomforted by the observation process itself.
In her evaluation of the family, Dr A opined as follows:
“… X appeared at present to have a meaningful relationship with each of her parents. It appeared difficult however, to determine to what extent Mr Raycliff reportedly might try to align the child’s affections towards him by denigrating Ms. Nilssen and her friends to the child. Such denigration would likely be at the expense of the child’s relationship with her mother and to the detriment of the child’s secure attachment to both her mother and father.”[3]
[3] See family report of Dr A dated 30 October 2012 at paragraph 42
Putting aside the issue of negative communications being put to X, about her mother, by Mr Raycliff, Dr A considered that both parents had the capacity to provide for the child’s emotional, intellectual and other needs. However, the issue of possible parental denigration loomed large for Dr A, who wrote as follows:
“… If Mr Raycliff is deemed, perhaps through the benefit of testing the evidence through further litigation, to have likely denigrated Ms. Nilssen to the child and or questioned the child over her mother’s activities including her place of living, then his capacity to provide for his daughter’s emotional and psychological developmental needs might well be considered lacking and likely to offer the child psychological detriment over time.”[4]
[4] See family report of Dr A dated 30 October 2012 at paragraph 47
In this context, Dr A recommended that X continue to live with her mother and spend weekly periods of time, during the day, on Saturdays and during school holidays, with her father. Such arrangements to continue until:
“…Mr Raycliff has concluded therapeutic intervention with a focus on family violence – possible therapists might be reached at (omitted) at (omitted) or (omitted) in Adelaide. Mr Raycliff to be required to provide evidence of completion of a family violence program to the Court if the matter returns to Court for further litigation.”[5]
[5] See family report of Dr A dated 30 October 2012 at paragraph 55
It is this recommendation, which frames the current controversy between the parties. The mother is content to accept the recommendation. Mr Raycliff is not. It is his position that ultimately the court will determine that the mother’s allegations are either concocted, exaggerated or have originated with others associated with the mother.

The legal principles applicable

The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].

As previously indicated, the final hearing of the parties competing applications has been reallocated for late October of this year. This hearing will provide the forum for the resolution of the factual issues between the parties, in particular what was the nature of their relationship. The court’s obligation is to fashion the orders it considers will best serve X’s interests, bearing in mind the limited and untested nature of the evidence available to it.
Section 60CC creates two classes of considerations which apply to the courts determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely;
(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.
Prior to the recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depended on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is directed:
“in applying the primary considerations… to give greater weight to section 60CC(2)(b).”
This is the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence.”
In his submissions to the court, counsel for the father lays particular emphasis on the benefits of X having a meaningful level of relationship with her father. From the father’s perspective, this relationship will be enhanced if the two are able to spend more time together, in a variety of different settings. These settings will include preparing X for bed; tending to her needs during the night; and attending church on Sunday morning. Mr Raycliff’s church is an important social and religious setting for both him and X.
It is Mr Raycliff’s view that, at the present time, the limited time he spends with X, which in his view is unnaturally confined to day-time periods, is insufficient to allow him to have a warm and intimate relationship with his daughter and accordingly is short of the meaningful level of parental relationship envisaged by the applicable legislation.
For obvious reasons, the main focus of the mother’s case is on the primary consideration dealing with the protection of children from the deleterious physical and psychological consequences of being exposed to family violence. In this regard, she places significant emphasis on Dr A’s assessment, particularly her view that it is likely X has been exposed to family violence.
As such, the mother contends that it is incumbent on the court to adopt a cautious approach to extending the father’s time with the child, at this interim stage, particularly given the father’s apparent opposition to undergo the course of therapy, which Dr A has unequivocally recommended as being necessary in this case. As such, by necessary implication, it is the submission of the mother that this demonstrates a lack of insight on Mr Raycliff’s part into the possible dangers of both his conduct and attitude towards the mother.
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.”
Interestingly, 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;
·Repeated derogatory taunts;
·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member concerned.
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.
If the court accepts the mother’s evidence that the father has persistently denigrated her both personally and to X; has threatened to kill her with a firearm; and has unreasonably restricted her level of financial support; it must follow that the court will find that Mr Raycliff has inflicted family violence on Ms Nilssen. As a consequence of the structure and intent of the Family Law Act, such a finding must have significant implications for any orders, which the court ultimately makes in the case.
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”. In this case, it is the mother’s case that X has been exposed to some species of family violence, not the least of which is some form of denigration of her mother.
In addition, the amending legislation has provided a new definition of “abuse” for the purposes of the Act. The definition now includes causing a child to suffer “serious psychological harm, including…when that harm is caused by the child being subjected to, or exposed to, family violence..”
At this stage, given the truncated nature of the hearing available at the interim stage, the court is not in a position to make concluded findings of fact about whether either the mother or X have been exposed to family violence. In addition, given the provisos in Dr A’s report, it is not possible for the court to determine definitively whether X has suffered any psychological damage as a consequence of the relationship between her parents.
However, the provisional and untested nature of the evidence does not absolve the court of its responsibility to consider the issue of family violence and the potential dangers it represents to a child of X’s age. Rather, the court’s responsibility is to assess the degree of risk raised in the case itself and put in place orders which are commensurate with the degree of risk as assessed.
The additional criteria relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorized as additional considerations.
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.
There is 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. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[6], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[6] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·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 interim proceedings only, if it would not be appropriate to apply the presumption.
·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 and conclusions

The advance in time, pending final hearing, sought by the father, is relatively modest. Rather than spending eight hours per week with X, he seeks to spend thirty-two hours with her each fortnight. For much of that time it is to be expected that X will be asleep. The father’s application occurs against the background of the mother being prepared to allow the father to have additional time with the child outside the framework of the existing orders.
If the father is denigrating the mother to the child, it is difficult to see that the additional time sought will enable the father to advance his campaign against the mother significantly. On the other hand, I accept that the father’s proposal does have the potential to add a level of depth and intimacy to his relationship with X.
Being able to put X to bed, prepare her evening meal and breakfast, will enable X to feel that her father is more involved in day to day aspects of her routine. In addition, given the significance of church to the father, the opportunity for X to accompany her father to the Sunday morning service will also add meaning.
On the other hand, the concerns raised by the mother, which are supported by Dr A are significant. Dr A did not consider that the mother was opposing the father spending time with X for her own ulterior motives or to satisfy her own emotional needs. To the contrary, Dr A considered that the mother wanted X to spend time with her father, provided she could be psychologically safe. In my view, this is a significant factor in the case.
Historically, on any prima facie examination of the matter, there is a significant imbalance in the nature of the parties' relationship. Their backgrounds are diametrically different.
On the one hand, the father is fully inculturated into the Australian mainstream. On the other hand, the mother is a fairly recent arrival to this country, who speaks English poorly.
There is also a significant discrepancy in their ages and it appears that the father has been influential in making many decisions concerning the mother, not the least of which was her decision, whilst in an advanced state of pregnancy to immigrate to Australia.
Against this background, it is difficult to dismiss the mother’s claim of a coercive and controlling relationship, at the interim stage. As I have previously indicated, the applicable legislation directs the court to give primacy to considerations relating to family violence, notwithstanding the central importance to children of maintaining a meaningful level of relationship with both parents.
In this case, given the difficult and conflicted relationship between the parties, I have come to the conclusion that it would not be appropriate to apply the presumption of equal shared parental responsibility to X’s care. I note that the court is specifically directed to disregard any application of the presumption, at the interim stage, when it comes to final hearing [section 61DB].
Dr A accepts that X has a reasonably good level of relationship with her father. Her impression was that the child interacted comfortably with her father. However, it is the tenor of Dr A’s report that she considers X is more emotionally and physically dependant on her mother at present.
In my view, this factor, when combined with X’s still young age and the significant allegations made by the mother, dictate that the court should take a cautious approach in the matter, particularly given that the final hearing is only around five months away. In this period, I am satisfied that the father and X can maintain a consistent level of relationship with one another.
The father may well have valid reasons for resisting Dr A’s recommendation that he undergo a particular course of therapy directed to family violence. From his perspective, I can well understand that his adoption of the recommendation may be perceived by him as an admission of fault, where no fault exists.
During the course of counsel’s submissions, I indicated that my impression of Mr Raycliff was that he was a proud person. I do not mean this in any pejorative sense. However, given his character, it may be the case that it is difficult for Mr Raycliff to undergo a course, which he considers to be both unnecessary and insulting.
On the other hand, if the mother’s allegations are accepted, such a refusal may also indicate a lack of insight on his part regarding the potential harm which may come to X, if Mr Raycliff continues to expose the child to his essentially negative view of Ms Nilssen.
As I am at pains to point out, the resolution of this central issue must await the final hearing. It is a complicated and nuanced issue. On that basis, I have reached the conclusion that a proper consideration of X’s best interests must dictate that the court takes a cautious approach at this stage. For that reason, I will dismiss the father’s application in a case and make no further order.
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 ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 30 May 2013

[2013] FCCA 393

30 May 2013

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Civil Procedure

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