Reid and Douglas

[2016] FCCA 821

FEDERAL CIRCUIT COURT OF AUSTRALIA

REID & DOUGLAS [2016] FCCA 821

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged fifteen months – nature of interim hearing – family violence concerns – best interests – assessment of section 60CC factors in contexts of interim hearing – nature of child’s relationship with each parent – unilateral action – presumption of equal shared parental responsibility – considerations of practicality – considerations arising under section 65DAA(5).

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60CC, 65DAA

Goode & Goode (2006) FLC 93-286

Applicant: MS REID

Respondent: MR DOUGLAS

File Number: ADC 140 of 2016

Judgment of: Judge Brown

Hearing date: 22 January 2016

Date of Last Submission: 22 January 2016

Delivered at: Adelaide

Delivered on: 22 January 2016

REPRESENTATION

Counsel for the Applicant: Ms Fuda

Solicitors for the Applicant: Women’s Legal Service (SA) Inc

Counsel for the Respondent: Ms Shabbar

Solicitors for the Respondent: Websters Lawyers

ORDERS

1. The father return the child X born (omitted) 2014 to the mother this day at 7:00pm, 22 January 2016 in the foyer of the (omitted) Police Station

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The aforesaid child live with the mother.

2. The father spend time with the child each Thursday, Saturday and Monday between 1:00pm and 6:00pm with the father’s time to commence on Thursday, 28 January 2016.

3. The child be exchanged to give effect to these orders either at the (omitted) Shopping Centre, the child’s day care are as agreed between them.

4. The parties exchange information regarding the child’s welfare, including sleeping patterns, dietary patterns and health issues by means of a communication book which they shall exchange each time the child moves between them.

5. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating, rebuking or assaulting the other in the presence of the child or from permitting any other person to do so.

6. During the period of the adjournment the parties commission a suitably qualified expert to be agreed between them to prepare a family assessment at their joint expense to investigate the following:

   a.The nature of the child’s relationship with each of his parents and half siblings;

   b.The viability of a shared care regime given the child’s age and the nature of the parties’ relationship with one another; and

   c.Any other maters deemed relevant by the expert.

7. 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 14 April 2016 at 9:30am, to discuss the care, welfare and development of the child X born (omitted) 2014 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.

8. That the parties be restrained and injunctions are hereby granted restraining them from removing or causing or allowing the child X born (omitted) 2014 to be removed from the Commonwealth of Australia.

9. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child X born (omitted) 2014 from the Commonwealth of Australia.

10. The Australian Federal Police place the name of the said child X born (omitted) 2014 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list Until Further Order of this Honourable Court.

11. Further consideration of the matter is adjourned to 20 April 2016 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 140 of 2016

MS REID

Applicant

And

MR DOUGLAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally, immediately following the interim hearing concerned.  Given the controversy of the proceedings, it is appropriate that the reasons be transcribed and released to each of the parties.

2. This afternoon, I have to deal with an application in which Ms Reid is the applicant and Mr Douglas is the respondent.  The proceedings relate to the care arrangements, on an interim or provisional basis, of the parties’ child, X, who was born on (omitted) 2014. Accordingly, in a few days’ time, X will be 15 months of age. 

3. By way of background, the applicant mother is a person who was born on (omitted) 1973.  She has a (nationality omitted) background.  She is a (occupation omitted) at a (employer omitted).  The respondent father was born on (omitted) 1958.  He is a (occupation omitted) who specialises in (employment omitted).  He is in (business omitted) and has other unrelated business interests, including a (business omitted) company.

4. The respondent father has children from earlier relationships, who are aged 28, 25, 14 and 12 years.  It is his case that he is a skilled and experienced father, as a consequence of his extensive involvement in the parenting of all of these children.  In particular, he points to the fact that the two youngest children, A and B, live with him and their mother in an equal time arrangement.  In his submission this fact supports his contention that he is a very competent parent.

5. The parties met sometime in September 2012, via an internet site and began a relationship soon afterwards.  Ms Reid fell pregnant in early 2013, but unfortunately she lost the child concerned.  It is the father’s position, as I understand it, that the loss of the child greatly and understandably distressed the applicant mother and the emotional sequelae of that event still reverberate for her.  It is his case that the mother has significant on-going psychological issues, in part related to the trauma surrounding her miscarriage.

6. The mother fell pregnant with X at some time thereafter, with the pregnancy being confirmed in early 2014.  She moved in to the father’s home, in (omitted), for a period of time after X was born, leaving her home in (omitted) vacant.

7. However it is her case that she moved out because she was upset by the noise and dusts caused by some renovations which were being undertaken there to make it more comfortable for her and X.  She returned to live at her home in (omitted) with X but frequently returned to the father’s (omitted) home for dinner. 

8. It is the mother’s case that the relationship between the parties broke down in early 2015, when X was a very small baby.  It is her case that she had provided the vast majority of his care up until this stage, as the father had many calls on his time, both professionally and as a consequence of his parenting responsibilities for his other four children.

9. I have been provided with both parties’ perspective on the circumstances surrounding their separation, which appears to have been difficult and traumatic.  I have no desire to dwell on these matters.  It is, however, common ground that the father became involved with another person, who seems to have caused a great deal of upset both to the father and the mother.  Police and the (omitted) became involved.

10. At any event, it is clear that 2015 was a difficult year for both parties Against this background, in early 2015 it seems that Ms Reid consulted her GP, a lady by the name of Dr E – I hope I have not mispronounced her name – and at that stage the doctor’s notes indicated that the mother also presented with X. 

11. Ms Reid was described as being distressed because she had recently separated and was taking it badly. The mother made complaints that she was receiving communications from the person with whom the father was involved, which she regarded as threatening.  The reason for Ms Reid’s visit to the doctor was described as anxiety.  The doctor’s notes indicate that she listened and advised the mother to make a list of friends who can support her and the note says “suggestion of Zoloft if worse”.  The action taken that prescriptions were printed.

12. As I say, it is the father’s perspective that it was the earlier miscarriage which caused the mother to suffer emotional dysregulation.  It is his case that during much of 2015 the mother displayed behaviour which he regards as unstable and erratic.  It is his case that she was aggressive and frequently provocative towards him, when he came to visit X, verbally abusing him and pushing him.

13. From the mother’s perspective, the year was a difficult one for her, not only because she was recently separated and been subject to some threat from a person with whom the father had subsequently become involved, but also because Mr Douglas was intent on parenting X, in an equal time regime, regardless of his tender years and her views on the matter.  Essentially it is her case that the father is an insensitive person who is not inclined to consult with others.

14. She regards the father as being a person, who is used to getting his own way, particular because he is well resourced, in a financial sense.  It is her case that, after the parties separated, she felt intimidated and bullied by the respondent’s behaviour, particularly that he would come to her home whenever he felt like it and demand to see X.

15. From the father’s perspective, he asserts that he has always been reasonable, in respect of arrangements for X’s care and has been sensitive to the mother’s emotional needs.  However, he asserts that on at least two occasions, in July and September of 2015, the mother lost her composure and effectively attacked him. 

16. It is common ground between the parties that, during 2015 the father continued to work but the parties disagree, to some extent, about how long his working hours were.  The mother’s position is that the father worked up to 18 hours a day, as well as being involved with parenting his other children.

17. In these circumstances, it is her case that, against such a background, it must be the case that she was X’s sole or primary provider of care.  It is her case that X was breastfed from the time of his birth.  However, she had to cease breastfeeding him because of stress arising from the father’s other relationship and what happened thereafter.

18. It is the father’s position that he was supportive and forbearing so far as the mother was concerned.  He acknowledges that he came regularly to her home.  It is his case that, as a consequence of the frequent visits, he has a very close relationship with X.  It is his case that he has spent substantial and significant time with X. 

19. At this stage, these are not issues which I am able to fully resolve.  However, I note that the father was in employment and he is a professional person.  It would seem likely that he has some calls on his time and I think I have a letter, which another of his partners has written that indicates that he sees quite a number of people each week. Although as a (occupation omitted), it is not necessarily the case that he always has to engage with them for any lengthy periods of time.

20. The mother was not working in 2015 in the paid workforce.  It is the mother’s position that X is not an independent child by any means.  She describes him as being very closely dependent on her.  She asserts that she was and remains X’s primary carer, which from her perspective is the most important factor in the determination of these proceedings, at the interim stage. 

21. In these circumstances she says, even when Mr Douglas came over to spend time with X, she was the parent who maintained supervision of him and very often the father was tired and would unwind in front of the television set and did not actually interact directly with the child.  Whether that is so or not, again, I cannot determine at this interim stage. 

22. Accordingly during the majority of 2015, there was no formal regime in place for Mr Douglas to spend time with X.  Rather arrangements occurred on an ad hoc basis against a background of tension and uncertainty.  Matters came to a head, from September 2015 onwards, when the mother was offered a part-time (occupation omitted) position at (employer omitted). 

23. In these circumstances, more detailed consideration had to be given to the necessary arrangements for X’s care.  It seems to me to be against the weight of probability that the parties were capable of agreeing on the appropriate arrangements for X’s care for 2016.

24. It is the father’s position that the parties agreed, in the latter part of 2015, on a regime of shared care, by which the child would spend three or four days with each of his parents on a weekly basis.  The mother does not agree that there was any such concluded agreement and certainly refutes that she was comfortable with it.  The implication of her case is that the father forced it upon her.

25. It is the father’s case that he forbore from taking any steps to voice his concerns about the mother’s mental state, in a formal sense, because he was satisfied with this arrangement.  From the mother’s perspective, she asserts that she was, in effect, never comfortable with it and she was concerned that the father was intent on forcing it upon her regardless of her feelings or reservations. 

26. This issue is likely, I think, to have come to the fore towards the end of 2015 because, after the mother got her job at (employer omitted) on a part-time basis, she wished to place X in childcare, whilst she was at work.  The father did not necessarily agree with such a proposed arrangement and it seems highly probably that there was a lacuna in respect of what was going to be future arrangements for X’s care in this regard, which the parties were incapable of filling in consensually. 

27. It’s the mother’s position that the father was intent on having overnight time, over the Christmas period, with X, to which she agreed, albeit reluctantly.  Thereafter she says she was uncomfortable with further overnight time, as she did not consider X was old enough to be away from her overnight, given that she has been his primary carer, up to this stage. 

28. The father does not agree.  It is his position that, given what he asserts is the strong and established relationship between him and X and given his competence as a parent, it is appropriate, for X, to be in his father’s care for extended periods of time, including overnight.

29. This is the essential background, which has precipitated the current crisis between the parties and led to the instigation of these urgent proceedings.  Since 10 January 2016, X has been in Mr Douglas’ care.  How this situation came about and the justification for it are matters of great controversy.

30. In her evidence, Ms Reid points to the fact that in early January, the father went on a conference and X remained in her care.  From her perspective, things needed to be sorted out urgently in respect of arrangements for the coming year, particularly in terms of X’s possible attendance at child care.

31. What the parties do agree about is that there was an unpleasant altercation between them on 10 January 2016, since which time X has been with his father and has not spent any time whatsoever with his mother.  This situation has precipitated Ms Reid’s urgent application to the court, which was filed on 18 January 2016 after an exchange of correspondence between the parties, including a letter from the father’s solicitor dated 13 January, from recollection.

32. Although the parties agree that there was an unpleasant altercation, they vehemently disagree as to who precipitated it.  From the mother’s perspective, she asserts that she was increasingly resentful that the father would come to her home whenever it suited her and was intent on dictating arrangements for the child’s care to her. 

33. She says that she did not want X to go with his father on 10 January but he took no notice of her view.  The father does not agree.  It is his case that, in effect, the mother lunged at him violently, caused great distress to the child, broke his glasses, loosened a tooth and generally behaved in an extraordinary manner, which led to him removing the child, from Ms Reid, for safety reasons.  As I indicated earlier, he opines that the mother has some unresolved psychiatric issues. 

34. Mr Douglas has responded to the mother’s application seeking the return of the child, proposing that in the interim X live with him and that the mother undergo or enrol in an anger management course and attend a minimum of six sessions.  He has no specific proposal as to what time the mother should spend with the child, other than that it should be as ordered by the court. 

35. In similar fashion, the mother has no specific proposal as to what time the child should spend with the father, other than that the child should be immediately returned to her.  Rather, she proposes that the father spend time with the child as determined by the court. 

36. As will, I think, become apparent from this brief summary of the incidents which bring the parties to this point, there is currently a significant crisis in the life of X.  The parties are both extremely upset.  They have both prepared affidavit material quickly and there are extreme differences in what each asserts has occurred. 

37. The father has made a complaint to the police about the mother’s alleged assault of him.  He has prepared a statement and the police have apparently told him not to return the child to the mother.  There is, as far as I know, no involvement of the Child Protection Services and no application to place the child in the care of the minister or otherwise.

38. At this interim early stage, I am not in a position to resolve these issues of fact.  Rather, what I must do is analyse the evidence which is available to me, concentrating on matters which are agreed and then put in place the orders, which I think at this juncture, will best reflect the interests of the child concerned. 

39. The parties need to bear in mind that I am not resolving the care arrangements for X on a final basis this afternoon. I am told that the respondent father has been involved in previous proceedings under the Family Law Act. As a consequence of that he will be aware that cases of this nature have the potential to take a significant period of time to resolve.

40. I should point out that following the altercation between the parties on 10 January, the father took X to a doctor who examined him and the letter has been provided from the doctor concerned which says that when Mr Douglas, aged 14 months, attended on a Dr V he was unexceptional in his presentation.  I have also been provided with some photographs of the father, which he asserts demonstrates injuries which he has sustained from the mother earlier.

41. How a child’s interest is to be best served is determined by reference to the matters set out in section 60CC. In a case called Goode & Goode,[1] the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed, whilst bearing in mind that it cannot make findings of fact about all manner of disputed things. 

    [1]  Goode & Goode (2006) FLC 93-286

42. Rather, the court should focus on what is agreed or what appears to have been the situation in respect of prior care arrangements for the child concerned. In this context, it should analyse what findings should be made in respect of the relevant section 60CC factors.

43. Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it: primary considerations and a longer list of additional considerations, which take up from clause (a) to (m) of subsection (3) of section 60CC.

1. There are two primary considerations which are set out in section 60CC(2)(a)(b), namely:

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

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

2. As a result of section 60CC(2)(a), the court is directed to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

3. It is the father’s position, as I understand it, that at this juncture, the pre-eminent concern of the court needs to be to protect X from coming to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, emanating from the mother. 

4. In terms of those considerations, the evidence which is available to me, I think, suggests that both parents are capable of properly managing this young child’s needs.  There is no suggestion that the father is not able to attend to the child’s needs in a physical sense.  Similarly, the father does not suggest that the mother has neglected or abused this child. 

5. Rather his concerns relate to what he ascribes as the mother’s labile, which renders her liable to behave erratically and violently, in X’s presence and which has the potential to cause the child psychological distress.  If the mother has behaved violently, the evidence indicates that this has occurred when the father has been present.

6. From my perspective, what is clear is that X is a much loved child by both his mother and his father.  However, at this juncture, the parties’ relationship with one another is very poor indeed and they have no capacity to agree on ongoing arrangements for his care. 

7. The mother categorically denies that she has assaulted the father in July and September, and as I say, it is her case that she was responding to a provocative piece of behaviour, on the father’s part, on 10 January.  Whether that is so or not, I am unable to determine in the context of these interim proceedings.  

8. The mother also points to the fact that she is fairly small in stature and the father is a large man.  But from my perspective, and in my view, that does not mean that the mother is not capable of assaulting the father.  As I say, the issue for the court is not to determine whether the mother did or did not assault the father and what were the circumstances surrounding the incident.  That is an issue that can only be determined, if at all, in the context of a more extended hearing, involving cross-examination.

9. Rather the question for the court, at this interim stage, is what is the risk, arising for X of coming to some sort of harm, as a consequence of being exposed to the mother in all the circumstances of the case and if there is a risk, what is a proportionate response the degree of risk arising. 

10. I appreciate that that harm is multifaceted and it does not necessarily encompass only the risk of the child being physically hurt through exposure to family violence.  There is also the risk of psychological harm coming to the child, if he is exposed to a person who is not able to regulate his or her behaviour. 

11. 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.”

12. At this point, it seems more likely than not that whatever violence which has occurred between the parties is situational in nature.  That is, it arises as a consequence of stress or difficulties stemming from their recently failed relationship rather than being of a coercive and controlling nature.  That is, one party attempting to control the other through the exertion of either physical force or control.

13. It seems to me that the risk of X being exposed to harm as a consequence of this type of family violence will be much minimised if arrangements for his care, in the short to medium term, are regulated and the parties themselves do not come into contact with one another for any extended periods of time. 

14. As I have already said, it seems to me that there was something of a vacuum in respect of how X was to be cared for and in that vacuum the parties have not behaved in a consensual or constructive manner.  If that vacuum is filled, on a provisional basis, it seems to me to be more likely than not that there will be no more regrettable incidents between the parties, during such a period.

15. In terms of the additional considerations, I have to consider the nature of the relationship, which the child has with each of his parents and other persons, including grandparents or other relatives.

16. The father points to his other children, and in the jargon it seems to be the case that he wishes X to be part of his blended family from two earlier relationships.  I can understand why he would wish that to be so, but at this stage, as I have pointed out to the parties, it is likely to be early days so far as those relationships are concerned, particularly bearing in mind X’s age. 

17. At this stage, it seems to me to be more likely than not, given what occurred during 2015, that X’s more significant relationship is with his mother and in this context I am concerned that that relationship has been unilaterally suspended or interrupted as a consequence of the father’s behaviour. 

18. In my view, there is likely to be a risk of X suffering some form of emotional harm, if he is separated from his mother for a protracted period of time, given that at his age, he does not have the cognitive capacity to understand why he has been abruptly separated from her.

19. Another of the factors, which I must take into account, is the level of insight that a person has into the responsibilities of being a parent.  In this context, I am concerned that it is likely to be unsettling for X that he goes from a situation where he sees his mother daily – where it is his mother who puts him to bed and who wakes him in the morning and who puts him down for his nap and does all the other things that Ms Reid has deposed that she does – that a child of X’s age goes from that sort of regime to not seeing her at all. 

20. It is also in that context that I come to other considerations which I believe are germane in this case.  They include the maturity of the child concerned and other characteristics of the child that the court thinks are relevant.  In this case, it is I think, very significant that X is 15 months of age. 

21. As such, he has no cognitive insight into the dispute between his parents.  He does not understand what is going on in his life and is likely to be upset if he is separated from one of his parents for any extended period of time. 

22. This brings me to another of the additional considerations, which is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either one of his parents.  From my perspective, it is a very significant thing that X has not interacted with his mother, since the father took him into his care, which led to the institution of these proceedings.

23. So it is the case, in this matter, as it is invariably in cases concerning children, at the interim stage, that the case is about risk and how it is to be assessed against a background of incomplete and untested evidence.  The father asserts that the mother, due to her psychological state, poses a risk to the child.  From the mother’s perspective, it is emotionally risky for X for the court to condone a regime which sees X being away from her. 

24. The mother today has provided me with a further medical certificate – or medical report I should say – from her doctor, and again I apologise if I mispronounce her name, Dr E.  The letter is dated 21 January 2016.  I appreciate the doctor, because she has been in a professional relationship with Ms Reid since October of 2010, may be criticised as not being completely objective and impartial in her account of Ms Reid and because it can be said that she may not have been fully appraised of the history of the matter, particularly what happened on 10 January 2010.

25. The doctor deposes that she has been told that X was forcibly taken by his father on 10 January and thereafter Ms Reid has been denied contact with her.  She deposes further that she has been X’s doctor since shortly after his birth.  She says that Ms Reid does not have any significant past medical history, and in particular, she does not suffer from any chronic physical or mental conditions. 

26. She deposes to the fact that Ms Reid has worked and done other worthwhile things in the community.  In terms of the doctor’s impression of Ms Reid’s involvement with X, Ms Reid is described as being a typical first time mum, who did not suffer postnatal depression, just the opposite.  The doctor says that she coped well and managed herself and the baby well. 

27. She – that is, the doctor – concedes that Ms Reid has not had a very strong psychological construction since February 2015.  This condition is attributed to the matter to which I have alluded, which relates to the father’s involvement with this other person which, as I say, seems to have been highly regrettable. 

28. The doctor says in her report that Ms Reid continued to show her devotion and ability to protect and care for her son well.  Her son has always been well looked after and continues to grow and develop well.  This has also been stated in the letters from two paediatricians who have been seeking Mr Douglas for possible allergies.  The doctor describes Ms Reid as a sensible, loving and caring mother and X’s safety with her should never have to be questioned. 

29. So I have that report from a GP who is not, of course, a psychologist or a psychiatrist but who no doubt sees many patients who have psychological or psychiatric issues, particularly those which relate from stressful conditions.  I have the father’s diagnosis, which does not arise in a professional setting but I acknowledge that he is a (occupation omitted).  But from my perspective there is, I think, a risk that he might not be totally objective about it. 

30. Balancing all those considerations I have come to the view that the mother does not pose an unacceptable risk to this child.  I have further come to the view that given what I regard as some aspects of unilaterality to the father’s conduct and my assessment of the allegations of family violence in this matter that, on balance, it is likely to be in the child’s best interest to be returned to the care of his mother. 

31. Accordingly, I will direct that the child be returned to the mother.  I will deal with the specifics of that in a moment but I think it should be soon, in a place which is secure and subject to oversight, given the tensions which these proceedings are likely to have precipitated in each of the parents concerned. 

32. As I say, this is a point of crisis in the child’s life.  I have considered whether the presumption of equal shared parental responsibility should be applied to his ongoing care.  The presumption is rebutted if the reasonable grounds to believe that a parent of a child is engaged in abuse or family violence or I am satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.  Significantly, at the interim stage, I need not apply the presumption if it would not be appropriate in the circumstances prevailing for the presumption to be applied. 

33. In terms of best interests and the applicability of the presumption at the interim stage, I think the matters that are outlined in section 65DAA(5) are germane. I consider, at this juncture, that the parties have limited capacity to communicate with one another. It is also apparent that they currently have a limited capacity to solve parenting problems arising in respect of X.

34. In these circumstances, I am concerned that an equal time or a substantial and significant time regime, which I am bound to consider if the presumption applies has the potential to have a deleterious impact on X.  I do not think the presumption should be applied.  Rather, I consider that the presumption should be rebutted. 

35. In any event, when I look at the section 60CC factors, as I have briefly described them in these orally delivered reasons for judgment, I think, on balance, that it would not be in X’s best interest for there to be an equal time regime or a substantial and significant time regime.

36. As with many cases involving children under three years of age, the significant issue is overnight time.  Although I appreciate I do not have any expert evidence at this stage, there is great controversy about the viability of overnight time for children which occurs away from a child’s primary carer in children who are under three years of age.

37. It, of course, being the case in generic terms that children – and I emphasise generic terms – are likely to be more anxious at night time, particularly if they are separated from the person who has become their primary carer and, therefore, their primary source of emotional support. 

38. But, as I have said, I accept that the respondent father cares very much about X and it is in the child’s best interests to maintain and have a meaningful level of relationship with him.  So in the short to medium term, I think that relationship can be sustained by regular periods of daytime contact. 

39. I am told the child has a nap around the middle of the day.  In these circumstances, I am going to propose fairly frequent periods of daytime contact, after lunch, on three occasions each week, on the basis that I am also told that the father has got flexible working arrangements. 

40. The regime can commence on 28 January.  The rationale of it starting this coming Thursday is to allow the child to settle back into the regime of care with his mother.  The next issue is what other interventions should be put in place, particularly in terms of a family dispute resolution conference and a family assessment report.

41. I have not inquired as to the parties as to whether they are willing to attend a family dispute resolution conference.  It has been suggested by the mother that the father finds such interventions not useful.  But I will make such an order on the basis that I am told by the father’s solicitor that he was desirous of reaching some consensual outcome to these proceedings. 

42. I have not been told how long it is likely to take the family assessment reporter to make the necessary assessment of the family.  It is likely, I think, to be some time. But I am satisfied that, in the period of time between now and 20 April, which is about three months, these are appropriate arrangements which will enable the child to have a relationship with his father and with his mother and also to be safe. 

43. 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 eighty six (86) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         12 April 2016