Rocacelli & Seles
[2019] FamCA 105
•28 February 2019
FAMILY COURT OF AUSTRALIA
| ROCACELLI & SELES | [2019] FamCA 105 |
| CHILDREN – Interim Hearing – Where competing proposals – Where the father seeks changes to the existing interim parenting orders before the trial - Where the mother and Independent Children’s Lawyer propose that existing arrangements continue until trial – Where disputed facts are unable to be resolved in interim hearing – Where family violence – Extent to which the father was domestically violent during the relationship – Issue of level of risk the father poses to the child in an unsupervised setting –Where benefit to the child maintaining a meaningful relationship with the father provided she is safe – Child’s wishes – Where present orders are maintained – Where the father’s application is dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR S v Australian Crime Commission (2005) 144 FCR 431 Harridge & Harridge [2010] FamCA 445 Goode & Goode (2006) FLC 93-286 Salah & Salah [2016] FamCAFC 100 Eaby & Speelman (2015) FLC 93-654 Marvel v Marvel (2010) 43 Fam LR 348 SS v AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Rocacelli |
| RESPONDENT: | Ms Seles |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Falcomer |
| FILE NUMBER: | DGC | 1007 | of | 2017 |
| DATE DELIVERED: | 28 February 2019 |
| PLACE DELIVERED: | In Cairns |
| PLACE HEARD: | Cairns via telephone |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 14 February 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Spina Kyle Waldon |
Orders
The father’s Application in a Case filed 9 October 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rocacelli & Seles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: DGC1007/2017
| Mr Rocacelli |
Applicant
And
| Ms Seles |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 9 October 2018 I conducted a Trial Management Hearing in these parenting proceedings, and listed the trial to commence on Monday 8 April 2019, with an estimated hearing time of five days. However immediately prior to that Trial Management Hearing commencing, Mr Rocacelli (“the father”) filed an Application in a Case seeking changes to the existing interim orders, pursuant to which each fortnight he has 30 minutes of supervised Skype communication with X, born in 2008, and hence presently 10 years of age, (“the child”). Ms Seles (“the mother”) and the Independent Children's Lawyer oppose the father’s application. On 14 February 2019 I heard the father’s application and reserved my decision. This is that decision and the reasons for it.
BACKGROUND FACTS
The father was born in South America in 1964, and hence is presently 54 years of age. He emigrated to Australia at 20 years of age, and later married here, to which marriage he had three children. Whilst I know little of his life prior to him being involved with the mother, it appears as though in that period he had a number of criminal convictions for offences of violence and dishonesty.
The mother was born in 1977, and hence is presently 42 years of age. She was born in Europe and emigrated to Australia, seemingly as a young person.
The parties met in 1998 when the mother was employed by the father in his business in Melbourne. At the time the mother was 21 years of age and the father 33. The father was still married to and cohabiting with his first wife, however they separated in about 2000, and divorced in 2002, although at that time the father was imprisoned. During that period of imprisonment, it appears as though the mother operated the father’s business.
In 2007 the mother became pregnant with the child, and the parties married during that pregnancy in 2008. As I have observed, the child was then born in that year.
It appears as though the parties’ relationship has been characterised by instability, with many separations, and it would regularly recommence, on to later again cease, to the point that even though the parties finally divorced in September 2016, it seems likely that the parties intermittently thereafter nonetheless engaged in sexual relations up until about the middle of 2017.
Unfortunately the parties’ relationship towards its conclusion appears likely to have had domestic violence as one of its hallmarks. The extent to which the father concedes domestic violence is a little unclear, but it is plain that from time to time there has been domestic violence orders made protecting the mother and child from the father, and further, that the father has breached those orders on occasion, and has been charged and convicted of doing so at least twice.
Post-2017 there was a period during which the father was neither spending time nor communicating with the child, however in July 2018 orders were made permitting the father to communicate with the child by Skype for 30 minutes each fortnight, such time to be supervised by the father attending a Contact Centre. The first such contact was on 28 July 2018, and the evidence before me of the most recent occasion relates to a conversation on 12 January of this year.
Both during the relationship and afterwards, the parties have variously lived either in Melbourne or Far North Queensland. At the time of the hearing before me, both were residing in Melbourne.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Risk assessment in parenting matters
In Harridge & Harridge [2010] FamCA 445 Murphy J, proceeded to adopt the following list of inquiries in relation to risk assessment:[1]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
Interim parenting proceedings
In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:
[36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
[37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
[39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).
THE COMPETING PROPOSALS
The father’s Application in a Case articulated 20 specific orders by which, in broad terms, he sought to:
·Immediately commence having unsupervised telephone calls with the child for one hour each week on the weekend;
·On three occasions, have the child spend supervised face-to-face time with him at a Contact Centre for one hour each fortnight which, if it proved successful, would move to either unsupervised time, or his time being supervised by a family member for half a day for another three fortnights, at the conclusion of which it would move to unsupervised time spanning seven hours for three occasions on consecutive weekends;
·Ultimately extend his time to overnights, with the child spending time with him from Friday afternoon after school, until Sunday at 6:30pm. This would appear to be the permanent culmination of the interim orders sought by the father;
·Make provision for special days;
·Impose various restraints upon the mother, particularly from moving interstate, and requiring her to keep him advised of her residential address.
Proposed order 18 identified that the father intended to avoid the necessity of the trial in this matter, and indeed it will be appreciated that with a trial being listed in April, very little of what the father seeks, even if it were ordered, would have eventuated by the time the trial is due to commence.
For their part, the mother and Independent Children's Lawyer simply proposed that present existing arrangements, whereby the father spends 30 minutes communicating with the child by Skype each fortnight, continue until trial.
THE ISSUES IN DISPUTE IN THE INTERIM HEARING
There is a great deal of factual disputation between the parties, however doing the best I can, it appears as though the primary issues which are in dispute between the parties which pertain to this hearing are firstly, the extent to which, if at all, the father poses any risk of harm to the child; secondly, the benefit to the child of having a relationship of substance with the father, and thirdly, the child’s wishes.
THE AGREED OR UNCONTESTED FACTS
Both the mother and the father are self-represented, and their material is at times difficult to follow, and on occasions written in a way which tends to obscure, rather than reveal, the facts. However it is plain that there are significant disputes between the parties as to the extent to which the father was domestically violent during the course of the relationship, and the extent to which he remains, if not obsessed with the mother, then at least possessed of a strong interest in knowing about her life, including her whereabouts.
However it appears as though the following may be said to be uncontested facts:
·The parties were in a relationship from 1998 onwards;
·During the course of the relationship, the father was occasionally incarcerated as a result of sentencing for criminal convictions;
·During periods of cohabitation during the course of the relationship, both parties assisted in the care and raising of the child, although the extent of their respective involvement seems contentious;
·Domestic violence orders have applied from time to time between the parties, and still are presently in force;
·The child is presently living with the mother in Victoria and attending school there.
RISK OF HARM TO CHILD FROM FATHER
It is a little difficult to precisely delineate the risk of harm which the father is said to pose to the child, but it appears to be a risk of emotional harm from being exposed to displays of anger or violence by the father. The father denies that he poses any such risk of harm.
The mother’s evidence is that the father was domestically violent, and angry towards her in the presence of the child during the course of the relationship, and indeed after it ceased. The father appears to deny that, and certainly it is not a matter upon which I could reach any firm conclusion at this time, save to note that the father has been convicted of breaching domestic violence orders which were intended to protect the mother from him.
The father was assessed by a psychiatrist, Dr B on 17 May 2018. In his ensuing report, Dr B said:
Based on all the information available and my interview with [the father], I believe that [the father] displays significant traits of Dissocial Personality Disorder or Anti-Social Personality Disorder. He also does not appear to have any regret for his past actions and he appears to be impulsive, has poor anger control and has significant instability in all his relationships. He also does not seem to have any regret for any pain he may have cause although he may verbally express that he does.
There are no other current active psychiatric diagnosis and therefore I do not believe that there would be any need for any acute treatment as such. I would however recommend that [the father] consult a trained psychologist to be able to undergo interpersonal therapy so that he can work on his relationships. He also needs to undergo problem solving techniques to be able to work on his anger dyscontrol.
I would recommend that based on today’s assessment and the information supplied, that I do not have any objections to [the father] being able to speak to his daughter via Skype. I do not believe however, that [the father] would show any improvement in his anger dyscontrol or his dissociative personality and his poor judgement as well as impulsivity will continue to make him prone to anger outbursts and violence. Therefore, I believe that [the father] only have Skype sessions with his daughter at this current point of time, and that she continue to live with her natural parent that she lives with, [the mother].
When I inquired with the father whether he had conformed with Dr B’s recommendations for assistance, he informed me (although it was not otherwise in evidence) that he has extensively engaged with an overseas psychiatrist, who apparently has some family connection. It is unclear whether that person’s assistance meets the need identified by Dr B.
It remains to be seen whether the facts upon which Dr B’s opinion based are borne out in the evidence. However it does indeed appear as though there is presently good reason for concern that the father is impulsive, has poor anger control and has a history of instability in relationships.
The Family Report writer, Ms C, interviewed the parties in late 2017 and early 2018, and prepared a Family Report dated 28 January 2018. It follows that she did not have the benefit of Dr B’s report at that time. However at [104] she noted “the writer gained the impression of fundamental concern is [the father] unpredictable volatility and his past violence.” Later she continued:
[107] The Victorian Police records indicate [the father] has perpetrated domestic violence against his former partner … and their daughter. If the account provided to police is correct, it would suggest [the father] was physically, psychologically and verbally abusive to [the daughter]. The writer notes the Victorian Police applied for Protection Order which was granted in August 2014. This incidence particularly concerning as it demonstrates [the father] can be violent towards his daughter.
[108] Assessment data, including subpoenaed data indicates [the child] has been exposed to significant family violence between [the father and mother]. Available information suggests [the child] has witnessed physical abuse, verbal abuse (arguments, derogatory names) and psychological abuse…
…
[111] Whilst there may be merit in Court orders providing for [the child] to spend supervised time with [the father], due to [the father’s] past behaviour, the writer would argue for a more cautious approach.
[112] The writer is at the opinion this matter requires a judicial decision. For the interim, the Court may see merit in limiting [the child’s] time with [the father] to supervised Skype time that is to occur at a Contact Centre…
Again, of course those opinions and recommendations remain untested. Nonetheless there is sufficient evidence to give rise to real concerns as to the father’s capacity to appropriately emotionally regulate himself, and not expose the child to the risk of harm from his actions.
In this respect the Contact Centre notes are illuminating. Although of recent times there appears to have been little concerning behaviour displayed by the father, I note that in the past the father has proved keen to explore inappropriate topics of conversation with the child. Indeed in a summary of the father’s attendance provided in a Contact Centre report dated 25 October 2018, it was said:
The conversations were for the most part appropriate, however this Service contacted [the father] on several occasions regarding speaking to [the child] about future spend time arrangements; his ill health, pressuring [the child] to reciprocate her love for him and his own agenda. The Service advised [the father], that as per the Service Agreement … that Skype calls would be suspended if he continued to breach the Service Agreement.
Later it continued:
The Service has also suggested to [the father] that it would be beneficial for him to engage with the Parenting Orders Program in his State to learn skills around communicating with [the child] in a child focussed way, as [the father] appears unable to respond to [the child’s] needs and the potential impact this may have on [the child’s] health and wellbeing.
I inquired of the father whether he had indeed undertaken a Parenting Orders Program, but he indicated that he had not. He did not seem to agree that there were any concerning aspects to his caring for the child, and emphasised (repeatedly) that he had a long history of caring for the child during the course of the relationship, and indeed, on occasions post-separation.
Whilst I cannot presently accurately gauge the level of risk which the father may pose to the child, there are plainly concerning matters which raise real issues in that respect. A conservative approach would be to proceed cautiously until the veracity of the factual matters which underpin those concerns can be determined at trial.
BENEFIT TO CHILD OF MEANINGFUL RELATIONSHIP WITH FATHER
There can be little doubt that the father deeply loves the child. Moreover, it appears as though, at least on some occasions, the child has enjoyed communicating with the father, particularly explaining to him the activities which she undertakes both at home and at school. Indeed I did not understand the mother’s case to be that the child would derive absolutely no benefit from a relationship with the father, but rather her concerns were more in relation to the safety of the child, and particularly her emotional wellbeing, when communicating with or spending time with the father.
On an interim basis, it seems to me as though the evidence supports the conclusion that provided the child can be kept safe, there is likely to be benefit to her from maintaining a meaningful relationship with the father, or one as meaningful as the circumstances required to ensure her safety permit.
CHILD’S WISHES
The child is approaching 11 years of age. There is no reason to think that she is not appropriately mature for her age. Therefore whilst her wishes could not be determinative, they need to be acknowledged and some weight given to them.
The most recent expression of the child’s wish was on 12 January, after having had a Skype communication with the father. The notes relevantly record:
… [The child] hung up the call and sighed loudly immediately after. When the Worker asked her if she was ok, she said she was fine. [The child] then spoke to the Worker about feeling that she had to attend those video calls, “because the court says I have to.” [The child] further stated that she does not ever want to see [the father] in person, as she does not feel comfortable to do so…
The father asserts that the child has been influenced by the mother to such a view. However earlier notes cast considerable doubt upon that. For instance during the course of the conversation on that day with the father, the notes record:
At times, [the child] appeared slightly uncomfortable as suggested by kicking and shaking her legs, speaking very rapidly, going red in the face, and stumbling on her words.
Other indicators of the child’s lack of comfort with the father appear not only in the notes of that occasion, but also on several previous conversations, when the father somewhat obsessively focussed upon telling the child that she is beautiful, and that he missed her. On several occasions now the child has attempted, at least according to the notes, to redirect the father from those issues to a topic of conversation she feels more comfortable with. These appear to have been repeated themes in the father’s engagements with the child during the Skype conversations. Thus, for instance, on 20 October 2018, in the course of the father answering written questions which had been posed of him by the child, he invented additional questions (which he insisted upon answering) about how much he really loved the child, why he loved her, and later, a further invented question pertaining to the ways in which the child was like the father.
Another indication of the child’s level of comfort with the father is found in the child’s conversation with the Contact Centre worker after her Skype visit communication with the father on 15 December 2018, in which the father had asked for the 30 minute call to extend to an hour, where the child is recorded as having told the worker “but please do not make them one hour video calls.”
All of these tend to suggest to me that the child’s expression of a wish not to spend face-to-face time with the father, at least at this point in time, may well be genuinely held by her, as it is consistent with her past behaviour and prior utterances in relation to the level of comfort she feels with the father.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the above issues, I have addressed both primary considerations and some additional considerations. However I make further observations.
The child had a good relationship with the paternal grandmother, which has been substantially dislocated by her lack of time with the father. The parties have apparently agreed that there should now be a re-commencement of time between the child and the paternal grandmother, although not in the company of the father. Practical difficulties may exist in relation to the regular utilisation of such time, but that remains to be seen.
The father has always been keen to maintain a relationship with the child, both by spending time and communicating with her.
There does not appear to be any suggestion that the father has not met his obligations to maintain the child.
Real doubt exists in relation to the capacity of the father to provide for the emotional needs of the child.
The mother asserts there has been extensive family violence perpetrated towards her by the father, in the presence of the child. The father appears to substantially, if not entirely, deny that.
Family violence orders have applied from time to time between the parties, and the father has breached them on occasion, resulting in convictions. Those facts would tend to suggest that relevant authorities have identified the need to protect the mother from the father’s engagement with her, and the fact that the father has proven difficult to persuade to conform with those orders. Inevitably that means some doubt exists as to the father’s likely compliance with orders of this court.
The father seems to suggest that the interim orders he seeks may obviate a trial. Of course it may be that the father does not wish to have his past behaviours scrutinised at a trial, and would find an interim hearing without cross-examination more convenient.
The trial of this matter is looming, and there is no suggestion that the matter will not be ready to proceed in April.
FATHER’S TIME AND COMMUNICATION WITH THE CHILD
The father argues that one of the benefits of his proposed orders is that, by the time of any trial of any proceedings, there would have been an opportunity for his engagement with the child in an unsupervised setting to be trialled and reported upon. Otherwise he says that there is a real prospect that the April hearing will not result in final orders, as there is too much uncertainty in relation to how the child will cope with reintroduction to him, as he seeks.
However that fails to deal with a fundamental issue, namely the level of risk which the father poses to the child in an unsupervised setting. It is that which is the centrepiece of the litigation. The father seeks to, in effect, dispose of that issue on a summary basis in his favour, without submitting to the scrutiny of cross-examination.
The level of doubt which surrounds the father in this respect is considerable. That doubt has, albeit last year, prompted both the Family Report writer and Dr B to recommend no face-to-face time, at least at that point, between the child and father, but rather only supervised Skype communication. Although there have been occasions where the father’s conduct towards the child in those supervised Skype communications has been unremarkable, there have also been occasions when the father has raised inappropriate topics with the child, and appears to be somewhat obsessed upon his own agenda, rather than being truly child focussed. Thus the Contact Centre reports do not really alleviate the level of concern which otherwise surrounds the father’s asserted risk to the child.
Whilst perhaps from the father’s perspective far from ideal, the fortnightly Skype sessions do keep the father in the child’s mind, and a regular part of her life. It may be that she finds those visits something of a chore, but nonetheless his involvement in her life remains a current experience for her.
Weighing all the considerations in the balance, I am satisfied that the best interests of the child see that the appropriate outcome in this case, particularly given the imminent trial, is to maintain the present orders, and to enable a proper investigation of the level of risk, if any, which the father poses to the child at trial.
I therefore decline to accede to any part of the father’s Application in a Case.
CONCLUSION
For these reasons there will be an order dismissing the father’s Application in a Case filed 9 October 2018.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 February 2019.
Associate:
Date: 28 February 2019
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