Roden & Anor and Hipsley & Anor

[2009] FamCA 931

FAMILY COURT OF AUSTRALIA

RODEN AND ANOR & HIPSLEY AND ANOR [2009] FamCA 931

FAMILY LAW – CHILDREN – interim application of maternal grandmother and maternal uncle for contact with the child – child has been living with the father since interim orders of March 2009 changing the child’s residence – child has had no contact with mother and maternal family since those interim orders – final hearing listed for approximately 6 weeks – orders relating to time the child is to spend with the mother and maternal grandmother and uncle

Family Law Act 1975 (Cth)

1^st APPLICANT: Ms Roden

2^nd APPLICANT: Mr Gapes

1^st RESPONDENT: Mr Hipsley

2^nd RESPONDENT: Ms Hipsley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: NCC 1610 of 2008

DATE DELIVERED: 25 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17 September 2009

REPRESENTATION

1^ST APPLICANT: In person

2^ND APPLICANT: In person

COUNSEL FOR THE 1^ST RESPONDENT: Mr Batey

COUNSEL FOR THE 2^ND RESPONDENT: Ms Gibbons

INDEPENDENT CHILDREN’S LAWYER: Ms Weber

Orders

1. The child, L, born … September 1998, live with the father.

2. Except as provided in these orders the mother, Mr Gapes (maternal uncle) and Ms Roden (maternal grandmother) are restrained from attending the child’s school, and from contacting the child directly.

3. The child will spend time with the mother as follows:

   (a)from 25 September, or from the first available date a place is available at Relationships Australia’s G and D’s Children’s Contact Service (the contact service), on one day per fortnight for two hours to be supervised by a member of staff at the contact service for a period of not less than three (3) months, the times and days agreed between the parties with the supervisor;

   (b)provided that the mother has spent time with the child for not less than 8 visits in a 16 week period at the contact service then the mother’s time is to be extended as follows:

   (i)from 10.00 am to 4.00 pm one day a week during the 2009/2010 Christmas school holidays, to be agreed between the parties and if no agreement then each Friday;

   (ii)from 10.00 am to 4.00 pm on 26 December 2009, unless another six (6) hour period is agreed between the parties on 24, 25 or 26 December 2009;

   (iii)at other times as may be agreed in writing with the father.

4. The maternal grandmother and maternal uncle are permitted to accompany the mother when she spends time with the child at the G contact service, and on the other occasions set out in order 3.2 when the mother is spending time with the child, and in the event the mother does not spend time with the child as set out in order 3 then the maternal grandmother and/or the maternal uncle be permitted to spend time with the child on the same terms and conditions as set out in order 3 for the mother, including any time that may be agreed with the father in writing.

5. Until the beginning of Terms 1 in 2010 the mother, maternal grandmother and maternal uncle are restrained from attending the child’s school other than to attend a school event or extra curricular activities that allow for parental attendance as follows:

   (a)       concerts in which the child is participating,

   (b)       sports days in which the child is participating,

   (c)       school assemblies at which the child is to receive an award,

   (d)       parent and teacher interviews

   (e)other events in which the child is participating and to which parents are invited to attend.

   and any contact between the child and the mother and/or the maternal grandmother and/or the maternal uncle at a school event is to be in the presence of either the father or Ms B.

6. The mother have the following communication with the child:

   (a)from 25 September 2009 by telephone each Friday and Tuesday evenings, with the father to initiate the telephone call between 7.00 pm and 7.30 pm;

   (b)at all reasonable times requested by the child, and the father will facilitate those telephone calls;

   (c)by cards, letters and gifts to the child through the Independent Children’s Lawyer once per week and then sent directly to the child.

7. From 25 September 2009 the maternal grandmother and maternal uncle have telephone communication together with the child each Friday between 6.30 pm and 7.00 pm, with either the maternal grandmother or the maternal uncle to initiate the call.

8. The child’s telephone conversations with the mother, maternal grandmother and maternal uncle are to be supervised by Ms B.

9. Within seven (7) days of the date of these orders the father, the mother, the maternal grandmother and the maternal uncle are to contact the contact service at G and do all such things as are necessary to place the family on the waiting list.

10. The costs of implementing the orders in Order 3 will be paid as follows:

    (a)if the mother is spending time with the child then the father and the mother are to share all costs of implementing the orders in order 3 equally;

    (b)if the mother does not spend time with the child in accordance with order 3, but either the maternal grandmother or maternal uncle spend time with the child then the father will pay half the costs and whichever of the maternal grandmother or maternal uncle who is spending time with the child will pay the other half; and

    (c)if it is both the maternal grandmother and maternal uncle spend time with the child then they will share the cost the mother would have paid equally.

11. All parties are restrained from showing the child any documents connected with these proceedings or discussing the proceedings with the child or within the presence or the hearing of the child.

12. All parties are restrained from discussing with the child the possibility of the child returning to live with the mother.

13. All parties are restrained from recording by any electronic means whatsoever the child’s conversations with her mother.

14. All parties are restrained from making critical or derogatory remarks in relation to any other party to the proceedings to or in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about any other party in the presence or hearing of the child.

15. The father is restrained form changing the child’s school without the written consent of the mother.

16. The father is to provide copies of the child’s school reports to the mother within 48 hours of receiving the report being received.

17. The father shall ensure that the mother is kept informed of:

    (a)any medical problems or illnesses suffered by the child while in the father’s care

    (b)any medication that has been prescribed for the child

    (c)any social, school or religious functions which the child is to attend

    (d)the residential address of the father and particulars of the others who may reside with the child

    (e)any other matter relevant to the child’s welfare.

18. If the mother breaches any of orders 11, 12, 13 or 14 then the supervisor may end the mother’s time or telephone call, and will notify the Independent Children’s Lawyer of the breach.

19. The Independent Children’s Lawyer have liberty to restore the matter to the list on seven (7) days notice if any of orders 11, 12, 13 or 14, are breached.

20. In the event that the mother refuses to return the child from any period of time the child spends with the mother, and/or engages in words or actions that have the effect of causing the child to refuse to return to the father or attend school full-time during normal school hours, then all face-to-face time with the mother cease immediately.

21. The mother is restrained from taking the child to any medical treatment or assessments (other than any emergency treatment) other than with the child’s regular medical practitioner as advised by the father from time to time.

Notation

1. The Independent Children’s Lawyer does not intend to restore the matter unless there are repeated breaches or a significant breach of the orders.

2. The Applications in a Case filed by the maternal grandmother and maternal uncle on 3 July 2009 are otherwise dismissed.

3. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Roden and Anor & Hipsley and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1610 of 2008

MS RODEN

1^st Applicant

And

MR GAPES

2^nd Applicant

And

MR HIPSELY

1^st Respondent

And

MS HIPSLEY

2^nd Respondent

And

LEGAL AID COMMISSION OF NEW SOUTH WALES

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The principal proceedings before the Court are proceedings between the mother and the father concerning the parenting arrangements for their daughter (“the child”).

2. To these proceedings have been joined Ms Roden, the child’s maternal grandmother;  and Mr Gapes, the child’s maternal uncle.

1. The matter is part heard before me.  The matter was listed for the purpose of considering two Applications;  one brought by the maternal grandmother and one by the maternal uncle in which each of them seek orders that the child spend time with them, and the father’s Response to those Applications.

2. The proceedings before me are listed for hearing for a period of five days commencing 23 November 2009, approximately six weeks away.

3. On the morning of the hearing of the applications the mother sought to make an interim Application for an order that the child live with her and see the father when she wished.  Since that is the primary issue in the litigation between the mother and the father which is to be determined in six weeks time and given the history of the matter, I declined to make that order.

4. Also appearing before the Court was the father, who sought some interim orders permitting of contact between the child and the mother in certain terms.  The orders he seeks are as follows:

   6.That the Application in a Case by [the maternal grandmother] filed 3 July 2009 and the Application in a Case by [the maternal uncle] filed 3 July 2009 be dismissed.

   7.[The child] have supervised telephone time with the mother from the date of these Orders each Tuesday and Friday between the hours of 7.30 p.m. and 8.00 p.m. such contact to be conducted by speaker phone and supervised by either the father or Ms. [B] for the first six month period and thereafter that telephone contact be unsupervised.

   8.Provided that the mother has had not less than one month of telephone time pursuant to Order 1 then commencing Saturday, 19 September 2009 [the child] spend face to face supervised time with the mother and one other relative at the [G] Contact Centre for two hours from 9.00 a.m. to 11.00 a.m. on a Saturday.

   9.Commencing at the beginning of Term 1 of the school year 2010 [the child] spend time with the mother one day per week from
    9.00 a.m. to 6.00 p.m. in the Central Coast area.

   10.Commencing in December 2009/January 2010 school holidays and for each school holiday following, that [the child] spend time with the mother for one day per week from 9.00 a.m. to 6.00 p.m. in the Central Coast area which will be in addition to the time pursuant to Order 3 [sic].

   11.In the event that the mother refuses to return [the child] from any period of time pursuant to Order 3 and 4 [sic] [the child] spends with the mother, and/or engages in words or actions that have the effect of causing [the child] to refuse to return to the father or attend school full-time during normal school hours, then all time pursuant to Order 3 and 4 [sic] cease immediately and the child’s time with the mother be pursuant to Order 2 .

   12.The mother is restrained from taking the child to any medical treatment or assessments (other than any emergency treatment) other than with the child’s regular medical practitioner as advised by the father from time to time.

   13.Commencing in Term 2 of the school year 2010 [the child] spend overnight time with the mother each week from the end of school Thursday to the commencement of school Friday.

   14.Commencing at the beginning of the July 2010 school holidays, and for each alternate week thereafter, (excluding school holidays) that [the child] spend from after school Friday to before school Monday with the mother, extending to before school Tuesday on each long weekend.

   15.Commencing in the 2010 October school holidays [the child] spend time with the mother for one week of the October school holidays, and thereafter half of all school holidays with the mother collecting [the child] from after school on the last day of the term and returning [the child] to the father’s residence midway in the school holiday period.

5. The Independent Children’s Lawyer proposed orders in the following terms:

   1.The child, [L], born […] September 1998, live with the father.

   2.Except as provided in these orders the mother, [Mr Gapes] (maternal uncle) and [Ms Roden] (maternal grandmother) are restrained from attending the child’s school, and from contacting the child directly.

   3.The child will spend time with the mother as follows:

   3.1From 18 September, or from the first available date a place is available at Relationships Australia’s [G] and [D] Children’s Contact Service (the contact service), on one day per fortnight for two hours to be supervised by a member of staff at the contact service for a period of [not less than] three (3) months, the times and days agreed between the parties with the supervisor;

   3.2Provided that the mother has spent time with the child for not less than 12 visits in a 16 week period at the contact service then the mother’s time is to be extended as follows:

   3.2.lFrom 10.00 am to 4.00 pm one day a week during the 2009/2010 Christmas school holidays, to be agreed between the parties and if no agreement then each Friday;

   3.2.2From 10.00 am to 4.00 pm on 26 December 2009, unless another six (6) hour period is agreed between the parties on 24, 25 or 26 December 2009;

   3.2.3At other times as may be agreed in writing with the father.

   4.The maternal grandmother and maternal uncle are permitted to accompany the mother when she spends time with the child [sic] the [G] contact service, and on the other occasions set out in order 3 the mother is spending time with the child, and in the event the mother does not spend time with the child as set out in order 3 then the maternal grandmother and/or the maternal uncle be permitted to spend time with the child on the same terms and conditions as set out in order 3 for the mother, including any time that may be agreed with the father in writing.

   5.Until the beginning of Terms 1 in 2010 the mother, maternal grandmother and maternal uncle are restrained from attending the child’s school other than to attend a school event or extra curricular activities that allow for parental attendance as follows:

   5.1      Concerts in which the child is participating,

   5.2      Sports days in which the child is participating,

   5.3School assemblies at which the child is to receive an award,

   5.4      Parent and teacher interviews, and

   5.5Other events in which the child is participating and to which parents are invited to attend.

   Any contact between the child and the mother and/or the maternal grandmother and/or the maternal uncle at a school event is to be in the presence of either the father or [Ms B].

   6.        The mother have the following communication with the child:

   6.1From 18 September 2009 by telephone with the mother each Friday and Tuesday evenings, with the father to initiate the telephone call between 7.00 pm and 7.30 pm;

   6.2At all reasonable times requested by the child, and the father will facilitate those telephone calls;

   6.3by cards, letters and gifts [to the child through the Independent Children’s Lawyer once per week and then sent directly to the child].

   7.From 18 September 2009 the maternal uncle and maternal grandmother have telephone communication together with the child each Friday between 6.30 pm and 7.00 pm, with either the maternal grandmother or the maternal uncle to initiate the call.

   8.The child’s telephone conversations with the mother, maternal grandmother and maternal uncle are can be be [sic] [made and are to be] supervised by [Ms B].

   9.That within seven (7) days of the date of these orders the father, the mother, the maternal uncle and the maternal grandmother are to contact the contact service at [G] and do all such things as is necessary to place the family on the waiting list.

   10.The costs of implementing the orders in order 3 as follows:

   10.1If the mother is spending time with the child then the father and the mother are to share all costs of implementing the orders in order 3 equally;

   10.2If the mother does not spend time with the child in accordance with order 3, but the either [sic] maternal grandmother or maternal uncle spend time with the child then the father will pay half the costs and whichever of the maternal grandmother or uncle who is spending time with the child will pay the other half; and

   10.3If it is both the [maternal uncle and] maternal grandmother spend time the child then they will share the cost the mother would have paid equally.

   11.All parties are restrained from showing the child any documents connected with these proceedings or discussing the proceedings with the child or within the presence or the hearing of the child.

   12.All parties are restrained from discussing with the child the possibility of the child returning to live with the mother.

   13.All parties are restrained from recording by any electronic means whatsoever the child’s conversations with her mother.

   14.All parties are restrained from making critical or derogatory remarks in relation to any other party to the proceedings to or in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

   15.The father is restrained form changing the child’s school without the written consent of the mother.

   16.The father is to provide copies of the child’s school reports to the mother within 48 hours of receiving the report being received.

   17.The father shall ensure that the mother is kept informed of:

   17.1any medical problems or illnesses suffered by the child while in the father’s care

   17.2any medication that has been prescribed for the child

   17.3any social, school or religious functions which the child is to attend

   17.4the residential address of the father and particulars of the others who may reside with the child

   17.5any other matter relevant to the child’s welfare.

   18.If the mother breaches any of orders 11, 12, 13 or 14 then the supervisor may end the mother’s time or telephone call, and will notify the Independent Children’s Lawyer of the breach.

   19.The Independent Children’s Lawyer have liberty to restore the matter to the list on seven (7) days notice if any of orders 11, 12, 13 or 14, are breached.

   Notation

   20.The Independent Children’s Lawyer does not intend to restore the matter unless there are repeated breaches or a significant breach of the orders.

1. In relation to those terms all parties agreed to consent to Orders numbered 11, 12, 13, 14, 15, 16 and 17.  The father agreed to the orders proposed by the Independent Children’s Lawyer and sought an addition to those orders, orders which would have the following effect:

   11.In the event that the mother refuses to return [the child] from any period of time pursuant to these orders that [the child] spends with the mother, and/or engages in words or actions that have the effect of causing [the child] to refuse to return to the father or attend school full-time during normal school hours, then all time pursuant to these orders cease immediately and the child’s time with the mother be pursuant to these orders.

   12.The mother is restrained from taking the child to any medical treatment or assessments (other than any emergency treatment) other than with the child’s regular medical practitioner as advised by the father from time to time.

2. The hearing was conducted on the papers.

3. The maternal uncle relied upon an affidavit filed by him on 3 July 2009 and an affidavit filed by the mother on 24 July 2009 and 14 September 2009.

4. The father relied upon an affidavit filed by himself and one also filed by his partner.

5. All parties made references to the reports prepared by Dr S which had previously been received into evidence.

6. It is clear that the desire of both the maternal grandmother and the maternal uncle to have some contact with the child is genuine.  It seems unchallenged on the evidence that each of them has history of a close relationship with the child.

7. In the principal proceedings an interim order was made following a report of Dr S raising concerns in relation to the current care of the child and the problems that she was having, placing the care of the child with the father.

8. In accordance with the recommendation made by Dr S, orders were made restraining the mother and the mother’s family from having any further contact with the child either directly or indirectly, until further order.  Although the matter was previously mentioned before the Court on 24 July 2009 when this hearing was set down, no application was at that time made by the mother for any variation of the interim order.

9. The father seeks before the court the making of the order proposed by the Independent Children’s Lawyer with the additions proposed by him which will afford both the mother and the child the opportunity of spending some time with each other and communicating with each other between now and the time of the continued hearing.  It will also permit of the possibility of the child having the like conversations with the grandmother and her uncle.

10. There clearly are differences as to the extent of the time during which such contact will take place and also the supervisory conditions which the Independent Children’s Lawyer seeks to have attached to it.

11. The addresses of the uncle, Mr Gapes, and the grandmother, Ms Roden, were brief.

12. The maternal uncle submitted that his family has a special relationship with the child and that she had had many holidays with that family and that she was seen as being an integral part of that family.  He brought the current application he said because he had not had contact nor his family with the child for six months.  He says that the relationship with his family is independent of any relationship that the child might have with the grandmother, the mother or anybody else.

13. He put to the Court that the relationship between the child and his wife (her aunt) was special and that there ought to be contact to permit the child to enjoy that relationship.

14. The grandmother submitted that it was a cruel act to prevent the child seeing the mother’s family.  She said that she had a close relationship with the child and found it hard to comprehend how the child was denied the opportunity of seeing her, her mother or any part of her maternal family.

15. In relation to the orders that were proposed, the grandmother said that she would not accept any proposal for supervised contact - that was not what was going to happen from her point of view.  She further said that she had believed her granddaughter when she had made complaints about the father, she seemed in little doubt that her interpretation of those complaints was accurate.

16. Ms Gibbons made submissions on behalf of the mother.

17. The mother suggested in her affidavit, in somewhat emotional and exaggerated terms, that the child was being kept in some sort of prison with the father, and Ms Gibbons sought to suggest that the father’s care was not the reason for the child’s improvement.

18. The decision that has been made in this case thus far to make an interim order placing the child with the father with no contact with the mother is one which was based on the advice of Dr S.  She has seen the child most recently in June of this year and says that the child’s condition and behaviour, school attendance and her relationship with her peers has all improved.  She comments on the relationship between the father and child positively in the following terms (Report dated 6 March 2009):

    The nature of the relationship with the father is important.  There was no evidence of anxiety, fearfulness or oppositional defiance with him.  When the child uses the father as a homebase, she can be content and secure that he is a competent parent.

    I do not believe that the father has been abusive toward [the child] or behaved violently towards her.  The interviews show a close understanding between father and daughter when they are together, despite what [the child] said or the dramatic pictures she drew.  [The child] had trouble remembering the times and places of contact last year and yet the incidents that she recounts which allegedly happened 2 years ago at contact seem to have gained in importance and drama with time.

    The question of risk of self harm also warrants consideration, however there is no preceding acting out behaviour or violence in this family.  [The child] has usually internalised her distress and the likelihood of deliberate self harm is probably quite low.  I think that it would be likely that the mother may try to prevent the change of residence and despite her protestations, she would be likely to make some attempt to take [the child] back.  As previously stated, the mother feels that she owns [the child] and will relinquish control of her with great difficulty.”

19. The Doctor’s predictions as to the security of the relationship the child has with the father seem to have been vindicated by events which have occurred during the interim period between the Doctor’s first report and her last report.

20. The child no longer had the oppositional and defiant behaviour she had previously demonstrated, she had regularly attended school, she had been able to form peer relationships, she had lost weight (it being suggested that she had previously been overweight) and she appeared to be flourishing.

21. It is a recommendation of Dr S that the child should resume contact with her mother but given the matters no doubt which she had expressed in her earlier reports concerning the dangers to the child in that enmeshed relationship with the mother, she has taken the view that such contact should be gradual and supervised and needed to recommence in the following terms (Report dated

    
    

    12 June 2009):

    1.That [the child] have supervised telephone contact with the mother, 2 days a week, supervised on the speaker phone by the step mother, at 7.00 pm on Tuesday and Friday evenings.

    2.This phone contact should continue for 6 months.

    3.That there be supervised face to face contact at the [G] Contact Centre for two hours, commencing in 3 months time and that this should continue until the end of the school year, December 19, 2009.

    4.That there be 1 day unsupervised contact for single days, once a week, through the Christmas school holidays at the [G] Contact Centre for 6 hours.

    5.From February 2010, there be one evening contact with the mother each week.  The mother to pick [the child] up from school on Thursday afternoon and drop her back to school Friday morning.

    6.From July 2010, there be 2 nights of overnight contact.  The mother should pick [the child] up from school Thursday afternoon and drop her at [G] Contact Centre at 5.00 pm on Saturday.

    7.In addition to Thursday/Friday with her mother from the beginning of the December holidays in 2010, the mother have 1 week contact in each school holidays, picking [the child] up from school at 3.00 pm on the last day of term and delivering her to the [G] Contact Centre on the Sunday afternoon, 9 days later.

    8.If the mother failed to return the child, then all contact would cease immediately.

    9.The mother would not be allowed to seek unnecessary medical assessments of the child and if she considered the child was medically unwell, that she would be able to contact the father or the father’s GP.

22. In determining this matter I am obliged to consider the various matters referred to in Section 60CC.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see Section 60CA). In determining what is in the child's best interests, I must consider certain matters under Section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see Section 60CG).

3. I will also be guided by Section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.

4. I am required to consider matters set out under Section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   “…  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

   Subsection (4) provides as follows:

   “…  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

6. Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is desirable and thought beneficial by the father in these proceedings that the child should have a meaningful relationship with the mother.  I do not get the same impression from the mother’s evidence.  It would undoubtedly be the case that the child should be able to have a meaningful relationship with both of her parents providing that that relationship did not cause either harm to the child or endanger the possibility of a close relationship with the other parent.

2. There are real concerns in this case on the evidence thus far adduced that there is a real risk of such harm and endangerment.  On the mother’s case a risk of physical harm and on the father’s case no such risk but a risk of emotional and psychological harm.  These issues will be finally determined when the case is concluded;  the present proceedings are interim ones.  Nevertheless I am obliged in the interests of this child to take into account both possibilities at this stage.  Nothing has come before me suggesting any current problem of violence.

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

3. The psychological harm done to this child from whatever cause (the mother alleges the father’s abuse of the child, the father alleging it was as a result of the mother’s enmeshed personality with the child in accordance with Dr S’s report) was on the evidence of Dr S significant and dangerous.

4. It was on the basis of that report that the arrangements for the care of the child were changed.  The child has now demonstrated both to Dr S and on the evidence of the father an apparent complete recovery from that harm.  It is suggested by the Independent Children’s Lawyer that the application of Occam’s Razor principle requires the adoption of the simplest explanation of those events.  The child was in the mother’s care and was suffering and is now in the father’s care and is not.  Ergo it is the father’s care which is more beneficial to the child.  I do not intend to adopt that as a final conclusion at this time since all the evidence is not in but prudence requires that any interim arrangement take into account the vital importance of maintaining the advances which appear to have been made.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child has said on occasion that she misses her mother but has also been pleased with her life with her father.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. The child on the evidence had a primary attachment to the mother.  That it was a primary attachment does not mean that there were not other and significant attachments for this child and the evidence is she has an attachment to the father and his partner and her children and also has an attachment to her grandmother and her uncle.  The evidence of the uncle particularly is more measured than that of the grandmother and the picture he paints of a continuing relationship between the child, his family and their children.  The nature of the relationship with the grandmother is more of shared similar interests.  They both have interests in music and the arts generally.

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

3. The orders sought by the father and the evidence given by him suggests that he wants a continuing relationship between the child and her maternal family if that can occur without a repetition of the problems envisaged by Dr S’s evidence.  He echoes the view expressed by Dr S that a reintroduction of those relationships should be a progress in measured and small steps with a view to avoiding what he and Dr S perceives was the harm to the child arising out of them. The mother for her part and the grandmother it seems see little alternative to the provision of an order for sole parental responsibility and that the child live with the mother with only such contact taking place between the child and the father as this child would express a wish to have from time to time.

4. Given that the mother and the grandmother are totally unwilling to accept that the problems from which the child suffered were other than due to some abuse of the child by the father it seems to be highly unlikely that even if I were to make such an order on an interim basis the child would not be encouraged and probably would be actively discouraged in her relationship with the father.  It seems that that family view may also be shared by the uncle although I have yet to hear from him fully in that regard.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

5. The child is presently happy.  The child is attending school.  The child is enjoying life with her father and his partner and her children.  The child now attending school is in contradistinction to the child who was in the mother’s care and is, on the evidence, not only surviving contrary to the mother’s expectations but also thriving.  We now have a child who does not have unacceptable absences from school, enjoys going to school, does not suffer from defiant and oppositional behaviour, has good peer and teacher relationships and is emboldened to spend time with her peers in excursions and the like.

6. The likely effect of change in residence at this stage would be that the child would be deprived of the environment in which this significant progress for her has occurred.

7. That is not to say that some change should not be made.  Whilst I am not going to deal with the application the mother made for orders to be made in terms of the orders she apparently seeks in the hearing to take place in six weeks time, I think it is appropriate, given the child’s progress, to test the waters as it were and take some, albeit small steps along the path hopefully to the child having an appropriate relationship with her mother and her maternal family.  If that goes well then it may be a predictor for further progress along that path.

8. Because of the caveats raised above and the matters referred to by Dr S I am of the view that that progress does indeed need to be cautious and measured.  The mother’s response and that of the child’s extended family to the orders that I make will be instructive for the future.  I do see that in considering the applications before me some merit in the Independent Children’s Lawyer’s submission to the effect that it is the relationship with the mother, given the primacy of original attachment, which should be the first object of any attempted reintroduction. That is not in my view to detract from the importance both now and in due course of the child resuming a relationship with her maternal family, if it can be done in a way which is safe and protects her from the dangers perceived by Dr S in her former arrangements for care.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

9. There is no significant practical difficulty in the orders I propose to make in the nature of this difficulty.  I propose to make orders which share some of the costs otherwise which might be incurred in giving effect to the order.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

10. The father appears to have demonstrated a significant capacity to provide for the needs of the child, including her emotional and intellectual needs.  I on the evidence thus far have some difficulty in asserting the same for the mother and the grandmother.  It seems clear that the mother and the grandmother continue to bear great animosity toward the father which does not seem in the mother’s case, given the extremely emotional language used in her affidavit, to be abated.

11. The grandmother clings unswervingly to the belief that what her granddaughter said means that there was an abuse of the child by the father and sets at nought what is said by Dr S in this regard.  Neither the grandmother nor the mother is prepared to concede the development and improvement in the child in the father’s care as being anything to do with that care.  Descriptions of her present position as being imprisoned do not find any basis in fact.  The uncle perhaps may be more open to the development of some insight into the possibility that the allegation of abuse arose perhaps from a misinterpretation of what was said to have been said.

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. I refer to all those matters in this regard which are set out in the report of

   
   

   Dr S.  This little girl appears highly intelligent but her history of school attendance and anxiety and other health problems whilst in the care of the mother was quite grave.  Since she has been in the care of the father she has cast aside all those matters it seems.  Whilst the aetiology of the past problems of the child remains for further determination I think the evidence presently suggests that she is doing well and a relapse should be guarded against.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

2. This is not a relevant issue

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

3. On the evidence thus far it is suggested that this mother has had real problems in the discharge of her responsibilities.  It is suggested by her that her whole conduct was to protect her child from the abuse from which she had suffered and to presumably prevent any repetition of it.  There is not presently any strong corroborative evidence which supports the view that the child ever was the subject of abuse and indeed that is gainsaid by Dr S.  If the position were that the mother, either because of some difference in her psyche or angst about the father, is unable to ever consider that there might be some alternative explanation of her perception then I have concerns that a present unsupervised return of the child to her care even on a partial basis could present a risk to the child.

   (j)any family violence involving the child or a member of the child’s family

4. Whilst it is asserted by the mother that there has been family violence by the father to the child it is not to my mind presently established.  That position may change on a consideration of the whole of the evidence.  I agree that children should be protected from the possibility of violence but, in this case, doubt not only overshadows the allegation, but the reality is that there has not been any indication of any such problem since the child has been in her father’s care.

   (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

5. There is no such order.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

6. This being an interlocutory application is not a matter for consideration except in a very limited context and I believe the order that I make, given that the hearing is continuing in six weeks, is the best I can do to stabilise a situation for this child until then.

   (m)any other fact or circumstance that the court thinks is relevant

7. There are none.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

2. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.

2. The presumption does not apply where there has been family violence.  In this case there has been no proved family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.

5. In this case there is no order sought on an interim basis in an application before me that there should be any change in the current exercise of parental responsibility and I do not intend to make any.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.

2. For the reasons set out above and the evidence presently received in this case I do not propose to make an order for equal time because of what I see as a presently not fully investigated unacceptable risk of harm to this child in so ordering.

The Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date:  25 September 2009