Rogers & Mowson (No 2)
[2022] FedCFamC1F 1058
Federal Circuit and Family Court of Australia
(DIVISION 1)
Rogers & Mowson (No 2) [2022] FedCFamC1F 1058
File number(s): NCC 554 of 2021 Judgment of: SMITH J Date of judgment: 13 December 2022 Catchwords: FAMILY LAW – interim application – oral reasons – one child aged 14 – where the father is medically retired based on mental health status – where the father is charged with assaulting a mentally ill person – where the father denies any wrongdoing and says the charges result from a conspiracy – where the police case is based on footage and witnesses – where the criminal trial is outstanding - where the father has a history of alcohol abuse – where the single expert psychiatrist holds concerns about the father’s ability to regulate his behaviour and recommends supervised time and other safeguards around alcohol use – where the father’s treating psychiatrist largely agrees with the single expert psychiatrist’s recommendations –where the mother seeks no time or in the alternative professionally supervised time – where the father seeks unsupervised time or in the alternative supervision by the paternal grandparents – where the ICL seeks supervision by the paternal grandparents and the other recommended safeguards - Ordered professionally supervised time with breathalyser testing and CDT testing. Legislation: Family Law Act1975 (Cth) Part 7 Division 5, ss 60CA, 60CC, 64B, 65AA, 65D, 65DAA, 69ZL. Cases cited: Banks & Banks [2015] FamCAFC 36
Rogers & Mowson [2022] FedCFAMC1F 507
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346
In the Marriage of B & B (1993) 16 Fam LR 353
Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69
Marvel & Marvel(No2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Stott & Holgar & Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 103 Date of hearing: 12 December 2022 Place: Newcastle by Microsoft Teams Solicitor for the Applicant: Toronto Legal Solicitor for the Respondent: Crowther Sim Lawyers Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer ORDERS
NCC554 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROGERS
Applicant
AND: MS MOWSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
13 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter remains listed for mention on 4 April 2023 at 2:15 p.m., by way of Microsoft Teams.
2.Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted for an earlier mention date or to have the matter administratively adjourned.
3.Order 3 of the Orders dated 30 January 2019 is suspended.
4.X born 2008 (‘the child’) spend time with MR ROGERS born 1985 (‘the father’) only on the following supervised basis:
(a)Each alternate weekend on a day and time as directed by the agreed supervision service for a period not to exceed four (4) hours.
(b)Time is to start on the first weekend that a supervision service is available.
(c)The father is to pay the fees of the supervision service.
5.The father and MS MOWSON born 1981 (‘the mother’) shall both approach both E Contact Service and J Contact Service (“the Contact Service”) for the purpose of arranging supervision.
6.In respect of each of both E Contact Service and J Contact Service, the parties will:
(a)Telephone the Contact Service within 48 hours of these Orders being made and arrange for an appointment for the assessment for suitability of supervised time between the mother and the children:
(b)Attend any assessment;
(c)Comply with any appointment made by the Contact Service;
(d)Comply with all reasonable rules of the Contact Service; and
(e)Comply with all reasonable requests and directions of the staff; and,
(f)Provide a copy of these Orders.
7.To facilitate contact, and unless directed otherwise by staff at the Contact Service:
(a)The mother will deliver the child to the Contact Service fifteen (15) minutes prior to the designated time, leaving the vicinity of the Contact Service immediately;
(b)The father shall ensure they are not present at the Contract Service until the designated time and that at the end of this time, they immediately leave the vicinity of the Contact Service; and
(c)The mother will collect the child at the time designated by the Contact Service.
8.That prior to spending time with the child, the father is required to provide a zero‑alcohol reading to commence time. Any device or cost of same shall be at the father’s expense.
9.That the father is restrained and an injunction granted, preventing the father from giving the child, a supplement or any other substance/medicine that has not been prescribed for the child by her doctor, without the written consent of the mother.
CDT Testing
10.By 23 December 2022, the father (‘Testee’) is to attend upon a Medical Practitioner to obtain a referral to a pathology collection service (‘the laboratory’) to undertake the blood tests as set out below.
11.The testing shall be undertaken is chain of custody testing for:
(a)A Carbohydrate-deficient transferrin (CDT) test; and
12.Upon attendance at the laboratory for testing, the Testee is to:
(a)Provide a copy of these unamended terms to the hair tester; and
(b)Provide their current Australian Drivers License or other identification document with photo confirming their identity.
13.The Testee is to authorise and direct the laboratory to forward the results of such testing directly to the Court and citing these Orders at ...@....
14.These Orders shall constitute and order of the Court authorising the laboratory to forward such results as soon as reasonably practicable after they issue.
15.The Testee is to provide a copy of the results to all other parties, including any Independent Children’s Lawyer, within 72 hours of receipt.
16.No more often than once every 3 months the ICL may provide written notice to the father requiring him to comply with orders 10-15 above within 14 days of the date of the notice and the father is to comply, on the basis that the date in order 10 be read as the date of the written notice.
IT IS NOTED THAT:
A.The date of the father’s trial is not yet determined. The final hearing will not take place until that hearing has occurred.
B.The parties consider that a hearing date in late 2023 will probably be after the father’s criminal hearing. The Court will consider allocating such a hearing date with trial directions in due course, but may wait until confirmation of the final hearing prior to that occurring.
C.The father is to notify the Independent Children’s Lawyer and the other party of the trial date within 14 days of it becoming known to him, and the parties are to jointly notify the Court of the trial date when known. The father is to similarly notify the result of the criminal trial.
D.As the father disputes the circumstances of the incident the subject of the father’s trial the Court will require a copy of the footage at the hearing of these proceedings. Arrangements should be made by the ICL to subpoena that material from Police after the father’s trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Mowson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J:
These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act1975 (Cth) (‘the Act’) in an interim application for parenting orders concerning X, who was born 2008 and is now 14.
The parties are her parents, the father Mr Rogers and the mother, Ms Mowson. An independent children's lawyer has also been appointed.
The father has been medically retired from his employer and is in receipt of total and permanent disability (TPD) payments and workers compensation payments. His medical retirement and his inability to work in his usual duties arise as a consequence of serious mental health issues that have arisen from his employment.
As I said in an earlier judgment, it is a very difficult circumstance. Whilst I am very cognisant of that fact, ultimately, this matter is about X and her best interests and protection.
The mother is an educator who I understand is working about two to three days per week.
The matter was listed before me for final hearing on 7 July 2022 and was vacated by me of my own motion, because of late disclosure in subpoena material of the father's mental health concerns, along with associated issues of alcohol abuse, anger and impulse control issues. Significantly, those matters had caused him to be charged with assault on a mentally ill person.
I refer to my decision on the vacation, which sets out some parts of the relevant background material, Rogers & Mowson [2022] FedCFamC1F 507. That judgment should be read together with this one, and I will not repeat extensively what is there. However, I think it's going to be useful that I reproduce here my summary of the subpoena documents as set out in paragraphs [14 -15]:
14.The incident was captured on footage. I note that whilst this is an issue before another Court and I do not know the father’s position, the history which on the documents is that a person was being retained pursuant to the Mental Health Act. He was aware, therefore, that he was dealing with a mentally ill person.
15. The history as reported is that the person […]:
Became verbally abusive towards [Mr Rogers] and […] he was standing with at this time. [Mr Rogers] walked directly the front of [the person] where he is seated on a masonry wall. [Mr Rogers] said ‘You want to be a fuckin’ tough cunt’, the person […] said ‘What?’ and raised both hands with open palms facing in. [Mr Rogers] said ‘You want to be a tough cunt’ as he continued to move forward and then pushed the person […] with two open palms in the chest. The force of the push caused the person […] to lose balance and fall backwards so that his legs remained on the low wall, his upper body and head rested on the fence behind the wall.
I omitted the alleged victim's name in that summary, but it is relevant here and so I note it was Mr F. I also omitted to mention, but note, that according to the police fact sheet, not only were there police officers present, there was footage supporting the allegations. There were also others present who were said to be witnesses. These are relevant to the assessment of the risk where the father has, in effect, denied that version of incident when speaking with the various experts. I will come to that shortly.
Orders were made by consent and without admission that the father's time be supervised by his parents, the paternal grandparents.
As a consequence of the orders I made, an independent single expert psychiatrist was appointed, Dr G, and an ICL was appointed who has since appeared and who engaged in the interim proceedings.
I note that the final orders that were previously in place were those of 30 January 2019, as included in the mother's original court book at page 17 of 144. There were some issues in relation to interpretation and on 31 March 2021 Judge Betts made certain orders and notations. Then there are my judgment and orders of 7 July 2022.
In particular, I note that my order 18 and Notation A:
18.The orders of 30 January 2019 be amended so that the child's time with the father in paragraphs 3.3, 3.4 and 3.5, or otherwise as occurring by agreement as between the parties, is conditional on that time taking place in circumstances where a paternal grandparent is living in the same premises as the father during the time the child is with the father.
…
A.The father has consented to supervision pending Trial, without admission, on the basis of the conservative principles that apply to an Interim Hearing on issues of risk.
As I said, the independent children's lawyer was appointed and the parties retained Dr G, who is an independent forensic psychiatrist. He prepared a report, dated 20 September 2022, and that was admitted as exhibit ICL1 and is contained at page 7 of the ICLs court book before me. It is a long report and I won't go through the entirety of it. I think what is particularly relevant, though, is that Dr G, having been provided with the documents from police, asked the father about his past forensic history under that heading. Dr G recorded in his report the following:
PAST FORENSIC HISTORY:
When questioned in this regard [Mr Rogers] commented on having been involved in matters legal, matters relating to Post-traumatic stress disorder and the divorce and associated family Court matters.
At this point I questioned [Mr Rogers] as to whether he had been involved in any other matters legal. He initially denied that such was the case but when further questioned [Mr Rogers] stated that he had been charged in regard to pushing [Mr F] (aka [Mr F]).
When questioned as to the outcome of this charge, [Mr Rogers] stated that there had been no verdict arrived at in regard to this matter; that the matter had been adjourned. It is [Mr Rogers’s] assertion that [police officers] were directed to make statements in regard to the above matter and if they did not do so, they would be punished.
[Mr Rogers] stated that he did not know who [Mr F] is.
[Mr Rogers] stated that the person [Mr F] had declined to make a statement in regard to this matter and that the matter had been taken to the [relevant authority]; that charges would be proceeding regardless of there being a victim or not.
[Mr Rogers] repeated that directions were given that the matter would proceed without a victim; that the matters were proceeding on statements made by the police and of him making a comment in regard to that circumstance […].
So, it can be seen that the father denies that the events occurred as in respect of which he has been charged as set out in the police materials and fact sheet. As I understand what has been said, the father says that it is a conspiracy.
Now, that is a significant issue. Indeed, it raises a major issue. Either the father is the subject of a conspiracy by police which has led to him being falsely charged with serious offences, or else he is intentionally lying about the event to the expert, or, given some of the comments that have been made about his mental health status it is a possibility that his mental health status so impairs his judgment that it has led him to genuinely but wrongly posit a conspiracy despite objective facts supporting the charges. I cannot make any finding about those matters.
It is significant that at page 28 of his report, page 34 of the court book, Dr G says in respect of this event:
If the facts are assumed, it would be the case that [Mr Rogers] would be deemed to be a person exhibiting poor impulse control behaviour which would be a matter for the Court to consider in the context of his potential to interact with [X].
I think that probably goes without saying, although it is useful to the Court to have an expert confirm it.
That conclusion was certainly the basis of my concerns when I read the material when the matter was listed for hearing and why I took the course I did.
Dr G also, in the context of this alleged behaviour which has led to the criminal charges, at page 37 of his report, starting at 43 of the court book, says:
I do not consider it would possible, having regard to these circumstances, to assume that [Mr Rogers] would be a person who could be said to be able to control his behaviour.
I consider that on psychiatric grounds, it is important to ensure that [Mr Rogers], on those occasions when he has care of his daughter, [X], that it is able to be confirmed by breathalyser he has not consumed alcohol, especially he has not consumed alcohol to excess. The more alcohol consumed, the more likely he will exhibit impaired judgment.
It is my assumption in regards to the charges for which he is to face Court, that poor impulse control and impaired judgment took place (if the charges are sustained) occurred in circumstances where there was no alcohol used. If that assumption is assumed, the potential for poor impulse control behaviour arises even in the absence of the aggravating effect of alcohol.
I note that there is evidence that [Mr Rogers] in spite of it being stated that he should not denigrate [Ms Mowson], does so as does his current partner. I consider that such imposes a significant stressor upon [X].
Now, again I cannot make any finding of fact, which I will later discuss about the law, but given the father’s disclosed mental health concerns, and given that the police brief is said to include footage, and statements from witnesses i.e. people not part of the police force, and given the authority prosecuting, for present purposes, while I cannot make any finding about this issue, I must take into account the serious allegations made, and the range of possibilities, and weigh them in my assessment. I will come to the principles that require me to do that, in due course.
Ultimately, in any trial, I suspect I will need to see that footage, and that can be dealt with, in due course.
Furthermore, Dr G also said at 39 of the report, 45 of the court book:
[Mr Rogers’s] presentation is consistent with an angry, hostile person suffering from a mental illness of Post-traumatic stress disorder and substance use disorder (alcohol), possible pathological jealousy syndrome he denigrates his former wife and it is my impression that there is a risk in this circumstance of his attitude as being one where the interests of the child become secondary to the battle between him and his former wife.
(As per the original)
In the context of Dr G’s assessment and taking into the account the possibility, as I understand it, that the events that are said to be captured on camera, in fact, were as the police say they are or the prosecuting authority say they are, then Dr G concluded:
In regard to [Mr Rogers] accessing the child, from a psychiatric viewpoint, I would consider it would be appropriate to:
i.consider supervised access at an appropriate centre
ii.Undertake mandatory breathalyser testing to ensure that alcohol consumption has not occurred prior to access.
iii.That [Mr Rogers] continue to undergo psychiatric treatment for his PTSD and alcohol excess.
iv.That [Mr Rogers] be referred by his treating medical specialist for CDT testing at varying intervals – CDT testing, a specific test for excessive alcohol use, would indicate whether excessive alcohol ingestion has taken place in the preceding 10 to 15 days.
That opinion is, of course, untested, and that is one of the essential elements of any interim hearing, and I will discuss it a little bit later the issue of how I must balance that against other evidence, but I also note that ultimately my obligation is to take a cautious approach in ensuring the safety of a child who is the subject of an application before me.
I also note, before I leave Dr G’s report, that at page 38, 44 of the court book, having assessed X as well as the mother and the father, he said:
In terms of [X’s] capacity to make a risk assessment, she is by virtue of her age and maturity to a degree limited in that regard.
That is in the context of the fact that X has a generally positive view about the father, although she expressed some ambivalence in regard to attending the residence of the father’s new partner.
X is clearly affectionate towards her father, as he has for her. I note that she raised the current level of contact every second week as being a good arrangement, and said that is the kind of arrangement she would be looking for with, perhaps, one more day.
The father, in his case led, without having previously obtained leave, expert reports of Dr D, who is the father’s long-term treating psychiatrist, dated late 2022, and Mr H, the father’s long‑term treating psychologist, dated late 2022.
Starting with Dr D, who is clearly very supportive of the father. Dr D was asked to consider the report of Dr G. At page 18 of 19 of his report, which is page 103 of the father’s court book, he referred to and considered the proposals Dr G made to provide for the child’s safety. In terms of the recommendations, he went through them.
In terms of what he referred to as supervised access, Dr D said:
This seems reasonable as a start, provided there is a plan to liberalise this condition after a period of problem-free access.
So, there is agreement to the requirement for supervision, but a caveat placed upon that which I will come back to.
In terms of breathalyser testing, he said:
I agree.
In terms of continued treatment of continued treatment of PTSD and alcohol use, he said:
I agree.
And in terms of the recommendation for CDT testing, he said:
This can be arranged.
By which I understand he did not disagree.
So, Dr D’s views about Dr G’s recommended requirements to protect X on an interim basis are not substantially different.
Now, in terms of the criminal charges, at page 13 of 19 of his report, Dr D, under the heading, ‘10 The criminal charges’, says the following:
I have seen no paperwork about this.
I understand from [Mr Rogers] that he was involved in a violent [incident] and that someone […] alleged that he had applied undue force.
[Mr Rogers] believes that the matter lacks substance and is being driven by [others] moved by a mix of malice towards him and personal ambition.
Dr D has been given the history from the father that there is no merit to the charges and, indeed, it is being driven by others which, in effect, is to say a conspiracy. Again, I do not know what the truth is and, certainly, a conspiracy is not impossible, but it is a very difficult situation, particularly where I am told from the police material that there is body-cam and people who are outside the police force who are witnesses.
Dr D also suggests it is possible to distinguish between the father’s conduct and impulse control at work and in the domestic situation. He says the triggers are different and, therefore, it is not appropriate to assume that the risks he may pose at work translate into the domestic situation. That may be so, but, certainly, on an interim basis, it is not a conclusion I could draw on an interim basis, given the nature of the allegations involved.
Dr D’s report includes at page 19:
I expect that the father’s mental health, which has in this matter been under scrutiny, will improve once access to his daughter is uncontested.
Whilst that may be correct, it seems to me that Dr D has focussed mainly on the father and not on the child’s wellbeing in his report.
It appears that Dr D has, broadly speaking, accepted the father. Many practitioners would say that as a treating practitioner, he is not only entitled to but that he is obliged to accept his client’s evidence at face value and not to challenge or test it unless it is clearly delusional and cannot be true.
Those circumstances must impact on the weight I give to Dr D’s opinion.
In terms of litigation, his relationship with the father this puts Dr D in a difficult position. Whilst treaters have the advantage of having seen the person for a long time, treating practitioners are under a disadvantage in this respect. Particularly psychiatrists and psychologists. The nature of their therapeutic relationship requires them to have, to some extent, a degree of empathy for their client. When someone such as Dr D has been seeing the father since mid-2020, and has seen him regularly and worked closely with him, it is very difficult then to stand back and take a completely independent view. That is not a criticism of Dr D.
There is a reason that judges cannot hear cases involving their family and friends, and it is not just because of the perception that they may have a bias, but the reality of human nature is if you have a good long-term relationship with someone it is extremely difficult to stand back and take a purely impartial view of them, and to honestly consider the fact that the person who you know and have a good relationship with may not be being honest with you.
That is one of the reasons Courts prefer independent experts, not just because they come to the matter with no preconceptions but because there is less risk of capture. It does not mean that the history and views of a treater are not useful, but it does affect the independence of the expert and, therefore, in my view, the weight to be given on questions of their assessment of the patient’s candour. That is relevant given the father denies the criminal allegations.
Nevertheless, and in any event, the recommendations Dr D makes, basically, support Dr G, except for the opinion that after a period of supervision it should be lifted.
In that circumstance, it is a bit surprising that the father’s proposed orders do not seem to take into account either Dr G’s recommendations or his own treating psychiatrist Dr D’s general agreement with those recommendations.
Mr H’s report of 29 November 2022 is much shorter. On this question of what had occurred in the alleged assault, I note that at the second page of his report, on page 69 of the court book, in the second last paragraph, towards the bottom, he says:
[Mr Rogers] disclosed that the alleged assault was him forcing a verbally abusive man to sit down […].
Well, that may be the case and that may be what the footage shows, but that is certainly not what is described in the police material. So, with no criticism of Mr H, he has come to a supportive view of the father, but on the basis the father was forcing someone to sit down. It is not clear whether he know the details of the allegations.
Where it is not clear whether he knows what the allegations are, then as an expert whose factual assumptions may be incorrect, and does not address the allegations, his opinion cannot be given any weight, as the assumed facts do not match the reality, at least the reality in terms of weighing what should happen given the nature of the allegations.
Now, of course, if, in fact, what the father described to Mr H is what happened, then his opinion can be given weight. However, he has not considered the possibility, in forming his view, that, in fact, the police are not involved in a conspiracy against him, and that there is, in fact, footage which shows that is how he behaved and that he committed an assault.
Even so, he says in his last paragraph that he thinks:
The supervision of [X’s] grandparents should be enough to alleviate [Ms Mowson’s] concerns about [Mr Rogers’s] capacity to parent…
Now, as I say, that is based upon him not apparently taking into account the possibility of the father allegedly losing of control, when not intoxicated, in respect of a person who had mental health problems.
Mr H’s view, not unreasonably, also seems to be focussed on alleviating Ms Mowson’s concerns. Mr H, does not seem to recognise that the issue is the protection of the child and what is reasonable given the available material.
This is not a criticism of Mr H. It is an assessment of the fact that he has provided a report for a client with whom he has a therapeutic relationship, and has not sought to provide an independent single expert report after the review of all of the material. Therefore, however, I can only give very limited weight to what Mr H says, in circumstances where he does not seem to have the full picture of the possibilities.
I allowed the reports of Dr D and Mr H on an interim basis, but for the reasons I have indicated, that does not mean that I will necessarily allow them in a final hearing.
If the father wants to call a different single expert, who has got the full history and is not his health advocate, to test Dr G’s opinion, well, that is something he will need to consider making an application to do. I am not necessarily against that. Experts, like judges, are not perfect, and different experts may reasonably have different views.
There is a lot of factual dispute between the parties and there was a reference there to denigration, which Dr G noted had been raised, and jealousy. Now, that is all in contest. I cannot make any factual findings about it, but I have to weigh the allegations and the denials.
Factually, what occurred was that in light of Dr G’s opinion, the mother stopped complying with the current orders, which were not consistent with Dr G’s opinion, and she filed an Application in a Proceeding on 28 October 2022.
In essence, she wanted the orders of 30 January 2019 to be dismissed or one might say suspended. She wanted order 1 of the orders of 30 January 2019 varied, which provides for equal shared parental responsibility, with her to have sole parental responsibility and order 3 of the orders made on 30 January 2019 dismissed. I note that Order 3 is the order that, basically, covers the time the child will spend with the father. Her orders in the descending proposal were for:
4. a) No Time.
Where she says that it is not possible for there to be safeguards that are sufficient, given the issues that have been raised.
Her next proposal, in the alternative, is for:
4. b)On a supervised basis at times and days as directed by the staff at [E Contact Service], but no less than two hours per fortnight.
Or otherwise as determined by me.
The mother then outlines a set of proposals at orders 5, 6, for how they would go about getting a professional supervision centre consistent with Dr G’s opinion. As I have previously said, Dr D seemed to agree with Dr G, although he did not specify what he thought about the grandparents supervising in his final conclusion.
The mother proposed that prior to spending time with X, the father be required to provide a zero-alcohol reading to commence time, at his expense. That he be restrained by injunction from giving X supplements or other medicines, which I understand is not be something that is now in issue in any event. She proposed some general prohibitions on discussing the other parent and their families in the presence of the child, non-denigration orders in effect, and not to use the child to pass messages.
In effect, the mother starts with a no time proposal. Otherwise, broadly speaking, she is seeking what Dr G suggested, although she did not actually raise CDT in her proposed minute of order, as I understand from her solicitor’s submissions, if there is to be time, she adopted that recommendation, as also proposed by the ICL.
I will note that the ICLs position, as set out at page 6 of the ICLs court book, is that the final parenting orders made on 30 January 2019 be confirmed. The ICL proposed orders for CDT testing within 14 days, although it is not clear how often that is to occur. The ICL further proposed that pending further order, the father must abstain from consuming alcohol 12 hours prior to spending time, that he enter into an undertaking with the Court he will not give any medications to the child and, in oral submissions, as I understand it, that the proposal was that the orders of 30 January 2019 proceed on the basis that the grandparents are supervising.
The father’s orders, as set out in his response filed on 6 December 2022 at page 7, proposes the discharge of all prior orders, seeks equal shared parental responsibility, the child live with the mother and the child spend time with the father during school term from after school each alternate Friday to before school the following Monday or otherwise as agreed and half school holidays.
The father’s proposal includes orders for Mother’s Day and Father’s Day, educational and extra-curricular activities, changeovers, communication, information sharing, overseas travel and general restraints.
There is not, as far as I can see, any reference within the father’s proposal to supervision. I understand that is his position, despite the fact that even the expert evidence he called from Dr D, his psychiatrist, did not suggest there should not be supervision now, and Mr H said there should be supervision, but by the grandparents, although Mr H seemed to premise that on dealing with the mother’s concerns not the father posing a risk.
Before I come to my consideration, I will note that the parties, including the ICL, are proposing parenting orders as defined in Part 7, Division 5 the Act. I note section 64B and the Court’s power to make such orders under section 65D of the Act. The paramount consideration that guides my decision-making today is, of course, what is in X’s best interests. I note section 60CA and 65AA of the Act. The primary considerations when determining what her best interests are as set out in section 60CC(2) of the Act. First and foremost there is the need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The second consideration is the benefit to her of having a meaningful relationship with both parents. The Act makes clear at 60CC(2A) the greater weight is to be given to protection.
These are, of course, the twin pillars that underlie the Family Law Act, as noted in Mazorski & Albright [2007] FamCA 520 at 3:
The provisions in the Family Law Act1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
There are a range of additional considerations at 60CC(3). However, as the Full Court said in Banks & Banks [2015] FamCAFC 36, at 48 to 50:.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
I note what is said about the presumption of equal shared parental responsibility, and if the presumption applies, the Court must consider, pursuant to 65DAA of the Act, equal time, or otherwise such time or significant or substantial time, or otherwise such time as in the child’s best interests. I will come back to these matters.
I am in a situation where I have an interim hearing, I note what was said in Goode & Goode [2006] FamCA 1346, particularly at 68, where the Court said:
In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry 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 the issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, the parties’ respective proposals for the future.
I further note what was said about the legislative pathway as set out in paragraphs [81- 82]. I note the competing proposals.
The issues, really, here are safety and risk. There are not that many agreed or uncontested facts. In Eaby & Speelman [2015] FamCAFC 104, considering Goode, the Full Court said at 18:
…It is true that in Goode & Goode at [68], the Full Court said the circumscribed nature of interim hearings means that the Court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, 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…
That seems to me to be extremely important when one considers the very serious criminal charges the father is facing. He says it is a conspiracy. The police material which I have, which seems to have been the basis of the relevant authority’s decision to proceed, and which purports to have video evidence, says something different. I cannot make any finding of fact, but I must take the police material into account when assessing risk.
I note what was said in Marvel & Marvel(No2) [2010] FamCAFC 101:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
The core issue of this case is risk. In SS & AH [2010] FamCAFC 13, the Full Court said at 88 that the Court must, at an interim hearing, be circumspect in its findings. And, indeed, I will make no findings about whether or not the alleged assault occurred.
However, the Court also said in SS & AH [2010] FamCAFC 13 –at 100:
… Apart from relying on the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact of 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.
In Deiter & Deiter [2011] FamCAFC 82 the same was effectively said.
I note what was said in M & M (1988) 166 CLR 69, and in Stott & Holgar & Anor [2017] FamCAFC 152 particularly about safeguards, and also the risk assessment process as discussed in the recent decision of Isles & Nelissen [2022] FedCFamC1A 97.
The difficulty the father faces in relation to the orders he seeks is that even his own psychiatrist Dr D accepted that supervision would be appropriate, at least on an interim basis, and Mr H accepted supervision, by the grandparents, was appropriate.
Therefore, it is difficult to see how the father maintains the proposal he makes that supervision is unnecessary. It would require me to not only not accept the view of the single expert, but to not accept the acceptance of that view by the father’s own treating psychiatrist.
The other question that, then, arises is the question of, if supervision is required, whether the grandparents should be the ones to supervise given the nature of what is before me.
In the Marriage of B & B (1993) 16 Fam LR 353 (‘B & B’), the Full Court said:
3. Who should supervise access?
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, ``Supervising Visits between Parent and Child'', Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).) Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
That decision binds me, and I am required to apply B & B when I consider whether or not the grandparents should be allowed to supervise, if supervision is required. As I have said, the mother’s submission is, basically, that there is clear evidence of risk. Not only the independent expert but Dr D support protections or safeguards.
The question of the appropriateness and implementation of safeguards is as set out in M & M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests, the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Stott & Holgar [2017] FamCAFC 152, the Full Court considering that said at [37]:
…In some cases, a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one when it is feasible and it is of ‘benefit to the child’.
(emphasis in the original)
Isles & Nelissen [2022] FedCFamC1A 97 has clarified some issues around responding to risk as a possibility or probability or certainty.
In this case, given that there is police material which I have seen which suggests that there is video evidence, and witnesses who apparently give evidence against the father, and where the independent Director of Public Prosecution has determined that it is appropriate to prosecute, and both the single expert and Dr D accept supervision is presently appropriate, whilst I understand and acknowledge the father's denial and accept that it may in fact be that there will be a finding that he is not guilty, and indeed it may be that for he is the subject of persecution by police officers, I find, and it seems to me almost must find on the evidence, that there is a real possibility of issue of risk of the father losing control with X in his care and I consider that an unacceptable risk.
The question then is whether safeguards are appropriate and if so what safeguards. I accept the mother’s concerns are genuine. However, I have a single expert whose evidence, as I said, whilst not tested seems well reasoned. Notwithstanding that limitation, where the single expert gives recommendations, which seem to me to be reasonable and consistent with the kinds of protections one commonly sees, and where the father's psychiatrist agrees, whilst there is an unacceptable risk of unsupervised time, I am satisfied within the relevant principles that it would be appropriate for the child to spend time with the father given those safeguards.
In terms of who should supervise, I note that I am bound by the principles as set out by the Full Court in B & B. In some cases where the parties agree that there is a mutually known friend, or both trust a grandparent, with everyone's agreement the Court can and sometimes does allow supervision by family and friends.
Here, the mother does not accept that is appropriate. I have nothing from the grandparents to indicate that they understand the serious issues that are being raised and the onerous obligation that would be placed upon them as supervisors. In those circumstances, the exception that may apply doesn’t apply, and I am bound by B & B. In my view, on the facts of this case, supervision should be through an appropriate professional service provider.
There is obviously a cost issue, although the father says he is receiving both Workers’ Compensation and TPD payments. I don’t know what they are. The mother is only working two or three days a week and is primarily responsible for financial support. In those circumstances, I think the appropriate order is to be structured so that the child is to spend supervised time with the father with such supervision to be provided by a professional supervision service at his cost.
No submissions were made against E Contact Service. So I will make that order, although if the parties can agree on another suitable supervision service, they can do that if there’s better availability or lower cost. I will say that the supervision should occur on a weekend day as directed by staff at that supervision centre, and I will say that is up to four hours per fortnight. The amount of time the father uses may depend upon his financial circumstances.
Given his history of alcohol abuse, which he has disclosed, despite what he says about his current situation, I’m going to also adopt the expert’s recommendation that he undertake breathalyser testing immediately prior to supervised time and show that to the supervisor, and I understand he consents to this.
I will also make an order, as I note that was proposed by the ICL, in my own format, that the father is to undergo CDT testing within 14 days of these orders and thereafter as requested by the ICL. Those protections are perhaps less relevant where there is going to be supervision but still appropriate.
Also I will note that, by consent as I understand it, the father has agreed that he’s not going to give any medication to the child not prescribed to the child by her doctor and I will make that order.
I note the question of parental responsibility is a difficult issue. The allegations of family violence made by the mother are untested. The matter in respect of which I have evidence is violence in the workplace. I am not aware of any major decisions that need to be made. In these circumstances while I will suspend order 3 of the orders of 30 January 2019 while supervision is taking place, I am not satisfied it is appropriate to and I will not suspend order 1, and for the moment the parties will continue to share equal shared parental responsibility. I note that I’ve considered section 65DAA, but for the risk reasons given it’s clearly inappropriate that there be shared or significant and substantial time as defined in the Act.
Those are my reasons.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 December 2022
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