SAFFERY & SALBER

[2020] FCCA 1902

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFFERY & SALBER [2020] FCCA 1902

Catchwords:
FAMILY LAW – Gathering evidence on an urgent basis – hearing conducted by telephone due to COVID-19 pandemic – interim care arrangements for a young child – parenting arrangements – best interests of the child – allegations of risk to the child in the mother’s care – where the father presents the child to a medical professional on each occasion that the child is in his care – considerations under section 60CC.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases cited:

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584

Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486

Gordon & Gordon [2015] FamCA 616

Johns & Jasapas [2016] FamCA 471

Harridge & Harridge [2010] FamCA 445

Keats & Keats [2016] FamCAFC 156

SS v AH [2010] FamCAFC 13

Goode & Goode (2006) FLC 93-286

Marvel& Marvel (No.2) [2010] FamCAFC 101

Lansa & Clovelly [2010] FamCA 80

Applicant: MS SAFFERY

Respondent: MR SALBER

File Number: PAC 5422 of 2017

Judgment of: Judge Harman

Hearing date: 5 June 2020

Date of Last Submission: 5 June 2020

Delivered at: Parramatta

Delivered on: 5 June 2020

REPRESENTATION

Solicitors for the Applicant: Ms Alam of Kathryn Renshall Lawyers

Solicitors for the Respondent: Mr Buckley of Thexton Lawyers

Counsel for the Independent Children’s Lawyer: Mr Blank

ORDERS

1. Suspend all prior parenting orders with respect to the child X born in 2014.

2. Pending further Order, X shall live with his mother Ms Saffery.

3. Pending further Order, Ms Saffery shall have sole parental responsibility for major issues decisions with respect to X born in 2014.

4. Pending further order, X shall communicate with his father by FaceTime or similar video call facility not less than three (3) times per week as agreed between the parents or, failing agreement, each Tuesday, Thursday and Saturday between 7.00pm and 7:30pm, with the father to initiate the call and with the mother to ensure that X is available in that period of time, that her phone is switched on and available to receive video calls and enable X to speak with his father.

5. Pending further Order, X shall spend time with his father on a supervised basis as agreed between the parties and/or as directed by the Independent Children’s Lawyer, including but not limited to time and/or communication at any Contact Centre that can facilitate time (whether face-to-face or by other means) or by utilising a private agency such as Connecting Families.

6. Note: The Court is advised that Connecting Families is available to provide face-to-face supervised visits in or about the City B area in two weeks or so and such periods should commence provided they are affordable to the parties and the Independent Children’s Lawyer supports and directs that it be so.

7. X shall be delivered to the mother at MacDonald’s City B 12.00noon tomorrow 6 June 2020.

8. The matter is adjourned for further mention and directions to 21 August 2020 at 10:30am.

9. Note: The purpose of the adjournment is to enable the above arrangements to go into effect and for an application to be made by the Independent Children’s Lawyer for the funding of a Part 15 Report and, if possible, a minute of order to be drafted and circulated to provide for such a Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5422 of 2017

MS SAFFERY

Applicant

And

MR SALBER

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to interim care arrangements for a young child, X, born in 2014.  X is presently five and will, shortly, turn six.

2. The parties to the proceedings are X’s parents – his mother, the applicant; his father, the respondent. 

3. X’s interests are represented in these proceedings by an Independent Children’s Lawyer. 

4. Sadly, this is not the first tranche of litigation relating to young X.  X’s arrangements have been the subject of litigation before this Court for quite some little time.  That is highly regrettable, noting that for at least half of this child’s life, his parents have been in active and somewhat bitter conflict with each other with respect to his arrangements.  During that time there have been myriad applications, interim and final.  Sadly, none of the earlier determinations of proceedings have brought any lasting peace for young X.

5. This application arises in the context of allegations suggested to have arisen on or about 15 or 16 May 2019.  They relate to allegations that X has been assaulted by his mother, including but not limited to a suggestion that the mother has punched the child to the left side of his face, causing bruising to his eye and eye area.  It is not the first such allegation made with respect to X.  It may not be the last.

Conduct of Proceedings

1. These proceedings were commenced by an Application Initiating Proceedings filed on 27 May 2020, that is, Wednesday last.  Today is the second Court event.  The proceedings came before the Court for the first occasion last Friday, one week ago, 29 May 2020.  At that time, the matter was addressed on the basis of the Affidavit material filed by the parties.

2. In the intervening period of one week extraordinary work has been undertaken to ensure that the matter can be dealt with today with more abundant evidence, although perhaps no less conflicted. 

3. The Court has used its powers as an agency authorised under the Children and Young Persons (Care and Protection) Act 1998, NSW, to request information from a variety of sources.  That has included:

   a)Suburb C Medical Centre, where the child was presented on 16 May and myriad occasions previously;

   b)D School, where the child has attended school since school commenced for him;

   c)New South Wales Police with respect to not only written records but ERISP interviews of various persons including an interview with X on 19 May; and,

   d)The Department of Communities and Justice.

4. In very short time, 24 hours with respect to all but one set of materials, those requests have been answered by those agencies.  They have the Court’s sincere thanks for their assistance. 

5. Equally miraculously, the Legal Aid Commission has, with the Court’s great thanks, arranged for the appointment, or re-appointment, of the Independent Children’s Lawyer who has previously represented X’s interests.  The Independent Children’s Lawyer has been provided, by the Court, with all of the material filed by the parties together with the above materials.  The Independent Children’s Lawyer has been in a position to participate fully and completely, through counsel, in this hearing, all of that within a week.

6. Orders were made, on the last occasion, suspending the operation of the Orders which had previously operated regarding X’s arrangements.  I will turn to those shortly.  Arrangements were put in place so that X would spend time with each parent and with each the subject of somewhat informal supervision by family members.  The child has spent, not equal, but substantial time with each parent.

7. An Order was also made for X to be able to speak with each of his parents by video-based means on each day that he was not, and had not been, in that parent’s care.  It would seem there have been some small problems with that, although it would seem confined to the father being unable to speak to X whilst he was with the mother.  Not a great deal turns upon it, but it must be observed that it is an issue of some frustration.

8. Regrettably, the matter is dealt with in these times of pandemic by telephone (on both the last occasion and the present).  As discussed by the Court of Appeal of England and Wales in Re A (Children) (Remote Hearing: Care and Placement Orders) and Re B (Children) (Remote Hearing: Interim Care Order), (albeit in the context of discussing the efficacy of video appearances in matters of this nature), it is regrettable that it has been so.  However, there is no other means available to enable the address of the matter.  It is preferable, in light of the urgency of the issues, something to which I will now turn, that the matter is so addressed rather than simply adjourned until an in person hearing might occur.

Evidence Considered

1. In dealing with the proceedings today I have considered a volume of material.

2. In the case of the mother I have read and considered her Application, Affidavit and Notice of Risk filed 26 and 27 May 2020.  I have also had the benefit of a case outline document. 

3. There are a number of tenders made in the mother’s case:

   a)Exhibit A1, certain materials as set out in an index provided by the legal representatives for the mother and produced by New South Wales Police;

   b)Exhibit A2, material from Suburb C Medical Centre;

   c)Exhibit A3, material from D School;

   d)Exhibit A4, material from the Department of Communities and Justice;

   e)Exhibit A5, two reports from Ms E dated 9 December 2019 and 12 February 2020 respectively;

   f)Exhibit A6, a case history document provided by the Department of Communities and Justice.

4. In the case of the father, I have read and considered his Response, Affidavit and Notice of Risk, filed 28 May 2020, and an Affidavit by the paternal grandmother, Ms F, which is filed on 4 June 2020.  It annexes a number of photographs.  Without intending any criticism at all, they are far from clear, coming into evidence, as they do, as photocopies of photographs.

5. I have tried calling up Ms F’s electronically filed Affidavit to see if the photos annexed thereto are any clearer, but sadly, they are not.  And again, that is no criticism of anyone.  Things are done extremely hurriedly and as best as can be done at this point.

6. In the case of the Independent Children’s Lawyer, a tender bundle is produced which comprises, as the index thereto will show:

   a)Exhibit ICL 1, material from the Department of Communities and Justice;

   b)Exhibit ICL 2, New South Wales Police; and,

   c)Exhibit ICL 3, material from the Suburb C Medical practice. 

7. There is also a more contentious document before the Court by way of an exhibit, which shall be, for today’s purposes, exhibit X.  It comprises a 49-minute ERISP interview with X, conducted by Police officers on 19 May, 2020.  I refer to it as contentious, as the parties have not had any abundant opportunity to inspect that material. 

8. The parties were notified earlier this morning, when the material was received and released, that it was available but, again, as a consequence of pandemic restrictions, an appointment is necessary to inspect material.  I wholeheartedly accept that the parties, or either of them, and the Independent Children’s Lawyer, may not have had any opportunity or, at best, a limited opportunity available today, to inspect that material.  It would seem that the mother’s legal representative has had the opportunity to inspect some of the material, but far from all of it.  The father and his legal representatives have not.

9. I have described it as contentious as I have viewed that video.  I have disclosed that to the parties and done my best to relate to them from my notes the questions and answers that have flowed from that material.  It is far from ideal.  It is far from complete.  But having read the material tendered by the parties and the Independent Children’s Lawyer, I was concerned that the material, being available, must be before the Court, even if there is the potential for it to be described, at least in some small part, as evidence taken in camera, as the parties have not been able to view it, or in the case of the mother’s legal representatives, view it in its entirety.  Attempts have been made to forward the video to the parties but it is too large for our email system.  I will return to it separately.

10. As discussed by Parham J, albeit in a different context, in Capri v Ford Motor Vehicle, I am conscious, as his Honour described, that these are extraordinary times and that there are mechanisms, both for hearing proceedings and, perhaps, extending his Honour’s discussion to the circumstances of this case, that are less than ideal and in any other circumstance would not be contemplated or countenanced. 

11. However, this case involves the best interests of a young child whose interests have been before the Court myriad occasions in his short life.  By reference to that discussed by Forrest J in Gordon & Gordon, I am conscious that whilst viewing material that the parties have been notified is available but which, I accept, there are real impediments to their ready access to, is far from ideal, the child’s best interests require that the evidence be considered.

History of Proceedings

1. It is, regrettably, important to consider the history of proceedings between these parties in the context of the material that is tendered, the allegations raised in those proceedings and otherwise. 

2. The first tranche of proceedings between these parties had seen an application filed in a Local Court.  What flowed, at the commencement of those proceedings, was that the arrangements for this young child, his parents living in Town D and Western Sydney respectively, were far from ideal.  The child lived, at least for a period, in an equal time arrangement, with the child passing between the parents on a fortnightly basis.  That may well have met the needs of the parents at that point and their perceptions of fairness or otherwise.  It did very little for a child of that age. 

3. The application initially made in those proceedings was for the child to live with the father, for the father to have sole responsibility, for the mother to be restrained from bringing the child into contact with a person Mr G, (the mother’s then-partner), and for the mother to spend time as agreed, or failing agreement, to occur for a period of no more than three hours per week.  The mother’s response thereto was somewhat more fulsome, but suggested anything but an established parental alliance between the parties.

4. Without suggesting that the specific allegations that each of the parties had raised in the earlier proceedings is read and considered in these proceedings – they are not – the parties have each raised significant issues with respect to the other throughout.  It has been a typifying element of the proceedings that allegations of risk have been raised, perhaps more so by one party than the other.

5. Both myself and the Independent Children’s Lawyer have had a degree of consistency in involvement in the various tranches of proceedings. 

6. The substantial proceedings, which had first come before the Court, were resolved by the parties at what was to have been a contested trial.  The parties entered into Consent Orders on 14 January 2019.  The matter was listed for trial at that time.  The matter was prepared and ready to proceed, including with a Family Report.

7. The orders that were entered into, at that time, provided for equal shared parental responsibility of X.  That was somewhat aspirational, perhaps, but the arrangement which the parties felt they could make work.  The Orders provided that X would live with his mother and would spend time with his father, until May 2019, each alternate fortnight, continuing the two-week-about arrangement that the parties had been practicing for some little time.  From 1 May 2019 and until the end of the school year, although it is clear that X had not yet commenced school, the arrangement was changed, weaning the child, as it were, from that equal time arrangement, so that X would spend time with his father each alternate week from Wednesday until Sunday, and then, from the commencement of the school term in 2020 or thereabouts, the arrangement became an alternate weekend arrangement to accommodate X commencing school and the reality that he needed to live in one place.  He could not really transition himself between Town D and Suburb H and continue any consistency of school.

8. After those Orders were made in January 2019, the proceedings then returned fairly promptly with an application that was filed by the mother, and made returnable on a short service basis on 1 August 2019.  That application arose as the consequence of X being retained in the father’s care and certain allegations being raised with respect to the mother, or perhaps more aptly, Mr G, or Mr G as he is referred to by this young lad.

9. As a consequence of the matter returning with what, on their face, were serious allegations, the Independent Children’s Lawyer was reappointed, and the matter adjourned for a brief period.  Ultimately, that matter was resolved by Orders made by consent on 20 January 2020.

10. The Orders made on that occasion noted that a Provisional Apprehended Domestic Violence Order was in force with respect to the mother, although that application would appear to have since been discontinued.  The settlement of the matter on that occasion, if it might be so described, saw the discontinuance by each party of their respective Application and Response.  It was noted that the child was attending upon a psychologist in Town D and that the father was now authorised to engage with that psychologist as well.  Those Orders were made 21 January 2020.  The document that the parties had signed was dated 17 January.

11. This tranche of proceedings commenced in similar circumstances – allegations are raised of a serious nature with respect to the child.  As was observed on the first return date of the proceedings, the allegations that are raised are serious with respect to each parent, or each parent’s household. 

12. It is the mother’s case, if it might be so described, that the allegations that are raised are manufactured, an exaggeration of statements made by the child, or some other approach, such as misinterpretation, towards statements that are suggested to have been uttered by the child to others, including a general medical practitioner and Police.

13. It is the father’s case that the child has uttered statements, although as it transpires, it would seem, uttered them to his grandmother and great-grandmother more so than his father, but then repeated those statements to a general medical practitioner and Police.

14. On the mother’s case theory, the child is at risk from the father or members of his family, by causing the child to continue to repeat such allegations.  From the father’s case, the child is at risk as a consequence of actions that are accurately described by the child.

15. Between the filing of the mother’s application 27 May and its first return date, 29 May, Orders were made in chambers, again utilising the State provisions, requesting a person history document from the Department of Communities and Justice and requesting material from New South Wales Police.  Again, each of those services cooperated in the provision of material, although less than is now provided.  That is no criticism of those agencies.  They have produced to the Court that which was available at the date of request.  The more abundant response is as a consequence of ongoing investigations and interviews, and thus, greater material produced.

16. It is necessary to consider the tendered material.  It is somewhat illuminating for a variety of reasons that will become apparent. 

17. The medical records that are produced with respect to the child suggest that he has been presented to the same medical centre on most, if not all, of the occasions that he has attended to spend time with his father over the last 12 months or so, possibly since Orders were made in January 2019, or even predating those Orders.  Not all of the record is tendered.  The portions that are tendered certainly suggest that the child is presented to the doctors on each occasion so far in 2020 that the child has attended with his father.

1. On 26 May, the child is presented with concerns that he cannot sleep and is having bad dreams.  He was similarly presented on 22 May.  That has some relevance, as one of the concerns raised by the father is that the mother has obtained a prescription for melatonin for the child, and that upon attending upon a pharmacist to have a script filled, or seeking to have a script fulfilled, the father suggests that he was advised that the drug is not prescribed for children under 12, and accordingly the script was either not filled, or the father did not seek to fill it.  Clearly, the mother had obtained the script, issued by a registered medical practitioner, and whether there is such caution as the pharmacist advised, or not, it would indicate an underlying problem of sleep disturbance for this child.

2. The child is presented on 16 May, the date upon which it is suggested disclosures are made.  The child presented with his grandmother and great-grandmother.  It is suggested that on this occasion the child or one of the persons presenting with him indicated that the mother gives him surprises “to shut his mouth and to not tell anything she does to you guys”. 

3. He is suggested to be behaving badly, and striking his grandmother.  He is suggested to have said, or it is suggested that somebody has said, that he does not wish to return home and that he does not want his mother to go to jail for the things that he has said.

4. At A15, the child suggests with respect to certain injuries to his person, (it being suggested that he had bruising to his left arm, left knee and left eye – the bruising referred to in that portion of the exhibit being the bruises to his arm and knee) that he does not know and does not wish to speak about how the bruising to his arm and leg occurred, and he is suggested to indicate in relation to the bruising to his eye, (or somebody has related to the doctor), that it arose from his mother punching him.

5. It is suggested that he is being bribed with surprises to not tell anything that mum does to him and that the child said, either to the doctor or to others who have related it, that his mother punches him and bites him.

6. There is discussion that the child views his father and paternal family as one team and his mother and Mr G as another. 

7. The grandmother is suggested as being worried about the child’s safety with the mother as she [the mother] has “mental health issues”, and most likely not managing well with the child’s tantrums and ADD.  There would appear to be no dispute the child has been diagnosed with ADD or ADHD as is referred to in A15, and as noted in an attendance on 14 April.

8. What is noticeable with respect to each of the attendances is that the child is examined for bruising.  When presented, for example, (A14), on 2 May, the child has bruising to his left knee, left upper arm and his right forehead.  The bruises are recorded by the doctor as non-suspicious and probably from normal play, and “the patient not stating any story behind them”.

9. On 14 April, the child is presented with a bruise observed to his forehead which he describes was occasioned by him hitting his head on a door.  The doctor records that the bruise looks consistent with the injury as described.

10. On each occasion that the child is presented, some form of bruise, scratch or other “injury” is the basis for his presentation. 

11. It is concerning that the child would be presented to the doctor on each occasion that he attends with his father.  It may be concerning on a number of levels, one of which is that the attendances are entirely necessary to treat injuries that the child continues to experience from his mother.  The alternate proposition, which is perhaps the more likely in regards to the notations made by the medical practitioner, is that the child is simply being presented unnecessarily, with bruises and other marks which are not suspicious and have no need for investigation or even recording.

12. There is a history of reports of the child where either the child states, or the person with whom he attends states on his behalf, that he has been punched by his mother.  For example, exhibit A18, 2 February 2020, the child is suggested to present with a bruise to his left leg and left upper eyelid, and it is recorded that “X stated his mother punched him.”  It would not seem that each such statement results in a notification to the Department, although many do.

13. Certainly there is a presentation on 1 February 2020 when, again, the child is suggested to have a small superficial purple bruise on his left eyebrow, approximately a half to one centimetre, a small superficial bruise to his left knee, and a small superficial bruise to his left lower leg.  The child is observed to be in no distress or pain, full movement of limbs, walking/running well, no pain, tenderness, swelling or deformity.

14. On that occasion it is recorded:

    I asked X what happened that caused his bruises above his eye.  He states, my mum punched me yesterday or the day before, causing the small bruise above his left eye.  He does not give a clear answer re the bruises on his left leg.  Grandmother is very concerned and wants this incident reported to Child Protection Services.  I also advised to take X to Suburb H Police Station to make a statement.  There is no evidence of any significant severe injury.  I called FACS Child Protection hotline and made a report.

15. Thus, it would seem, as regards the mother’s case theory, there is some forensic basis for it.  The child is routinely presented to doctors and there are routinely complaints made to Police and the Department.

16. Similarly, the father’s case theory is borne out by the reality that the child is presented, time and over again, with either the child stating or the grandmother stating, with whom the child would appear to predominantly attend and be presented by, (indeed certain other portions of the material suggest that since the child has been retained from the mother’s care on 16 May 2020, that the child lives with his grandmother and spends time with his father), that he is hurt by his mother or in the mother’s household.

17. That the child is presented on a fortnightly basis, however, is, of itself, a real concern and issue.  That becomes all the more apparent in light of the tenders of the Independent Children’s Lawyer, to which I will turn in due course.

18. The child’s interview on 19 May is problematic.  Whilst certainly the child, late in the interview, and when prompted regarding what he had stated to Police officers earlier, refers to his mother punching him and biting him, the context that he gives is extremely unclear, as would be apparent from viewing that interview.  There is nothing within that interview that could be taken as a clear disclosure by the child. 

19. There are a number of aspects of the interview that are concerning, such as the child stating that Mr G is his grandfather who lives in Country J and travels by speedboat to visit him, that his pet dinosaurs are real pets, not toys, and that they are used to scare people away.  Indeed, when the interview commences, he indicates that other than being called a “little fuck” by both Mr G and his mother, that no one has hurt him.  They have been scared away by “Godzillas”, small or large.

20. The statements that are made are somewhat inconsistent, if not substantially inconsistent, with what is alleged to have now occurred.  There are also some internal inconsistencies in the evidence, but I do not draw anything of any substance from them.  The material is drafted and sworn hastily, and in that context, particularly noting the restrictions the pandemic imposes, it is very easy for minor inconsistencies to arise.

21. What would appear to be suggested is that the child was collected from the mother by his paternal grandmother on 15 May.  Whether that evening at 10 pm, or on the next day, bruising is then observed to the child’s left eye.  The child is suggested to have made a statement at 10pm on 15 May, 2020, to his grandmother and great grandmother, that his mother punched him.  It is possible. 

22. On another version of the tendered material, that statement is not made and the bruising not observed until the morning of the 16th.  But in any event, the child is certainly presented to a doctor on the 16th and is then taken to, and interviewed, by Police, it would seem several times, culminating with the ERISP interview 19 May 2020. 

23. Perhaps the clearest documentation, although there are aspects of it which are less clear perhaps, is the material produced by the Department of Communities and Justice in the more recent past. 

24. What is clear is that a safety assessment was undertaken of the grandmother’s home on 26 May 2020.  No risk was found by the Department, (the child, then being in the care of the grandmother, as opposed to the father, but in any event, not a great deal turns upon it).

25. There is then a safety assessment with the child in the mother’s home on 30 May.  On that occasion, the child is spoken to by a Departmental officer away from, and separate to, the mother and grandmother.  A record of interview, whether by way of hand-written notes, or otherwise, is not available from that discussion with the child. 

26. A lengthy record is made of discussion with the mother.  The mother and grandmother both suggest that when they collected young X, as he is referred to in the record, for him to come into their care the proceeding evening, and that, “totally unprompted”, the child is suggested to have said, “I have stopped saying you and Mr G hurt me, because it is not true”. 

27. The safety assessment that is then completed with respect to the child’s placement with the mother is positive, (i.e. no risk is found).  The lengthy document, commencing at paragraph 20 of the ICL’s tender bundle makes that clear. 

28. The safety assessments are not, (with the greatest of respect, and without intending to be in any way pejorative, it is not the purpose of their being undertaken), inclusive of the risk that is central to the mother’s case, and perhaps supported by the position advanced by the Independent Children's Lawyer, the potential for the child to be the subject of frequent, indeed, continuous allegations of physical abuse, which are ultimately found not borne out. 

Parties’ proposals 

1. The mother seeks that X return to her care, that the existing Orders be suspended, and that the father spend supervised time with X.  That is supported by the Independent Children's Lawyer. 

2. The father proposes that the parties would return to the Orders that have previously been in place, that is, for the practice of alternate weekend time with the father.  An alternate proposal is put on the basis of that, which falls from the less than completely, or perfectly described, ERISP interview with the boy. 

3. Certainly, during portions of that interview, (as would be apparent from the transcript, I having done my best to relate to the parties what the interview contained), do involve the child saying that he has been bitten by his mother, possibly punched by her, possibly pushed and tripping over a rock.  Although, the injury to which that relates, the small bruise to his left forearm, approximately the size of a five cent piece, is by far and away the least concerning aspect of anything in this case. 

4. On the basis, however, of those disclosures, and the possibility that there is an ongoing investigation, (the Departmental safety assessment, 30 May, refers to ongoing criminal investigation), the alternate position is advanced that the mother might also need to continue with some form of supervision. 

5. Thus, the Court is presented, (well after 5 pm, at the conclusion of a long day of duty matters in which, since 9.30 am, neither I, nor my staff have had a break), with the need to attempt to determine what might be the best, indeed, safest arrangement for this child.  That is not a task that many would envy.  That is, however, a task that must be undertaken at this time, because otherwise, the arrangements will continue catastrophically and chaotically as they are for this young lad at this time.

6. I propose, before dealing with any of the legislative provisions, to turn to and consider the issues of unacceptable risk that are raised on the evidence.  In doing so, I propose to adopt and incorporate paragraphs 46 to 48 of Justice Tree’s decision in Johns and Jasapas, adopting and referring, as his Honour does, to Murphy J’s earlier decision in Harridge v Harridge [2010] FamCA 445. I will pose each of the questions offered.

   The notion of unacceptable risk

   46.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

   47.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child.  At [25] the Court said as follows:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. 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.

   48.In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[1]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   49.I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

   [1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

What harmful outcome is potentially present?

1. On the father’s case theory, it is that the child continuously presents with bruising and injuries, and identifies that the mother has caused them.  There is the risk that this child will continue to be exposed to such behaviours, that the child will, as it were, be abandoned to be assaulted on a regular basis, indeed, a weekly basis it would seem, in the mother’s care, by the mother, Mr G, or possibly others. 

2. On the mother’s case theory, the harm is suggested to be, and with some support from the Independent Children's Lawyer, that there is the potential that the child will simply continue to be the subject of an unhealthy level of hypervigilance, continued interruption and withholding from the mother.

3. Certainly, that was canvassed with the mother by Departmental officers.  The mother accepts that it is not, and could not have been, helpful to this child, a young lad, who for more than half of his life, has had horribly disrupted arrangements, a two-week fortnight about arrangement practiced for approximately two years of his short life.  Then the movement to the present position, where time has slowly reduced as regards the time he spends with his father, paternal grandmother and great grandmother, that attenuated with the difficulties that I have attempted, albeit ineloquently, to describe above, that is, presentation to a doctor each occasion that he attends so that any mark, injury or bruise upon the child can be recorded.  That could not be in the child’s best interests either though this harmful outcome for the child, perhaps, is already playing out. 

4. I do not suggest that there is any evidence that directly connects the diagnosis of ADHD, or possibly ADD, to those past lived experiences and ongoing lived experiences for the child, but they both are equally plausible as contributors to why this child might have some disturbance of behaviour.  Disturbance that seems to play out, certainly in the paternal grandmother’s home, with complaints on a number of occasions to the doctor to whom the child is presented each fortnight, that he is acting out aggressively towards them. 

5. He is certainly acting out aggressively at school.  One of the entries tendered is the child suggested to have assaulted another child, and on another occasion, suggested to have bullied a young girl, (although the child denies it is so).

6. Those potentially harmful outcomes are problematic enough, let alone the disruption to this child’s already disrupted attachment and relationship with each parent, particularly the mother. 

7. The mother is left in a position where any mark upon the child will see the child presented to a doctor and, on at least three, if not now the fourth occasion, the child is withheld on the basis of allegations that the mother asserts are either manufactured or exaggerated. 

What is the probability of that outcome coming about?

1. Both risks are equally probable.  Indeed, as regards to the child’s continued retention and presentation to doctors, that is already demonstrated, on the material tendered, as a reality for this child. 

2. It is difficult to place one’s large adult feet into the shoes of this small boy, who moves between two households who have no trust for each other, two parents with no parental alliance, two parents who have, for whatever reason, horribly disruptive arrangements applied for this child, and arrangements which, on any cursory consideration of social science, have been absolutely contra-indicated as meeting the child’s need for bonding and attachment in the mid-point of his short life, not yet six, and wonder what the world might look like for him.

3. It is, perhaps, no surprise that he might assert that his pet dinosaurs are real animals, with some force asserting that it is so.  Concerningly, a number of the times that the child is presented to the doctor, it is suggested that he is hit with toy dinosaurs.  Curiously, the child does not assert that they are toys, and one wonders why it might be so that the allegation is thus made.  Although, I do not suggest any conclusion can be drawn. 

4. The probability of harmful outcomes for this child is guaranteed.  They are already being realised. 

What risks are probable in the short, medium and long-term?

1. The risks for this child are significant emotional disturbance and significant disruption in relationships.  Potentially, there is a risk, if the mother’s case theory is ultimately demonstrated as correct, or having any foundation at all, the child, having some difficulty in differentiating between truth and reality. 

2. As one might expect in any ERISP interview with a child, some little time is spent discussing the difference between truth and lies.  Perhaps the questions might have been better framed, without intending any criticism of the interviewer, as reality and fiction (although, those concepts are probably more difficult for a small child not yet six to understand).  The child is clear in asserting that he understands what truth is, and yet asserts that his toy dinosaurs are real animals, insisting that it is so.

3. I do not suggest that this one example can be used as a basis to dismiss any other complaint or suggestion the child makes, (although it is difficult to reconcile the suggestion that Mr G, the child’s suggested grandfather, travelling via speedboat from another continent, comes to punch him 20 times, whilst his mother, in another room, laughs).  It may well be that the child simply is not particularly adept at describing a serious event.  It may be that trauma has caused that exaggeration.  Who knows?

4. What is clear is that this child understands full well that he will be presented to a doctor for inspection and examination every time he goes into the father’s care.  That might have ceased by now, but sadly has not.  It has continued, indeed, become more rigorous in presentation, more continuous since what one might have thought of as Final Orders having been made in January 2019.  There is a battleground that this child knows he exists upon.  The risk to him in the short, medium and long-term of those circumstances, caught in such a milieu of distrust and conflict between his parents, must have short, medium and long-term implications for his development and emotional health, which are anything but positive.

What factors could increase or decrease risks that are probable?

1. This is, perhaps, the fulcrum upon which this determination balances.  Certainly, it would seem, from the perspective of the mother and the Independent Children's Lawyer, that their positions can be summarised, again, perhaps ineloquently, as “enough is enough”.  The child needs a break from all of that, which can best be achieved on the basis that the Department has assessed the mother as safe after interviewing the child, the mother and grandmother, as a suspension of the Orders, so that time either does not occur with the father and his family or that it occurs on a supervised basis only. 

2. That presents its own problems.  Because, of course, these are interim proceedings with highly conflicted, highly unsatisfactory evidence.  That is particularly so as regards to the difficulties with the ERISP interview, which I accept, the parties, other than the mother, have not yet viewed, and which it has not been possible to facilitate a viewing of, (but which I have been satisfied, in the curious circumstances of this case, dealt with well after Court sitting hours, required viewing in an attempt to ascertain whether something could be seen which would assist in establishing one position over the other).  The ERISP interview does not assist in establishing one position over the other.  But nor does it completely ameliorate against concerns that the child may well have experienced something in the mother’s care.

3. I am not satisfied that a factor that would decrease risk for this child is supervision of the mother whilst the child is in her care.  That is particularly founded in the observations of the Departmental officers, set out within their safety assessment of the mother’s home.  The child is observed to be taking his medication without incident.  The mother’s home is observed as clean, tidy and well organised, the child, with his collection of toy dinosaurs, content and happy in the mother’s home.

4. The child disavows any concern or complaint, it would seem, when interviewed in the mother’s home.  But that does not discount the fact that he has made, or is suggested to have made, statements to others.  The child is, however, observed to be somewhat anxious.  One might well expect that he would be, in light of his regular presentation to doctors, his regular interview by Police and Departmental officers, and his full awareness of all of the difficulties described above. 

5. Yet he is observed to be warm and close in his interaction with this mother.  I am loathed to, and will not draw, conclusions from that presentation by and of itself.  It is possible that the two might co-exist, that is, complaints of abuse or ill-treatment by the mother, or others, whilst he is in the mother’s care, and the child, having a close relationship with her.  The child was observed to be comfortable and close in the mother’s care.  It is less probable than a contrary proposition.  But I am in no position, and not assisted by expert evidence, to draw such a conclusion. 

   The child is suggested, from that material, to also raise complaint about his father, suggesting that when the father and his grandparents returned him, they saw the mother’s car with new pink license plates, and the child reports “Dad said, ‘Fucking pink’” in reference to those number plates.  A curious thing to say.  But if one is to accept all statements that come from the child as proven fact, one must accept that, also. 

6. There are real conundrums for this child.  The decision this Court makes may well return him, as the father asserts, including with the full and active support of the child’s paternal grandmother and great grandmother, to risk.  However, there is equal risk, at least, in the child being taken to doctors, and the subject of such hypervigilance warranting those presentations.

7. The factors that could increase or decrease risk are difficult to pin down.  Certainly, the most extreme avenue is that proposed by the mother, and with some support from the Independent Children’s Lawyer.  The only way to stop the presentations to doctors and the repeated allegations, withholdings and the interviews with Police and Departmental officers that follow, is to stop the opportunity for that to be so, (i.e., terminate the father’s practice of unsupervised time).  On the father’s case, that will simply expose this child to ongoing risk without vigilance. 

8. What might assist in that regard is the reality that the earlier allegations, that have been relatively continuous since January 2019, indeed predating, have not been found necessarily baseless, manufactured or without any validity at all, but certainly found far from proven.  As a consequence, there have been disruptions already of the mother, subject to Apprehended Domestic Violence Orders, Mr G, subject to Apprehended Domestic Violence Orders, all of which have eventually come to nought and resulted in nothing more than the child’s interview, the child’s disruption and disadvantage. 

9. Faced with all of those difficulties, the issues which might decrease those risks is a prohibition on the child being presented to a doctor by the father or members of his family.  That is far from perfect.  It is also difficult to enforce or police.  Only the father is a party to the proceedings.  The other more extreme factor is, as identified by the mother, to terminate unsupervised time. 

What measures are available whose deployment could mitigate the risks that are probable?

1. They are probably, as discussed above, the hard, stark choice between significant interference with a relationship, or other prohibitions which are less than perfect.  Indeed, they are less than perfect in the sense that there may be good reason to present the child to a doctor, and that may, of itself, cause difficulty or disadvantage for this child. 

2. Ultimately, with respect to the risks that are alleged, particularly having regard to the history of allegations, how they have been investigated, the conclusions that have been arrived at and the outcomes that have been achieved in the proceedings that have resulted before this Court, is to accede to the position supported by the Independent Children's Lawyer.  It is far from perfect, but it is the best that can be done at this late hour after hastily, although I am satisfied thoroughly, considering hundreds of pages of material and a lengthy ERISP interview of the child. 

3. The risks to this child of a continuation of allegations, this being, effectively, the third tranche of proceedings within 18 months dealing with the same, or similar, allegations, is too high.

4. I am conscious of that, which is submitted by the Independent Children's Lawyer, by reference to Keats & Keats [2016] FamCAFC 156, and also addressed in Saleh and SS & AH.  It is also addressed in Goode and Marvel, particularly paragraph 68 of Goode.  It is difficult to make any finding of fact in these circumstances.  I do not propose to attempt to, save to the extent, as each of the above authorities refer, by reliance upon uncontroversial or agreed facts.  There is little alternative but to weigh the probabilities of competing claims and the likely impact upon young X in the event that a controversial assertion is acted upon or rejected.

5. This child has some degree of vigilance around him.  He sees a psychologist, he attends school, he has had some time away from school during the pandemic restrictions, but school has now returned, and thus, so will he.  He seems to be in fairly regular contact with staff within the school.  Indeed, he seems to get into a little bit of trouble at the school.  That is not to criticise X.  He has had a lot to process and endure from his parents, as discussed above.  It would be extraordinary, his resilience beyond the bounds and means of most children, if he has not been impacted in his behaviour as a consequence of what he has endured in these parental conflicts. 

6. All of that vigilance gives some basis for confidence that if anything untoward were occurring in the mother’s household, although to date no investigation has assessed that it is so, or that there is risk of it being so, it may well come to light through those means.  I am satisfied, although it is not the submission specifically put by either the Independent Children's Lawyer or the mother, but I accept, appropriately paraphrased, that for this child, “enough is enough”.  He needs a break from what has been happening continuously for at least the last 18 months, if not three years, or half of his life. 

7. The father’s allegations are untested, although thoroughly investigated by Police and the Department.  The Department, in particular, the prosecutorial and investigative body, seized with child protection, has not expressed concern as to X being in the mother’s care or in the mother’s home.  That is so, notwithstanding that they are aware of the allegations that are raised. 

8. True it is that the same assessment is made of the paternal grandmother’s home.  But as I have already alluded to, the one factor that is not addressed in that risk assessment, nor need it be, it is not within the purview of the Departmental officers to do so, is a consideration of what the Independent Children’s Lawyer describes at paragraph 15(b) of their submission, the recidivist approach of the father, not only withholding the child, but expanding that submission to the child’s routine presentation to doctors, and the routine raising of allegations. 

9. The only means by which I am satisfied that this child can have the respite he needs from those allegations is through acceding to the position advanced by the Independent Children's Lawyer, supportive of the mother’s position.  That is the only acceptable factor, or set of factors, that can, at this point, provide sufficient protection for this child.

Legislative Provisions

1. I must also have regard to the legislative provisions in Part VII. 

2. I am reminded by section 60CA, that in all that is done, the child’s best interests are the paramount consideration.

3. I must have regard to section 60B.  The objects and principles do not form part of the substantive law, but do assist in understanding and interpreting those provisions, and in guiding the outcome that the Court should endeavour to achieve. 

4. Courts should make Orders that ensure that the best interests of children are met by ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests.  That has included, in recent past, for this little boy, an equal time arrangement which would not appear to have served him well.

5. It has more recently been a substantial and significant time arrangement, or as close to it as can be accommodated when the parties live such a distance apart.  That also has not served him well. 

6. The involvement of both parents leads to the very difficulties described above.  Fortnightly presentations to doctors for examination.  As the child describes in his ERISP interview, presented so he can “remember what has happened”.  I do not suggest that this can be adopted as a statement of absolute fact.  But it is concerning that the child would even perceive that it is so. 

7. The child is presented so frequently with trifling injuries, described thus by the doctor who has examined him, that it is concerning.  It represents a pathologising of the child’s relationship with his mother, which the child, if not already aware of, will increasingly become aware of.  That limits the involvement which can occur, consistent with the child’s best interests.  It may well be entirely a function of the father, paternal grandmother and great grandmother, zealously desiring that this child be safe and protected, that it is founded fundamentally in the belief system that the child is not safe, and thus, evidence is looked for, even when it is not available.  Any statement made by the child, thus, becomes problematic, the child being so fully aware of those investigations and those beliefs. 

8. The mother is not yet at a point where she is absolved of any responsibility for any action that is suggested to have occurred in the past, but it is the lesser of the two evils, as it were. 

9. The Court must make Orders that protect children from physical and psychological harm.  One of the concerns is that the injuries that are observed and recorded by medical practitioners are somewhat out of proportion with that which is suggested, and I confine myself, at this point, to what is suggested to the medical practitioner. 

10. It is difficult to accept, (although, even the fantastic might be plausible), that the child has been punched to the face by his adult mother, and a bruise which has so readily dissipated is what is observed.  It might suggest that whatever has occurred is less than the suggested explanation.  It might suggest that even if that is so, that it is a far more trifling injury. 

11. I also cannot ignore the reality that the mother denies each and every allegation, and that allegations have been somewhat continuously, for 18 months, the subject of investigation by appropriate child protection authorities, the Police and the Department. 

12. That must give some assurance that the protection of the child from those allegations is more readily addressed, and has been more readily addressed, than the child’s protection from the behaviours seeking to initiate investigation.  For this child to be so routinely presented to Police and Departmental officers, let alone medical practitioners, is of itself a risk of abuse of the child. 

13. I must make Orders that ensure that the child will receive adequate and proper parenting.  Parents do not provide adequate parenting when they are so fixated upon proving their allegations against the other parent, applicable to both parents.  It, if nothing else, distracts them.  They are not available, and thus, have some degree of neglect in their parenting of the child.  If it extends beyond that, and it becomes an obsessive pursuit of fault, it is beyond neglectful, it becomes abusive. 

14. I do not suggest any finding is made that any of those theories or propositions are established on the evidence.  Merely, it is what is alleged, and I must, as SS & AH, Saleh and Keates all describe, balance each of those risks. 

15. The greater risk is that this level of conflict, investigation and presentation will continue when there has been such investigation of past complaints, and the present investigation of complaint, which find an absence of risk or concern from the perspective of those bodies. 

16. I must also ensure that these parents fulfil their duties and meet their responsibilities.  That is best viewed through the principles, which create, as it were, rights for this young child. 

17. X has a right, save when it is established as contrary to his best interests, to know and be cared for by both of his parents, and to spend time and communicate with both of his parents.  It is the duty and responsibility of the parents to ensure that those rights are achieved and fulfilled. 

18. The mother has, perhaps, demonstrated a greater ability to do so.  She has not withheld the child from the father with the frequency that the father has withheld the child from the mother, (although perhaps, more correctly, the paternal family as a unit). That lends some very slight support to the mother’s position. 

19. All of those factors support the proposition put and supported by the Independent Children's Lawyer. 

20. I must then turn to section 61DA, the presumption of equal shared parental responsibility. There is, of course, an order for equal shared parental responsibility. Application of the presumption, however, is not an Order. It is a presumption. The order that is made may be consistent, or inconsistent, with the presumption.

21. The Order for equal shared parental responsibility is, at this point, something of a fiction.  The parents do not communicate, they do not make joint decisions, they have not demonstrated that they are capable of doing so, nor have they demonstrated that they have an ability to discuss and resolve difficulties as and when they arise.  I am conscious of that which fell from Murphy J in Lansa & Clovelly with respect to parental responsibility, that it is a significant step for the Court to remove such authority from a parent.

22. I propose, these being interim proceedings, to suspend all parenting orders, and to then treat the presumption as non-applicable or rebutted by reference to subsection (3). These are interim proceedings and I am not satisfied, in light of the above discussion of the evidence, incomplete as it may be, that it is appropriate, in all of the circumstances, for the presumption to apply. Thus, I am not obliged to consider equal and substantial and significant time, but I will consider all arrangements at large by reference to section 60CC, to which I now turn.

23. I must commence with the primary considerations, being the benefit to this child of a meaningful relationship with both parents and the need to protect X from physical or psychological harm, the later prioritised over the former by subsection (2A). 

24. The need to protect X, as discussed at some length above, is significant.  There are myriad risks, or theories as to risk, which are in play in this case. 

25. Thankfully, through utilisation of the State provisions, a vast quantity of information has been obtained in a very short space of time that enables a decision to at least be informed, albeit by untested evidence.  As I have already indicated, perhaps the most significant part of that evidence is the assessment by Departmental officers, only days ago, that the mother does not, to their mind, pose risk.  That is not to delegate my discretion to Departmental officers, merely to inform my exercise of discretion by their far more abundant investigation than this Court has the ability to undertake. 

1. The need to protect X from the matters I have referred to falls in favour of the proposition supported by the Independent Children's Lawyer.  The primary considerations would, I am satisfied, particularly with the prioritisation and protection, as discussed above, support the propositions advanced by the Independent Children's Lawyer.

2. In dealing with the additional considerations, they are of limited assistance.

Views.

1. There is no evidence.  Certainly, X has suggested, at various times and to various persons, particular the father and members of his family, and to the Police with whom he first spoke and a medical practitioner suggesting that he does not wish to return.  However, that “view” must be seen in light of his chronological age, his maturity and, most importantly, the context in which those suggested views are expressed.  This is a child for whom conflict and parental distrust and discord is circumjacent.  I do not place weight upon them. 

The nature of the relationship of the child with each parent and other persons.

1. Sadly for X, he has what would be, but for the potentially pathologised elements of his relationship with one or both of his parents and other relatives, an excellent and close relationship with all.  He is a boy who is much loved and has much love for all.  Sadly, it would seem the issue in this family is that these relationships simply cannot subsist with all at the same time. 

2. The factor does not otherwise assist a great deal, save that it produces significant sadness that any interference with his relationship with either parent is an impost upon this lad, brought about, not through his desires or actions, but sadly, the circumstances created by his parents and others. 

The extent of which each parent has taken, or failed to take the opportunity, to participate in decision making, spend time, or communicate with the child.

1. That is not an issue.  What is relevant in this case is that which was previously contained prior to the June 2012 amendments in subsection (4), the extent to which each has interfered in the other’s capacity to do so.  That is discussed above and provides some little support, although, far from dispositive, to the mother’s case, and that is supported by the Independent Children's Lawyer.

2. It is also connected with the pre-June 2012 drafting of subsection (c), what was often erroneously referred to as the friendly parent provision, the extent to which each parent has appropriately supported and facilitated the other’s relationship.  That is not a criticism of the mother.  It is a criticism, suggested clearly on the evidence, of the father and members of his family.  However, that attitude is suggested to be justified and valid for the child’s protection. 

3. The factor provides some support to the mother’s case.

The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child.

1. There is no evidence.

The likely effect of change, including separation from either parent, or other child or person with whom the child has been living.

1. This is yet another disruption and change to the child’s life.  I accept it is advanced on the father’s case as protective of the child.  However, the alternate proposition, with which this hearing has commenced, that things would simply return to how they were if the Court is satisfied that there is no risk in the mother’s household, or perhaps more correctly, that the Department has assessed it to be so, is no longer a valid option.  That has been tried now on three occasions.  It simply does not dissipate the conflict, distrust, discord and disadvantage to this child. 

2. The effect of change yet again in the child’s arrangements, which would see him changing schools as well as households, and significant restrictions upon the predominant relationship he has practiced for the last 18 months at least, is disadvantageous.  Sadly, it would lend support to the proposition advanced by the mother and Independent Children's Lawyer.

Practical Difficulty and expensive

1. I incorporate herein section 65DAA(5).

   (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

2. The parents live a significant distance apart, but it is not the geographical distance between them that is important.  It is the philosophical distance, their inability to implement arrangements with stability and regularity, and without all of the disadvantages attending them, the child’s presentation to doctors to be checked on every occasion, the child’s interviews by Police and Departmental officers, the ongoing catalogue of complaint and allegation, their inability to communicate and resolve difficulties, and the impact all of that has on young X, that supports the Orders that are proposed by the Independent Children’s Lawyer. 

The capacity of the children’s parents

1. This is, I am satisfied, accurately addressed in the above discussion. 

Maturity, sex, lifestyle and background of the child

1. X is not yet six and already his life is dominated by litigation, interviews and distrust.  That must again, to put it in the vernacular, mean that he needs a break.  Enough is enough.  The only way that this can be best achieved, and it is an imperfect best, is support of the Independent Children's Lawyer’s proposal. 

Aboriginality of the child

1. Young X is an Aboriginal child, identified through his mother’s Aboriginality.  As discussed by the Full Court[2] this factor is rarely, if ever, a dispositive consideration.  I am satisfied in this case the evidence could not make it relevant. 

   [2] See for example Haigh & Holt (Unreported, Full Court of the Family Court of Australia, 23 December 2003), Hort & Verran [2009] FamCAFC 214, Sheldon & Weir [2011] FamCAFC 5 and Wilcox & Wilcox [2012] FamCAFC 21

2. This is a case in which the child’s protection is the fulcrum of the decision.  That is not to dismiss the importance of culture to a child’s sense of self or the child’s development, merely that there are bigger fish to fry, as it were. 

Attitude to the child and the responsibilities of parenthood

1. The attitude of each of the parents is, again, adequately addressed above. 

Family violence

1. The allegations in this case relate to suggested violence visited upon the child by parents and others, particularly the mother’s former partner, Mr G.  Those allegations of family violence, to the extent that they have been investigated over and over again, have not been found to be an impediment to the child continuing to live in the mother’s care, and yet, the difficulties have continued on that basis, and I am satisfied the mother’s case is supported. 

Family violence orders 

1. There have been Orders in the past, several of them.  There are none at present that the Court is aware of that would be relevant or which would preclude Orders being made as proposed by the mother and the Independent Children's Lawyer. 

Whether it is preferable to avoid future proceedings

1. There is little that can be done, sadly.  The matter is back before the Court and will now be moved forward as expeditiously as possible and with all of the resources that might be needed to fully, and hopefully authoritatively, bring some peace and stability for this child for more than the few months at a time that have been managed since January 2019. 

2. The parties have previously been engaged with family counselling and similar services.  The time that has passed, and the level of entrenched conflict between them, is such that I am not satisfied any further interventions of such nature would help. 

3. Regrettably, and for those reasons, I am satisfied that the best that can be done is to accede to the proposal of the mother, and supported by the Independent Children's Lawyer.

4. For the above reasons Orders are made as follows.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 30 July 2020