Samaras and Rasul

[2017] FamCA 614

FAMILY COURT OF AUSTRALIA

SAMARAS & RASUL [2017] FamCA 614

FAMILY LAW – INTERLOCUTORY – With whom the child spends time – Family violence – Where the mother seeks the father spend no time with the child and the father seeks unsupervised time each alternate weekend – Where the parties tell conflicted versions of events in almost all areas – Where the mother alleges physical abuse of both her and the child – Where the father denies all allegations of family violence – Concluded the evidence is untested and does not, at this time, support findings in respect of physical injury as a result of abuse of the father in respect of the mother or the child – Where the father has spent time with the child supervised by the mother or members of the maternal family for the past 18 months – Concluded both parties’ interim applications are unrealistic – Ordered the father spend supervised time with the child in a contact centre

Family Law Act 1975 (Cth), s 60I

APPLICANT: Ms Samaras

RESPONDENT: Mr Rasul

INDEPENDENT CHILDREN’S LAWYER: N/A

FILE NUMBER: NCC 726 of 2017

DATE DELIVERED: 27 July 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 24 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: NLS Law

SOLICITOR FOR THE RESPONDENT: Winder Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

Orders

1. That Order 3 of Orders made on 24 April 2017 pending further order (“the April 2017 Orders”) is suspended.

FURTHER TO THE APRIL 2017 ORDERS I MAKE THE FOLLOWING ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child B born … 2013 and to facilitate such appointment the parties do forward all relevant documents to Legal Aid NSW within the next 7 days).

2. That each of the parties do all such things as may be necessary to facilitate the child’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

3. The Independent Children’s Lawyer shall:

   a)Explore the possibility of a Single Expert Report by a Child and Family Psychiatrist being funded wholly or partially by the Legal Aid Commission with particular reference to:

   i.The mental health of each of the parties;

   ii.Allegations by the mother of drug abuse and gambling by the father;

   iii.Capacity of the father to meet the needs of the child

   NOTING that in the event that such funding is unavailable a Family Report will be considered on the adjourned date to include a request for the Family Consultant to consider whether a psychiatric assessment of either or both parties is recommended.

   b)Implement a regime of drug testing for the father on request from the Independent Children’s Lawyer if the father is willing to comply without order.

   c)Consult with the Manager of Child Dispute Services in relation to Order  6.

Time with child

1. That the father spend supervised time with the child not less than once per calendar month for a period of not less than two hours at dates and times advised by an approved contact centre to the parties.

2. The time that the father spends with the child shall be supervised at a contact centre approved by the Manager, Child Dispute Services at Newcastle with the Independent Children’s Lawyer to approach the Manager for details of an approved contact centre.

3. After a contact centre has been approved and the name and details advised to the parties by the Independent Children’s Lawyer each party shall comply with all reasonable directions and requirements of the contact centre including but not limited to:

   a)Attending for Intake Assessment;

   b)Completing any other relevant documents;

   c)Attending with the child punctually on dates and times advised.

1. The father shall prior to the adjourned date provide to the solicitor for the mother and to the Independent Children’s Lawyer documentary evidence of the marriage of the parties said by the father to have taken place in February 2012.

2. Leave is granted to the Applicant mother to issue a subpoena for counselling records to her counsellor Ms C.

3. The matter is listed for directions and consideration of:

   a)A Single Expert Report or Family Report; and

   b)Drug testing regime for the father;

   on 16 November 2017 at 9.30 am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Samaras & Rasul has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC726/2017

Ms Samaras

Applicant

And

Mr Rasul

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. These are competing applications for interim orders in respect of one child B, a girl aged almost four years.

2. The applicant mother is 34, born in Australia to a family of European heritage.  The mother is a university graduate who has held responsible positions.  She lives in the D Town area with the child.

3. The respondent father is 35.  He was born in the Middle East and came to Australia in about 2000 as a student aged 18.  He enrolled in university to study.  He presently lives in Sydney and works fulltime as a driver.

4. The relationship between the parties started when the father was in his very early 20’s and the mother 19 or 20 years of age.  The evidence suggests that, whilst warmly supportive of the mother, the maternal family are respectful of the father in relation to the child but have not approved of the mother’s relationship with him.

5. Other than agreeing that they are the parents of the child the parties agree about very little else. 

6. The matter commenced in this Court on 14 March 2017 with the filing of an application by the mother.  It was treated as an urgent matter by the Court.  Leave to serve on short notice was granted.  There was an Initiating Application which included an application for interim orders that the mother have sole parental responsibility, that the child live with her, that the child have no contact with the father, that the father be restrained by injunction from approaching the mother, the child and various other residences including the home of the maternal grandparents and that the child be put on the airport watch list.

7. There was a Notice of Child Abuse and an Affidavit of the mother sworn on 9 March 2017. 

8. The final Apprehended Domestic Violence Order dated 21 March 2017 was also produced on the first day before the Court.

9. An exemption from filing a certificate under s 60I of the Family Law Act1975 (Cth) was granted by a registrar on the basis that there were reasonable grounds to believe that there had been family violence; two Apprehended Domestic Violence Orders were annexed to the mother’s affidavit, a provisional order made on 29 January 2017, and an interim order on 9 February 2017. The mother did not disclose her address.

10. The matter came before me in a Duty List on 24 April 2017.  On that day the father appeared and sought an adjournment claiming he had only just been served.  No documents had been filed by him.  The Affidavit of Service reveals that the father was personally served at 7 pm on 29 March 2017 but an adjournment was granted.

11. Due to the serious nature of the allegations raised by the mother about the violent conduct of the father towards herself and the child interim orders were made on that day as sought by the mother pending further order.  Directions were made for the filing of material by the father and the matter was adjourned to 30 May 2017 for further interim hearing. 

12. On 30 May 2017 the matter came back before me.  The matter was not ready.  The father had prepared documents which had been sent back to him by the Court for them to be witnessed correctly.  Ultimately the mother received the father’s documents the day before the hearing (an unsworn affidavit had been provided to the mother’s solicitor a few days prior but the solicitor was overseas). 

13. The father denied all allegations of family violence raised against him by the mother.  The Court noted on that day that if the matter proceeded there would be no objective evidence to assist in determining the facts. 

14. The mother had by then obtained a grant of Legal Aid.  She sought leave to file three further affidavits by her mother, her sister and her counsellor, and to supply to the Court an electronic version of the telephone conversation between the parties which informed the Notice of Abuse supporting her application.  That conversation had also been the basis for arrest of the father on 29 January 2017. 

15. The father indicated he may file an affidavit by a family friend, Mr E.

16. The matter was adjourned once again, fixed for 24 July 2017 at 2.15 pm.  Two hours were allocated.

17. On his own later evidence the father proceeded after the court event on 30 May 2017 to the home of the maternal grandmother, banged on the door, left, and later returned. 

18. The address of the home of the maternal grandparents is specifically noted in all three of the Apprehended Violence Orders (“AVOs”) as a place to which the father was restrained from going within varying distances.  During the court event on 29 July 2017 the father allowed his solicitor to submit that because the mother did not live with her parents the father had not understood that he could not go to the home of the grandparents.  When the solicitor for the mother responded that the excluded address noted in the AVOs was that of the maternal grandparents the father conceded that it was.

19. Either the father did not fully read any of the AVOs or he did and chose to disregard the restraint on approaching the home of the maternal grandparents.  Either way the evidence raises concerns about the father’s attitude to compliance with the AVO as well as his lack of candour in Court.  Even if there is some substance in the father’s case that the mother has not been entirely candid and/or has exaggerated some events it would not excuse, to any extent, defiance of the order of the State Court. 

20. On 24 July 2017 the interim hearing proceeded to a conclusion.  The mother had not filed evidence by her counsellor.  The explanation offered from the bar table was that the counsellor was on maternity leave.  The obvious course of issuing a subpoena for her records had not been taken.  Four months had passed since the first application had been filed with more than enough time to attend to this issue especially as corroboration was key to understanding what had actually happened.

21. The mother had filed affidavits by her sister and her mother and a further affidavit by herself.  The mother’s affidavit was filed 16 June 2017 together with that of the maternal grandmother, Ms F Samaras, on the same day, and the maternal aunt, Ms G. 

22. The maternal grandmother swore to having seen the father bite the child’s arm causing her to yell “mummy” and sometimes to cry.  She says she reproached the father by saying, “You will hurt her”, but apparently took no other step.

23. The maternal grandmother also refers to the father, in January 2017, stating to her, “I will grab the child and take her back to [the Middle East] and you will never see her”.[1]  The maternal grandmother said she had heard the father say that on three other occasions.  It will be a matter for final hearing as to whether this statement was made by the father and if it was whether it was a posturing threat or a warning of intention to take that action.  There is no suggestion in anyone’s material that the father has ever attempted to remove the child from Australia.  There is, now, a restraining order in place in that regard made on 24 April 2017.

    [1] Affidavit of Ms F Samaras filed 16/06/2017,  pars 45 and 46

24. The maternal aunt stated that she has witnessed the father repeatedly slap the mother across the face.[2]  She also was present for abusive insults by the father of the mother.  The maternal aunt said that her sister referred to having bruises from assaults on her by the father and that she dressed to conceal them.  However, the maternal aunt does not say that she ever actually saw bruises on her sister.  One explanation is that the maternal aunt is supportive of her sister but appropriately careful to be accurate in her evidence.  There are other explanations. 

    [2] Affidavit of Ms G filed 16/06/2017, par 27

25. On 4 July 2017 the father filed his affidavit but there was no affidavit by any other person. 

26. The Application and Response required close consideration by this court in circumstances where the two parties tell conflicted versions of events in almost all areas, some of which are as follows. 

Cohabitation

1. In her initial application and first affidavit the mother stated that the parties began living together in May 2009.  The father also said that cohabitation commenced in 2009 and that the parties had met in 2003.  The evidence is otherwise. 

2. In her second affidavit the mother asserted that the parties began living together in 2002. 

3. To the police, in 2009, the mother said cohabitation began in 2001 and that thereafter the parties had lived in various suburbs of Sydney.  That was in the context of a separation and later reconciliation of the parties in 2009.

4. The mother said that she attempted to leave the father on one occasion that is in 2009.  As a result for one month in that year an enforceable AVO was in existence preventing the father (who was apparently known as Mr H at the time) from approaching or contacting the mother.  The police make this comment, “However, he managed to convince [Ms Samaras] that he was a changed man and to return to the relationship which she did.”  Tendered into evidence was a record of police involvement on 17 August 2009.[3]  The mother had telephoned police on that day.  She said that she and the father had been in a relationship for seven years and had been separated since November 2008. 

   [3] Exhibit 3

5. The mother stated that she had grave fears for her safety and was too scared to reside at home.  The mother told police that the father had difficulty coming to terms with the breakup and had continuously harassed her by telephone, ringing 15 to 20 times per day, and sending 10 to 15 text messages.

6. The police make the following comment, “About half of the messages sighted by police were abusive and degrading.  The other half were pleading the victim to resume the relationship.” 

7. On 9 August 2009 the mother and her parents returned to the home of the maternal grandparents in D Town to find a bunch of flowers at the front door.  The father then attended the home.  He had driven up from Sydney to see the mother. 

8. The maternal grandmother directed him to leave the home which he did telling the mother that he would wait for her at the end of the street if she wanted to join him which she did not.

9. After that day the mother said the father telephoned more than 200 times and sent more than 150 SMS texts.  The mother said she found those messages intimidating and begged the police for an urgent AVO.  The police record that the father, whilst the mother was at the police station on that day, rang her on eight occasions and sent 10 SMS texts.  An interim ADVO was applied for and granted.  Thereafter the mother apparently returned to live with the father. 

10. There is no reference in the material tendered of police events in 2009 of the mother having said that she had been assaulted most days or of making any other complaint of misconduct about the father as set out in her grounds for the ADVO in 2017 and in her Notice of Abuse.  In those documents she referred to having been punched, sexually assaulted and controlled both socially and financially. 

Separation

1. In her initial application the mother stated that final separation was on 25 July 2013.  That is two months before the subject child was born.  In her 2017 report to police which provided the grounds for the ADVO and criminal charges the mother said she had separated from the father in 2012, only discovering weeks later that she was pregnant.[4]  It was in that 2017 report to police that the mother stated she had been assaulted most days by the accused throughout the relationship. 

   [4] Affidavit of the mother filed 9/03/2017, Annexure A at pg 5

2. In relation to separation the father asserts that the mother finished work in July 2013 in anticipation of giving birth in September of that year.  She moved from their home in Sydney to D Town, by agreement, to have the support of her mother and sister with the baby.  The father asserts that he agreed to look for work in D Town in order to move there.  The father says, further, the parties agreed that the child would be born in J Hospital as she was.  It is not in dispute that the father was present in the hospital when the child was born and that he stayed overnight. 

3. The father asserts that final separation took place five months after the birth of the child because the mother was “not well”.  He nominates anxiety, depression and panic attacks.[5] 

   [5] Affidavit of the father filed 4/07/2017, pars 35- 38

4. The father says he travelled from Sydney for weekends almost every weekend to see the mother and child in the home of the maternal grandparents for the first year or so after the birth of the child.

5. The father also refers to the mother having later moved to live with her sister.  In the affidavit of the mother’s sister she refers to having separated from her own husband in 2015 and that the two children of that marriage remained with her.  The father asserts that the two women, the two sisters, promised each other that they would not tell their respective partners where they were living. 

6. After the change of residence of the mother the father says that visits between himself and the child were thereafter in shopping centres.  He concedes frustration at having no time with his daughter alone but rather, “trailing along”, in a shopping centre.[6]  He says that on occasions the mother, her sister, the sister’s two children, and both maternal grandparents were present on these occasions which lasted usually about two hours.

   [6] Affidavit of the father filed 4/07/2017, par 71

Marriage

1. The father asserts that the mother converted to his faith and that the parties married in his local religious centre in Sydney in February 2012.[7]  The mother denies marriage and conversion.  There is no documentary evidence before me of the marriage taking place. 

   [7] Affidavit of the father filed 4/07/2017, par 6

Child Support

1. During submissions and in response to my question the father asserted through his solicitor that he paid child support which was up to date, that in addition he gave cash and groceries to the mother in the order of $300 per week.[8] 

   [8] Affidavit of the father filed 4/07/2017, par 90

2. The mother, through her solicitor, denied not only that child support was paid but that there was an assessment.  The mother claimed that after an interview with Centrelink where she disclosed family violence she was granted exemption from applying for child support.  She denied that any child support had been paid since the birth of the child.  The mother made no comment as to the assertion of the provision of cash and groceries.

3. There is no documentary evidence to support either position.

Drug Use and Gambling

1. The mother asserts in her affidavit that the father was a regular drug user, smoking drugs including cannabis and other drugs described but not named.[9]

   [9] Affidavit of the mother filed 16/06/2017, pars 97-100

1. The mother asserts that the father became aggressive, dangerous and sexually abusive when affected by drugs.  The father totally denies any drug use. 

2. The mother asserted also that the father had a severe gambling problem, had gambled away thousands of dollars, and had a bad credit rating as a result.[10] The father denies having gambled or having any problem with gambling. 

   [10] Affidavit of the mother filed 16/06/2017, pars 101-104

3. These will be matters for inquiry in final hearing.  There is no documentary evidence in relation to either position.

Letter by the mother to Local Court on behalf of the father in 2016

1. The father annexed a letter[11] provided to him by the mother and addressed to a local court to assist him in a plea in respect of an offence involving speeding.  The mother agrees she wrote the letter but says she did so out of fear that he would, “come to my mother’s house and make me write what he wanted.”[12]  The letter provided by the mother describes the mother having a panic attack, contacting the father, and urgently requiring him to come and take her to hospital and that she was fearful that she was alone with a child at that time and needed his assistance.

   [11] Affidavit of the father filed 4/07/2017, Annexure A

   [12] Affidavit of the mother filed 24/07/2017, par 10

2. She also referred to being financially dependent on the father who was the sole breadwinner of the family and was a hard worker in her view.  This, too, is a matter for explanation in final hearing. 

3. It is possible that the mother had an amicable relationship with the father at that time in September 2016, that she told the truth to help him, that there was financial dependence, and that she had had a panic attack.  It is also possible that she told a lie to assist the father and that she was not financially dependent and had not asked for his assistance.  It is also possible that she had a poor relationship with the father at that time and lied under pressure for fear of punishment by the father if she did not. 

4. It is common ground that the father spent the day in the home of the maternal grandparents with the mother, the aunt, and all the children on Christmas Day 2016 which is three months after these events.

Father’s Residence

1. The mother asserted that police have told her that they have recently tried to contact the father regarding a possible breach of the AVO arising from the father attending at the home of the maternal grandparents.  There is no documentary evidence of a breach being pursued although it may be. 

2. The mother asserts that police told her that the father no longer lived at the Suburb K address given in these proceedings and that other people now live in that property.[13]

   [13] Affidavit of the mother filed 24/07/2017, par 6

3. The father asserted through his solicitor that he continues to live at the Suburb K address and does so alone.  There was no documentary evidence to support either position.

Family Violence

1. The most significant area of dispute is over personal conduct and family violence. 

2. A notice of abuse was filed by the mother setting out a telephone conversation between the parties said to have taken place on 28 January 2017.  This conversation was taped by the mother, using her telephone, and captured on a USB stick which was tendered into evidence in the most recent court event.[14]  The father conceded that the conversation had taken place between them but asserted that it took place in January 2015.  Further, he denied that he had intended any to threat to the mother or the child but rather asserted that both parties were simply saying ridiculous things to each other.

   [14] Exhibit 4

3. It was this telephone call which gave rise to two criminal charges against the father;  one, use carriage service to threaten to kill; and two, stalk/intimidate/ intend fear, physical or mental harm.

4. The father was arrested on 29 January 2017 and at that time a provisional AVO was made.  The father provided evidence in these proceedings from the Local Court that those two charges were dismissed on 21 March 2017 and withdrawn.  He further asserted that the dismissal was on the basis of examination of his telephone records which revealed that no telephone call had been made.  Those records were annexed to his affidavit.  They were voluminous on many days but there were no telephone calls on 28 January 2017 in a continuous pattern of calls being provided.

5. It is conceded by the mother, as it had to be, that the charges were withdrawn.

6. The final AVO was made on the day of the dismissal of those criminal charges, that is 21 March 2017.  A submission was made on behalf of the mother that the language and threat in the conversation would be of the greatest concern to the Court even if the telephone call was not made on 28 January 2017 as asserted. 

7. This submission ignores the significance of the threat having been asserted to be a contemporaneous threat and that charges were made on that basis.  In short, it is to ignore the possibility that the mother simply lied to the police about the telephone call. 

8. The Notice of Abuse filed on behalf of the mother contained selected parts of the conversation.  The recording begins after the telephone call has commenced so I cannot come to a conclusion about who initiated the call.  The recording is audio and visual but only the mother’s hand is identified on screen. It is titled “recording for police MP4”. 

9. During the course of this conversation the father used grandiose threatening, horrible, language.  He said he would burn the child, put a bullet in her head, to which the mother responded, “talk seriously”.  The father went on to say, “I’ll f…ing stab her if she does something wrong.  I’ll stab her in the chest.”  These are hugely threatening words.  There was an underlying stream of insulting remarks levelled at the mother usually, “dirty f…ing bitch”.

10. The mother kept the father on the line, which was easy, since he asked her to when she threatened to hang up.  The father went on to say in this conversation that he was coming to visit his daughter on Saturday, that he would drive up, he would be there at 6.00 pm,

    Father:           All right.

    Mother:         Whatever

    The mother’s tone was both calm and accepting.  The language used by the father throughout was profane and repellent but there was nothing to suggest that it was unusual language or surprising to the mother.  I can conclude that the mother controlled the telephone call and, of course, she knew she was recording it.  Her voice was calm, patient, polite, but at times contemptuous of the father.

11. In my view she prompted the father to make certain statements probably well aware of his propensity to talk at length if the opportunity was there.  For instance, the mother said more than once, “[B] doesn’t deserve to be around a person like you”, and, “What kind of person are you?”  The mother said on at least four occasions, “You’re a sick person” and “What are you going to do?  Hit her too?”  The voice of the father during this call impressed as strange as if possibly affected by drugs or alcohol but that may be completely wrong.  That will be a matter for final hearing.  The focus of the father’s commentary on the mother was one of sexual jealousy; an apparent belief that the mother had found a new partner.

12. It was in this context that the father said about the child, “She’s only 18 months old.  Look what you’re putting her through.  She is not having the best life while you are fucking someone else.”  This was in response to the mother having said that the child was having the best life because she was with her mother “24/7”.

13. The father had been seeing the child regularly since her birth supervised by the mother.  He knew her age.  On the father’s evidence there had been a friendly family Christmas Day on 2016 and an enjoyable meeting of the parents and the child on 22 January 2017. 

14. If, as it seems likely, the telephone call was not made on 28 January 2017 but rather two years previously or at some other time then the telephone call was not the trigger for the mother’s report to police and, later, this application.  Testing of the evidence in a final hearing may clarify the events.

Notice of Abuse

1. In this document the mother also alleged that the father had, over the previous 12 months, on about six occasions hit the child on her face or on her arm or had bitten her.  Further, that he had pulled the child by her clothes and bitten her. On her evidence this would have been during 2016 whilst supervised by, at least, herself and usually the maternal grandmother and sometimes other family members. 

2. The mother also alleged that in relation to her; the father had hit, choked and thrown her, forced her to have sex and punched her repeatedly;  that he had socially isolated her and controlled money throughout the relationship.  By her own evidence the mother concedes that the child has not, since her birth, spent time with the father in the absence of her mother.

3. Time between the child and the father commenced on the day of her birth.  The visits since then have either been for one or two hours every four or five weeks since birth, which is the mother’s version, or every weekend for a period of 12 to 18 months, and then in accordance with the pattern described by the mother after the mother went to live with her sister in 2015.  The father has never had the child by himself or to stay the night.  This is confirmed in the mother’s first affidavit[15].  The grounds in the application for the AVOs make this statement:

   In 2016 the father grabbed the mother by the throat whilst in [L] Chemist in [M] Square, repeatedly grabbed the child in a rough manner by her clothing and slapped her across the face.  On one recent occasion he said to the three year old that it would only be a few years before she was bringing boys home and having sex with them in her mother’s house.

   [15] Affidavit of the mother filed 14/03/2017, par 22

4. In the father’s affidavit[16], paragraph 29, he says that such a comment was made after an incident where the parties were together and, with the maternal grandmother, going to buy a pair of shoes for the child; that she had refused to put her foot in the shoe and the mother had said “We’ll try again another time”.  The father forced the shoe onto the child’s foot and shouted at the mother that she had no control over the child and that if it went on that way boys would be coming to the house, as previously stated. 

   [16] Affidavit of the father filed 4/07/2017, par 29

5. Context is the significant aspect of this statement by the father which is either a horribly inappropriate sexual slur directed at her or an angry comment made to the mother about her methods of discipline.  That will be a matter for final hearing.

6. I note that there is no suggestion that on any occasion a report was made to police about misconduct by the father in relation to the child.  The Department of Community Services were not notified.  There has apparently been no trip to the doctor for treatment, advice, or observation of the child.  There are no photographs or any other statements which would support bites which have caused the child to be marked on her skin or to be otherwise injured.

7. I conclude in a tentative way that what the father did on any supervised occasion was not sufficiently serious to prompt the mother to take protective action of the kind set out above.  The mother has been an administrative officer.  She has completed a degree at university.  She has a loving extended family.  She is not resourceless. 

8. It is hard to accept that she would allow the father to injure the child in the presence of others and take no step at the relevant time. 

9. I conclude that there are inconsistencies in the evidence of the mother which are not insignificant, however that does not lead me to the conclusion that her allegations of physical and verbal abuse are unfounded.  All evidence is untested.  Accepting that the father made the statements he did about his little daughter, the statements being designed to “wind the mother up” does not inspire confidence in his capacity to meet the child’s needs or that he understands that part of his role as a parent is to be respectful of the other parent. 

10. I note that there is no evidence from the mother’s counsellor to whom she is said to have confided, at least post-separation, what happened during the relationship.  It is a matter of some significance. 

11. The evidence does not, at this time, support findings in respect of physical injury as a result of abuse of the father in respect of the mother or the child.  I have come to the conclusion that both interim applications are unrealistic.  To exclude the father from the life of the child entirely, on an interim basis, given the uncertainty of the evidence as set out above and the many issues to be explored by cross-examination is not in the child’s best interests.  She has been used to seeing him for short periods regularly and, perhaps, much more often when she was a younger child.

12. It is appropriate for the father to spend time with the child in a way that ensures her safety.  The application of the father to spend unsupervised time, weekends and holidays, with a history of only having spent time with her in the company of her mother and other family members and for, at least, the last 18 months to two years only for short periods of time, is simply unrealistic and would likely be frightening for the child to be separated from her mother.  There is also an issue for the father that he appears to have difficulty managing the child’s reaction to the very different parenting styles which may be a much gentler and more indulgent one by the mother and a more abrupt and physical redirection style by the father.

13. The orders which were made on 24 April 2017 address the risks identified by the mother.  The only variation that appears to me to be appropriate is that there should be some time between the child and her father.  The father concedes that the child should live with the mother and this is an acknowledgement by him of her capacity to meet the child’s needs.

Conclusion

1. Accordingly, the orders will suspend the order made on 24 April 2017 for no contact between the child and the father. 

2. An Independent Children’s Lawyer (“ICL”) will be appointed to represent the child’s interests. 

3. The ICL will then be required to explore the possibility of a Single Expert Report by a child and family psychiatrist and in circumstances where the mother has a grant of Legal Aid and the father has, he says, limited funds, some of which are being used to pay private legal fees, the mental health of each of the parties, the allegations by the mother of drug abuse and gambling by the father and the capacity of the father to meet the needs of the child, are issues at the forefront of consideration.  In the event that funding is unavailable a Family Report will be considered with a request to the Family Consultant to consider whether a psychiatric assessment of either or both parties is recommended. 

4. The ICL is also asked to implement a regime of drug testing for the father if he is willing to comply without Court order commencing immediately. 

5. In respect of time between the child and the father in the circumstances it should take place in a contact centre.  Neither party put forward the proposal that there be supervised time.  On that basis a further request for the ICL’s assistance is that there be discussion with the manager of Child Dispute Services at D Town in order to obtain details of an appropriate centre.  There are supporting orders for the parties to comply with the directions of the contact centre in order to be able to use it, and that time take place not less than once per calendar month for two hours. 

6. Leave is granted to the mother to issue a subpoena for her counselling records to her counsellor named in the orders.

7. The matter will be listed for directions and consideration of the report to be ordered and consideration of an order for drug testing by the father on the next date, 16 November 2017, at 9.30 am. 

8. Orders are made accordingly.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 July 2017.

Associate: 

Date: 17 August 2017