Shaw and Taylor

[2014] FamCA 287

FAMILY COURT OF AUSTRALIA

SHAW & TAYLOR [2014] FamCA 287

FAMILY LAW – CHILDREN – Interim Orders – father’s time with the child has been subject to supervision for a period of six years – Children’s Contact Centre unable to continue to facilitate supervised time on a regular basis – father sought orders removing requirement of supervision – mother opposed orders alleging father failed to comply with previous orders requiring random drug testing – child has a good relationship with father – unable to make a finding of either compliance or non-compliance – orders made requiring father to undertake drug testing regime and spend supervised time with child in a similar supervised program offered by Children’s Contact Centre.

Family Law Act 1975 (Cth) s 60CC(2), 60CC(3), 62G

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Shaw

RESPONDENT: Ms Taylor

INDEPENDENT CHILDREN’S LAWYER: Hume Taylor and Co

FILE NUMBER: ADC 2312 of 2008

DATE DELIVERED: 2 May 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 30 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: R J Cole and Partners

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Adey Lawyers

THE INDEPENDENT CHILDREN’S LAWYER: Mr B Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hume Taylor and Co

Orders

1. That orders 5 and 10 (a) of the orders made 15 June 2012 be discharged.

2. Subject to order 5 of these orders, that orders 4 (c) and 4 (d) of the orders made 15 June 2012 be suspended until Sunday 22 June 2014.

3. That during the period of suspension the parties do all things necessary to cause the enrolment and/or inclusion of the child B (the child) born … 2007, the father and if required the mother in the “Kids Connect” program operated by the Suburb C Children’s Contact Service on the basis that the child will spend time with the father at the said “Kids Connect” program each alternate Saturday commencing (if possible) Saturday 10 May 2014 during such hours as may be directed by the organiser of the said program.

4. That the father do:-

   (a)Attend for a drug and alcohol urine analysis test in accordance with the drug screen chain of custody protocol AS/NZ 4308:2008 as follows:-

   (i)At the sole cost of the father on the basis of one test to be undertaken in each of the weeks commencing 12, 26 May 2014 and 9 June 2014;

   (ii)Thereafter, on a random basis as requested by the mother and at the sole cost of the mother and at a frequency of no more than once per month;

   (b)Provide a copy of the original test results to the mother’s solicitor and the Independent Children’s Lawyer immediately after each test result is received by the father.

5. That the resumption of time to be spent between the father and the child pursuant to the orders of 15 June 2012 is conditional upon there being three (3) clear consecutive non-dilute test results.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2312  of 2008

Mr Shaw

Applicant

And

Ms Taylor

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. The matter comes before me for a hearing in respect of an Application in a Case filed by the father on 24 January 2014 (“the application”).  The proceedings generally relate to parenting issues in respect of B born 22 November 2007 (“the child”). The focus of the application is of relatively limited compass and seeks the discharge of orders 5 and 10 (a) of orders made on 15 June 2012 and further, that orders 4 (c) and (d) of the said orders do continue in operation on an unsupervised basis.

2. By Response filed 19 February 2014 (“the response”) the mother simply seeks that the father’s application be dismissed.  That would see the father’s time with his daughter continue to be regulated in terms of the orders made 15 June 2012.

3. The orders of 15 June 2012 were by consent (“the orders”).  In summary, they provided for the father and mother to have “shared parental responsibility” save and except in relation to the child’s schooling, sporting and extra-curricular activities.  The mother has sole parental responsibility in respect of those activities.

4. The orders provided for a graduated reintroduction of the child spending time with the father initially at a Children’s Contact Service at Suburb C for a period of five hours from 10am to 3pm each alternate Sunday commencing 24 June 2012 and concluding to July 2013.  Thereafter, the period of time is extended by a further two hours now to conclude at 5pm.  The orders provided for the time for the child to spend time with the father on certain nominated special occasions.

5. The time that the child is to spend with the father is the subject of strict supervision.

6. Order 5 provides:-

   All of the aforementioned periods do be fully physically supervised at all times by the paternal grandmother [Ms D Shaw] and in the event of [Ms Shaw’s] unavailability during any of the aforementioned periods, the periods do be suspended without make-up periods of time being required but nonetheless subject at all times to the operation of sub-paragraph 7 hereof.

7. Order 10(a) provides:-

   The father is restrained and injunctions are granted restraining him from removing the said child from the immediate physical supervision of the supervisor [Ms D Shaw].

8. It is demonstrable that there was a clear focus on the requirement of strict supervision of any time that the time was to spend with her father.

9. Order 10 further provides that the father is restrained from carrying out the following:-

   (a)Taking the said child to the toilet, undressing or dressing the said child in the physical absence of the supervisor [Ms D Shaw];

   (b)Damaging, disposing of or otherwise retaining any of the said child’s clothing, shoes or other items provided by the mother at the commencement of the supervised periods;

   (c)Consuming alcohol, illicit drugs or prescription drugs to excess for a period of 12 hours prior to or during any period of supervised time that the said child spends with him.

10. It is noted that whilst the orders were made by consent the injunctions contained in order 10 were made without admission by the father as to the necessity of those orders being made.

11. Accordingly, the father seeks that his time with the child be taken upon the same terms and conditions as provided for in the order of 15 June 2012, save as to the discharge of any obligation that the said time be the subject of supervision.  The mother is trenchantly opposed to the orders sought by the father.

12. The proceedings have a long and complex history. For the purposes of this introduction it is noted that orders were made by Federal Magistrate Simpson (as he then was) on 4 May 2011 transferring the proceedings to the Family Court of Australia for inclusion in the Magellan List. There was a further order made that continued the suspension of the child’s time with the father and upon the matter coming before Burr J on 7 October 2011, time with the father was resumed at the Suburb C Children’s Contact Centre for six occasions with a report to be prepared pursuant to Section 62G (2) of the Family Law Act 1975 (Cth) (“the Act”) thereafter.

13. On 9 March 2012 orders were made by Burr J setting the matter down for trial with the child to spend time with the father at the Children’s Contact Centre until the conclusion of the proceedings.  The proceedings were concluded by the consent orders of 15 June 2012.

14. The said orders further provided as follows:-

    (15)After the expiration of 12 months from the date of this order and provided the father has taken all reasonable steps to comply with the terms of this order and update Family Report do be undertaken by [Ms E] in the usual terms and addressing the issues of the said child spending future periods of unsupervised/overnight time with the father and handover issues if appropriate.

    (16)Following the receipt by the parties of the updated Family Report, the parties and the Independent Children’s Lawyer do all reasonable acts and things so as to participate in a Family Dispute Resolution Conference at the Legal Services Commission, such conference to be arranged at the request of the Independent Children’s Lawyer.

(17)In the absence of agreement between the parties following the Family Dispute Resolution, this case do be relisted before this Honourable Court for further consideration following a request by either party in writing.

1. Clearly, the orders of 15 June 2012 were intended to be by way of interim orders only in the hope that at the conclusion of 12 months the parties would be able to resolve their differences, but if not there was no impediment to either party having the matter relisted.

2. By order made 4 April 2014 I have listed the matter for a first day hearing on Wednesday 14 May 2014 and on current indications the matter is likely to be listed for trial in either December 2014 or January 2015.

THE APPLICATION

1. The Court record is extensive.  The proceedings in respect of parenting orders relating to the said child were commenced in 2008 and were initially resolved by final orders made 11 August 2010.  Those orders also considered the question of supervision as an integral term but with such requirement to be gradually reduced over time.  The father’s time with the child has been subject to supervision for almost six years.

2. The proceedings were the subject of a fresh application by the mother in December of 2010 and the father’s time with the child was suspended by order made 8 February 2011.  By order of 7 October 2011 the child recommenced spending time with the father but on a supervised basis at the Suburb C Children’s Contact Centre.

3. The catalyst at least in part for the current application is a letter from the paternal grandmother Ms D Shaw dated 1 October 2013 forwarded to the father’s solicitor in the following essential terms:-

   My situation is that my relationship with [Mr Shaw] has broken down and I truly feel that I cannot continue any further as supervisor.  I do not know what steps I should take and therefore am requesting that you advise me of my situation.

4. That letter is Annexure “A” to the supporting affidavit filed by the father on 24 January 2014.  Given the focus on supervision by the paternal grandmother in the orders of 15 June 2012, her advice that she was no longer prepared to participate as supervisor is clearly critical to the ability of the child to spend time with the father and the extent to which, if no other alternative is available, the effect on the relationship between the father and the child.

5. As a consequence of the orders made the parties attended upon family consultant Astrid E for the preparation of an updated family report.

6. The report was published in September 2013 at a time when the paternal grandmother was continuing to offer her services as a supervisor pursuant to the orders of 15 June 2012.  The report therefore is generated as contemplated by the order of 15 June 2012.  By necessary implication, the report was not seeking to comment on any final parenting orders that should be made but rather focussed on the following:-

   The primary issues appear to be:-

   ·Whether or not the child’s visits with her father should remain supervised

   ·If visits should be extended to overnight

   ·Whether the changeover venue should remain the same

   ·Mr Shaw’s compliance with the orders

7. Ms E notes the current relationship between the parties in the following terms:-

   [3]There is continuing antagonism between the parties.  Over the period of Court proceedings [Ms Taylor] has made allegations of domestic violence, threatening behaviour, sexual interference towards the child the child and non-compliance of orders by [Mr Shaw].  The allegations of sexual interference were not substantiated and [Mr Shaw] reported that he had recently complied with all orders requested of him.  Compliance with orders remains a difference of opinion between the parties.

8. Accordingly, the report is very much focused to the interim arrangements rather than a final determination.

9. In relation to the observed interaction between the father and the child, the family consultant reports as follows:-

   [26][The child] presented as a lively, intelligent young girl with good language skills.  She said she was in reception at school and talked about her likes and dislikes.  When asked, she said she was aware of why she was attending the interview.

   [27][The child] said it was “because I want to see my Dad” adding that she liked seeing him and has been seeing him for a long time.  [The child] talked about what she did with her father and grandmother and then added she wants to see her father by himself.  [The child] said she likes to see her grandmother too and would like to visit her but likes it best just to see her father.  [The child] added that her father and grandmother fight a lot at the end of the day and she doesn’t like that.  She reiterates that she wants to have a good day just with her Dad.  [The child] stressed that nobody had told her to say this when the writer put this question to her; she said it is just what she wants.

   [28][The child] said she had told her mother this but she had said no.  [The child] was not sure about sleeping over yet.

   [29]When the child returned to spend time with her father she ran up to him and gave him hugs and kisses.  During the observation the child and her father sat on the sofa to read a book and then played together with toys on the floor.  [The child] appeared to become quite boisterous as she was playing with the dinosaurs but calmed down when requested by [Mr Shaw].  She had no hesitation in saying no if she did not agree with him.  There appears to be a positive relationship between [Mr Shaw] and [the child].

10. The family consultant records that the mother has:-

    gained a negative view of [Mr Shaw] from her own experiences and his history of abusive and negative behaviour.  Through her behaviour she possibly projects her own fears and negative impressions to the child without being aware of it.

11. Importantly at paragraph 35 the following is reported:-

    Although it can be argued that all of [the child’s] time with her father has been supervised and the opportunity has not arisen for him to behave negatively towards her, [the child’s] safety with him does not seem to be the main objection.  [Ms Taylor’s] objection to unsupervised time appears to relate to her mistrust of him, his alleged non-compliance with orders and her fear that he will undermine her to [the child].

12. The recommendations of the family consultation is that the child should spend unsupervised time with the father to “enable them to develop a father/daughter relationship that is more normal”.

13. Whilst the family consultant opines that after a period of three months of unsupervised time consideration should be given to overnight periods, that is not an order that the father seeks.

14. In support of her response the mother filed an affidavit on 19 February 2014.  As noted, the mother is trenchantly opposed to the orders sought by the father and sets out a number of concerns of the mother in respect of various matters that allegedly occurred in 2012 as deposed to in paragraphs 11 through to 16 of her affidavit.

15. Paragraph 18 asserts that the father has been non-compliant with orders made 15 June 2012, namely as to the obligation to provide clear and consecutive non-dilute drug tests.  There then follows a significant and complex factual dispute as to whether there has been compliance with the orders requiring the father to undertake drug tests, whether those drug tests have been undertaken and if they were, whether there was satisfactory compliance with the necessary protocols.

16. It is unlikely that I am able to make a clear determination as to whether there has or has not been appropriate compliance with the orders made 15 May 2012.  I am however able to have some regard to the treatment report of clinician Mr F of the Drug and Alcohol Services of South Australia in his report of 6 August 2013 being Annexure “G” to the affidavit of the father filed 24 January 2014.

17. It is a reasonable summary of the report that the father has rehabilitated himself in terms of his drug use and that he has developed a level of “self-reflection” since the initial attendance in July of 2010.  I am mindful of the mother’s criticism of the report of Mr F in her affidavit but consider that whilst it would have been of assistance if there was no dispute as to whether the father had properly complied with his obligations pursuant to the orders of 15 May 2012 as to drug testing, I consider it important to be satisfied that there has been a substantive change in the father’s behaviour, that he has taken active steps towards rehabilitation and has gained some insight into what must have been his distressing and difficult behaviour.

18. Counsel for the mother argued that the orders of 15 June 2012 were strictly predicated on strict compliance by the father of the obligations created by paragraphs 5, 6, 7 and 8 of the orders.  Significantly but not exclusively so order 8 requires the father to undergo drug and alcohol urinalysis testing in accordance with the drug screen chain of custody protocol. The mother has held a view (and with some historical justification) that the father had a drug and alcohol problem to the extent that it would speak against him spending unsupervised time with the child.  Whilst the drug testing was rigorous there was however an end to the process which would be satisfied following the completion of three clear consecutive non dilute drug tests to be performed on a regular basis and then, three further tests to be performed on a random basis as requested by the mother.

19. There remains a dispute as to whether the father has or has not complied with the orders.

20. As already the subject of comment, it is unlikely that I could determine on an interim basis whether there has or has not been compliance with the orders.

21. A more important issue however is that the father has had the opportunity to be proactive in respect of the issue generally.

22. Whilst it would be inaccurate to suggest that the issue of the father’s sobriety is the only area of concern to the mother, it is nonetheless significant and has been the subject of much adverse discussion in affidavit material.

23. The Independent Children’s Lawyer (“the ICL”) referred to the father’s conduct in respect of the issue of drug testing as “laissez faire”.

24. The father does not have an obligation to do more than is required by an order of the Court.  Over and above that obligation, the father is able to present his case as he sees fit.

25. I am however concerned that in respect of the one area where it is possible to have some certainty of outcome namely the provision of clear drug test results the issue is still the subject of mistrust. I propose to make orders in any event that would see the father undertaking further drug testing with the hope of providing some better evidence as to the husband’s current state of sobriety.  It may have the further and incidental advantage of allaying some of the mother’s clear concerns.

26. Of significant focus is the general assertion by the mother that the child is not happy to spend time with the father particularly unsupervised, that the child is reluctant and resistive to the current orders and the assertion by the mother that the child is frightened of the father and is worried about her father’s behaviour when she is with him particularly in terms of his interaction with the paternal grandmother.

27. At first instance, the reports of the mother in terms of the complaints of the child would not sit comfortably with the observations of the family consultant.

1. Annexed to the affidavit of the father’s solicitor filed 20 March 2014 is a report prepared by Ms G, the co-ordinator of the Suburb C Children’s Contact Service.

2. The report provides observations of the parent/child contact on various occasions between 10 November 2013 and 2 March 2014.  The general tenor of the observations is that “the contact took place with no sign of distress from the child and with appropriate behaviour from parents in farewelling and greeting the child”.

3. The observations of the worker were entirely positive and there were occasions when the child indicated clearly that she wished to remain longer in the father’s care.  Importantly, the child appeared to have a good concept of the routine which would regulate the time that she spent with the father and from the very first observed visit made the observation that the time between visits was “a long time”.  There were clear and genuine displays of affection and emotion between the father and the child.

4. It is difficult to form a view other than the time spent between the father and the child was positive, child focussed and was the subject of ready and keen reciprocation by the child.  There were no signs of distress by the child and on each of the nine periods of observed interaction the behaviour of the father was entirely appropriate.  The only occasion when the child demonstrated any reluctance to remain with the father occurred on the observed interaction on 19 January 2014 where it would appear that the child had a birthday party to go to and was keen to do that rather than spend an extended time with the father.

5. The father’s time has been the subject of supervision for a number of years. Whilst there may be some potential for disagreement between the parties as to the period supervised by the paternal grandmother, it is less likely that the observations of the various workers attached to the Contact Centre would be suspect.

6. The observations in the report of Ms G are consistent with the observations of the family consultant.

7. The mother relies upon a report by her clinical psychologist Ms H dated 12 March 2014 being Annexure “A” to the affidavit of the mother’s solicitor filed 14 March 2014.  There is uncertainty as to the purpose of the psychological opinion as provided but it seems that the request centred upon the following, namely a wish to ascertain as to whether Ms Taylor is projecting anxiety onto her daughter the child about Mr Shaw and her mental health in general.

8. It may be the case that the information provided by the mother to her psychologist was very much based upon her own version of the events.  There is limited evidence that the child is anxious about her father and indeed if the observations of the father’s supervised time with the child are accepted, the converse appears to be the case.

9. To the extent that the mother clearly has significant mistrust of the father, the basis would appear to be “centred on her fear that the child has been sexually abused by her biological father Mr Shaw and that recent supervised access with Mr Shaw seems to trigger nightmares and sexualised behaviour in the child”.

10. I do not understand that this was the thrust of any affidavit material filed by the mother in support of her response to the father’s application.  I accept that the mother had concerns as to the extent to which the father has complied with Court orders, in particular in respect of drug testing, but it has not been a feature of the proceedings to date that the mother relies on any allegation that the father presents an unacceptable risk to the child in respect of sexual abuse.

11. The difficulty therefore is that the report from the clinical psychologist would suggest the mother is presenting differently to Ms H as representing the foundation for her opposition to unsupervised time with the father than is the basis in the affidavit material.

12. Counsel for the mother has confirmed that she will not be alleging that the father has sexually abused the child, or that he presents an unacceptable risk arising out of an allegation of sexual abuse.  The mother obviously considers that the child is at risk in respect of other aspects of the father’s behaviour but at least the removal of an allegation of sexual abuse is more likely to focus the attention of the parties on the principal issues.

MS D SHAW

1. The maternal grandmother has up until relatively recently been the supervisor of the time spent between the father and the child.

2. There is significant uncertainty as to the importance of evidence that could be given by the maternal grandmother in the sense that the orders of 15 June 2012 were predicated upon the supervision by Ms Shaw, her ready ability and willingness to communicate with the mother and that she should be prepared to provide feedback and comment as to her observations of the time spent between the father and the child.

3. It appears that the relationship between the father and his mother degenerated into unhappy differences.  The father has filed an affidavit on 15 April 2014 detailing the difficulties he has experienced with his mother and regrettably alleges that his mother suffers from a history of mental health problems.

4. The father does not consider it appropriate that his mother be subpoenaed in the proceedings given that there is other evidence that goes to the observations of time spent.

5. Counsel for the mother strongly submits that the inability of the father to obtain an affidavit from his mother entitles me to draw an adverse inference namely, that any report that she would give would be unfavourable to him.

6. I do not consider that at this stage I am able to make such a finding.

7. By letter dated 31 March 2014 (Annexure “A” to the affidavit of Mr J filed 1 April 2014) a letter from the ICL is attached which includes correspondence received by him from the maternal grandmother. A careful consideration of the matters raised in the handwritten correspondence is more properly directed to the difficulties that arise in the relationship between the father and his mother rather than any overt or adverse conduct between the father and the child.

8. Of course, the obvious issue is raised namely, that if matters between the father and his mother had reached such a low ebb, it should have been incumbent upon the father to bring the breakdown in that relationship to the attention of the mother, the ICL and ultimately the Court.

9. Notwithstanding those misgivings, there is little of substance that is the subject of complaint by the maternal grandmother in terms of the behaviour of the father towards the child.

10. The maternal grandmother may well be required to give evidence in the proceedings and I made it clear that I would be receptive to a subpoena being issued to require her attendance if any of the parties including the ICL sought her involvement in the final hearing.

“KIDS CONNECT” PROGRAM

1. A significant concern has been the extent to which the relationship between the father and the child would be adversely affected if there was no opportunity for any supervision to be provided.  The father’s mother is no longer an option and to the extent that the Children’s Contact Service has made some opportunities available, it is only on the basis of a cancellation and in any event is not now likely to occur again until June/July 2014.

2. An opportunity however exists in terms of the father spending some time with the child in a related service offered by the Children’s Contact Service namely, the “Kids Connect” program.

3. This program is seen as a transition from a more intensive supervised contact environment to a setting that requires “less vigilant supervision in a monitored group setting”.

4. The precise details and availability of the “Kids Connect” program is uncertain but generally speaking it would enable the father to spend time with the child on Saturday afternoons for a period of between one and two hours.  It is age specific and is not seen as a long-term supervision solution but rather a transition program.

5. I consider that this program can be utilised to good effect in terms of the interim orders that I propose to make.

THE LAW

1. In Goode & Goode (2006) FLC 93-286 the Full Court considered appropriate legislative pathway when dealing with interim parenting applications:-

   [81]In making interim decisions a Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parties as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

   [82]In an interim case that would involve the following:-

   (a)         Identifying the competing proposals of the parties;

   (b)         Identifying the issues in dispute in the interim hearing;

   (c)         Identifying any agreed or uncontested facts;

   (d)Considering the matters in Section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)Deciding whether the presumption in Section 61DA that equal shared parental responsibility is in the best interest of the child applies or does not apply because there are reasonable grounds to believe that there has been abuse of the child or family violence, or in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)If the presumption does apply deciding whether it is rebutted because application would not be in the child’s best interests;

   (g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or is impracticable;

   (h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in Section 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or is impracticable;

   (i)If neither equal time, or substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of the consideration of one or more of the matters in Section 60CC;

   (j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in Section 60CC; and

   (k)Even if the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it, or, even if neither party has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. To some extent the issues to be determined are narrow and centre upon question of supervision and its continued imposition.

3. I am not being asked by the father to significantly alter the terms and conditions of the order currently in force and whilst I give proper regard to the matters in Section 60CC (3), I do not propose to address each and every sub paragraph.

4. I do consider it important however to have more detailed regard to the provisions of Section 60CC (2) namely:-

   The primary considerations are:-

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

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

5. The consideration of the primary considerations in Section 60CC (2) is central to the determination of the current interim proceedings.

6. The concerns raised by the mother focused upon the father’s sobriety but not exclusively so have residence in Section 60CC (2) (b).  The father’s application seeks to focus on Section 60CC (2) (a).

7. I consider that it is important to ensure continuity of the relationship between the father and the child.  It is demonstrably good and I accept the observations of the family consultant and those of the various supervisors from the Children’s Contact Centre that observed the interaction between the father and the child on nine separate occasions.

8. But for the lingering doubt that I have arising out of the mother’s concerns as to the alleged non-compliance by the father of the orders of 15 June 2012, I would have considered that the balance falls in favour of the child spending unsupervised time with the father forthwith.

CONCLUSION

1. The father has indicated a preparedness to undergo further drug testing if I shall so order.  It appears to be a matter of outstanding concern to the mother but irrespective of her attitude, it would be an important check and balance in terms of any order that I make that would see the father spending unsupervised time with the child.

2. Accordingly, I propose to order that the father undergo further drug testing and that during the period of same the child will spend time with him in the setting of the “Kids Connect” program.  At the conclusion of the drug testing period I propose to make orders that would see the father spend unsupervised time with the child as sought by him in his application.

3. For the above reasons I make orders that appear at the commencement of these reasons.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 May 2014.

Associate:

Date:  2 May 2014