STIRLING & DODD

FEDERAL CIRCUIT COURT OF AUSTRALIA

STIRLING & DODD

[2014] FCCA 1357

Catchwords:

FAMILY LAW – Interim proceedings – child aged almost two years – parties separated prior to child’s birth following brief relationship – father has only spent professionally supervised time with child – father has spent twelve supervised sessions with child at a children’s contact centre – mother proposes that father should spend further time with child in a supervised playgroup setting – father seeks to spend time with child in an unsupervised setting – parties have poor and mistrustful relationship – both assert the other has psychiatric issues – nature of interim hearing – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CC; 61DA; 62G

Applicant:

MR STIRLING

Respondent:

MS DODD

File Number:

ADC 552 of 2013

Judgment of:

Judge Brown

Hearing date:

6 June 2014

Date of Last Submission:

6 June 2014

Delivered at:

Adelaide

Delivered on:

6 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Wedding

Solicitors for the Applicant:

Adelaide Lawyers

Counsel for the Respondent:

Mr G Hemsley

Solicitors for the Respondent:

Vicki Lehmann & Associates

ORDERS

The child X born on (omitted) 2012 live with the mother.
The father spend time with the said child as follows, subject to the following conditions:
(a)Each Saturday commencing 21 June 2014, for a period of 3 hours at times to be agreed between the parties and subject to the opening times of the (omitted) Children's Contact Centre, and in the event of failing agree to be from 10:05am until 1:05pm;
(b)Thereafter, on each Saturday commencing 26 July 2014, for a period of 4 and a half hours at times to be agreed between the parties and subject to the opening times of (omitted) Children's Contact centre, and in the event of failing to agree, from 10:05am until 2:35pm;
(c)Thereafter on each Saturday commencing 30 August 2014, for a period of 5 and a half hours at times to be agreed between the parties and subject to the opening times of (omitted) Children's Contact centre, and in the event of failing to agree, from 10:05am until 3:35pm; and
(d)Thereafter on each Saturday commencing 27 September 2014, for a period of 6 and a half hours at times to be agreed between the parties and subject to the opening times of (omitted) Children's Contact centre, and in the event of failing to agree, from 10:05am until 4:35pm.
The time the father spends with the said child pursuant to paragraph 2 hereof be on the condition that it takes place at the home of the paternal grandparents MR R & MS C and be subject to their supervision.
The father be restrained and an injunction be granted restraining him from consuming alcohol during each period of time-spent with the said child and twenty-four (24) hours prior to any such period.
Handover of the said child be at the (omitted) Children's Contact Centre or as agreed, and in the event the Contact Centre is unavailable at the (omitted) Police Station.
The mother provide details of the said child’s health, and dietary requirements or any other relevant information in a Communication Book which shall be exchanged at handovers, with the father to detail the activities the said child has engaged in whilst in his care in the Communication Book prior to its return.
The mother and the paternal grandfather exchange mobile phone numbers within seven (7) days of today’s date.
The paternal grandfather contact the mother if the said child becomes unduly upset or distressed during the father’s time in order to arrange his return to the mother.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child/children of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Circuit Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 October 2014.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

Further consideration of this matter be adjourned to 18 November 2014 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 552 of 2013

MR STIRLING

Applicant

And

MS DODD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally, following the interim hearing. As will become apparent, the circumstances surrounding the case were highly controversial. Given the controversy surrounding the matter, it is appropriate that the reasons be transcribed and released to the parties. These are the reasons concerned.
This case presents a relatively common scenario, which creates significant dilemmas and difficulties for the court. The parties concerned had a short and mutually unsatisfactory relationship with one another. The relationship produced a child, now of tender and vulnerable years.
The parties ended their relationship many months prior to the birth of the child. As such, they have no shared experience of tending to the child’s needs or of learning together how to discharge the heavy responsibilities of being a parent. Now the only thing the parties have in common, apart from their parenthood, is a deep and abiding sense of mistrust and disquiet about the other.
Given the simple imperatives of biology, the child concerned has lived exclusively with the mother up to this stage. She, necessarily as a consequence of the brief nature of the relationship concerned and the unhappy circumstances surrounding its demise, is both highly protective of the child and suspicious of the father.
Against this difficult background, the father and those associated with him through blood, have a natural curiosity and interest in the child. They, particularly the father, desire to have a relationship with the child, and to be able to come and know and, in time, love him.
For obvious and self-apparent reasons, the parties concerned are likely to have no facility to broker an agreement as to how to move forward in terms of parenting arrangements for the child. In a practical sense they do not really know one another. Certainly they do not trust one another.
In such circumstances, there arises a sense of inevitability about the institution of legal proceedings. As a consequence, a third party - the court - is enjoined to decide how the best interest of the child can be secured, pursuant to principles of law. In this case, the provisions contained in Part VII of the Family Law Act 1975, which is the legislation dealing with children.
Part VII of the Family Law Act 1975 is prefaced by a number of principles and objects, which the court must bear in mind in deciding how the best interests of any child concerned, relevant to any proceedings coming before it, are to be served.
In particular, pursuant to section 60B(1)(a), the court is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.
Underlying this objective or aim of the legislation are, amongst others, the following principles:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
These are statements of fundamental principle in the application of the relevant legislation. It is children who have the entitlement to know both their parents. It is children who have the right to know and be cared for by both their parents. It is also the right of children to have some form of relationship with people, who share their background and biology, such as grandparents and other relatives.
Of course, children also have an entitlement to be safe and protected from coming to harm, particularly the harm represented by family violence, neglect and abuse. These rights are also recognised in section 60B.
In this case, from the father’s perspective, the underpinning of his case is the subject child’s rights to know him and other members of his family. From the mother’s perspective, given the tender years of the child concerned, at this stage, where there is little trust and no parental relationship between the parties concerned, she places her emphasis on the imperative of protecting the child from harm.
This difficult issue arises for the court at the interim stage, where there is a limited opportunity for the parties to be cross-examined and their motives subjected to scrutiny.
In addition, at this stage, there has, as yet, been no opportunity for a detailed report to be prepared concerning the psychological and developmental needs of the child. Notwithstanding all these difficulties, the court must make a decision in these problematic circumstances.

Background

Mr Stirling “the father” and Ms Dodd “the mother” are the parents of X, born on (omitted) 2012. Accordingly, X is now almost 2 years of age. Mr Stirling is thirty two years of age and is employed as a (occupation omitted), in a business operated by his father, Mr R. Ms Dodd is thirty eight and is currently engaged in home duties.
As far as I have been advised, neither of the parties has any other children. Certainly none are indicated on the child’s birth certificate, which bears the hyphenated name for X of Dodd-Stirling. However, in these proceedings, I note that he has been referred to as X.
The parties met through a shared social situation and commenced a relationship in August of 2011. They finally separated in November of 2012. It seems to be the case that they never formally co-habitated or not for any lengthy period of time.
The father commenced these proceedings in February 2013, when X was around eight months of age. In his supporting affidavit, he admitted he had no relationship with X whatsoever, and had never even ever seen the child. He was highly critical of the mother for not involving him in either the process of X’s birth or what happened afterwards in respect of his care.
Notwithstanding this state of affairs, the father sought an urgent listing of his application. In his application, on both a final and interim basis, he sought orders that would have seen him, if granted, having sole parental responsibility for X and the child living predominantly with him and spending time with his mother at times to be agreed between the parties.
I agree with the assessment of counsel for the mother, Mr Hemsley, that this application was insensitive, lacking in insight and certainly not child-focused. It was also destined to fail, given his self-acknowledged lack of any relationship whatsoever with X.
Unfortunately, notwithstanding the best efforts of the legislature in this country and, indeed, courts such as this one, efforts to restrain parents and those advising them, from bringing anything but ambit claims is, it would seem, destined to failure. This application, I think, can only be described as an ambit claim. No doubt it created both consternation and indignation in the mother.
However, the ostensible rationale for the application was Mr Stirling’s view that the mother’s behaviour, at the time of the party’s brief relationship and afterwards, had been erratic and inappropriate. He deposed as follows:
“I am concerned about the mother’s ability and capacity to care for the child due to her mental instability and violent tendencies.”
In a relatively short affidavit few, if any, particulars are provided of this potentially serious allegation. Notwithstanding this lack of detail, given the flavour of this affidavit, the proceedings, subsequently, between the parties have, not unsurprisingly, been bitterly and acrimoniously contested.
The mother responded to the application on 28 March 2013. It was her position, on both a final and interim basis, that X should live with her and any time the father had with X should be under rigorous professional supervision and subject to the condition that Mr Stirling was restrained from consuming alcohol or illicit drugs for any such periods or for the period of 12 hours beforehand.
In addition, the mother sought that there be a psychiatric assessment commissioned in respect of Mr Stirling. It was the mother’s position that the applicant father had demonstrated, during the period of the parties’ brief relationship and afterwards, significant mental health problems and his behaviour towards her had established that he had a serious drinking problem.
It was her evidence that, during the parties’ relationship, the father had indicated to her that he had earlier been diagnosed with something known as a personality dissociative disorder. From the mother’s perspective, it was her evidence that she had seen evidence of the father behaving aggressively and oddly towards her, which impliedly supported this diagnosis.
It was her position, that after the relationship between the parties had ended, and whilst she was pregnant with X, Mr Stirling had harassed her, particularly on the telephone. In particular she deposed as follows:
“I say, however, that the father was very unpleasant and, at times, a violent man. Whilst pregnant, the father did not hesitate in elbowing me out of the way in my stomach. I knew that our relationship was never going to work.”
In these circumstances, she has been unwilling to disclose her address, either to the court or to Mr Stirling. It is, however, her position that X is in good health, is well cared for by her, and she is able to provide him with comfortable and suitable accommodation.
In a responding affidavit, the father has characterised himself as a social drinker. In contradiction, to what the mother asserts, it is his position that it is she who had both alcohol and drug issues, during the parties’ brief and unhappy relationship.
In support of his position, he points to the fact that his employment regularly takes him into aged care facilities, where many of the residents concerned are in poor health and subject to all manner of physical frailty. It is his evidence that, if he was psychiatrically unstable, he would not be able to perform his duties.
He acknowledges that he did have emotional and psychiatric issues around 2010. He attributes these difficulties to the breakdown of a previous relationship. He acknowledges that he was diagnosed with some form of personality disorder around this time.
It is his evidence that this was treated through a process of counselling offered by the South Australian Department of Health. In this context, he has provided a letter, dated 10 April 2013, from a person who describes herself as the Dialectical Behaviour Therapy Co-ordinator at (omitted), which indicates that he was diagnosed with a borderline personality in 2010 and was referred to the dialectical behaviour therapy program at (omitted) Community Health Service.
The report goes on to say that Mr Stirling completed a 22 week course. It is Mr Stirling’s position, as I say, that his problems have been managed and have largely resolved as a result, in part, of this intervention.
In addition, at this stage, the father relies on an affidavit and, in addition, on some oral evidence from his father, Mr R. Mr R is a gentleman, I think, who is in his late sixties. He works, on a daily basis, with the applicant father and he has deposed that he has witnessed the mother harassing the father through phone calls rather than vice versa.
So the parties have diametrically opposing views of one another. Each, in essence, asserts that the other is both violent and psychiatrically unstable. This dichotomy provides the context in which the court must make its decision.
As a consequence of the nature of their respective cases – both the father of the mother and the mother of the father – asserts that the other is disqualified from having any significant degree of involvement with X, who axiomatically, given his age, must be regarded as a vulnerable child.
The father’s application came before the court, for the first time, on 11 April 2013. At that stage, in an attempt to see if there was any common ground between the parties, they were referred to a child dispute conference.
This conference took place on 25 June 2013. At that stage, due to the difficult history between them, the family consultant concerned did not think it was appropriate for the parties to be around the same table together. Accordingly they were seen separately.
The counsellor found Ms Dodd to be child-focused. The father impressed her as wanting to have a relationship with the child. For what it is worth, my impression of each of the parties is congruent with what the family consultant assessed at that early stage.
Mr Stirling told the family consultant that, ultimately, he wanted a week-about arrangement for X. X was and remains a very young child. At this stage, the father had absolutely no relationship with the child concerned.
It seems that his position is likely to have been perceived, by the mother, as being somewhat provocative and insensitive. Certainly the family consultant regarded the goal of a week-about regime as being somewhat unrealistic at this stage.
One of the things that strikes me, about this case, is the inability of the parties to empathise, or place themselves in the shoes of the other. Necessarily this has led to the polarisation of the case, which is characterised by the almost complete absence of any ability to find common ground between the parties concerned.

At any event, at that stage, it was suggested by the family consultant that there should be supervised time between the father and X. In addition, it was recommended that each of the parties should submit to a psychiatric assessment. In due course, the consultant considered that a family report might assist the court to determine how the child should have a relationship with both parents.
Necessarily, at this early stage, the family consultant was well aware that it was not a case of “if” the child should have a relationship with his father. Rather it was a question of “when”. As I have indicated, the legislation is directed towards ensuring that children have a meaningful level of relationship with, not one, but both their parents. This arises notwithstanding the circumstances of the parties’ relationship.
In terms of the application of the law, it matters not at all whether the parents concerned were married for 20 years or more, or whether they had the most fleeting of relationships. A child has an entitlement to know what his maternal and paternal biological inheritance is and be exposed to each of his parents regardless of the fact that his/her parents are “married, separated, have never married or have never lived together [section 60B(2)(a)].
The matter returned to Court on 2 August 2013. To the parties’ credit, they were able to agree on a way forward. It was agreed that X would live with the mother. It was also agreed that Mr Stirling would spend supervised time with the child on six occasions at the (omitted) Contact Service. Thereafter there was to be a report from the Contact Centre. In addition, each of the parties was to undergo a psychiatric assessment by a consultant psychiatrist, Dr B.
The mother was psychiatrically assessed at an early stage of the proceedings. Dr B was impressed with Ms Dodd’s presentation. He could detect no signs of mental illness or personality disorder in the mother. Rather Dr B considered that she presented well and was coherent in her account of her life and her relationship with X.
However, Mr Stirling was not able to provide the report from Dr B, which the court, with his acquiescence, had directed should occur. It is his position that he is a modest income earner and had to borrow money to institute these proceedings and, as a consequence of that, he simply did not have the money to get the psychiatric report from Dr B.
From the mother’s perspective, this was more reason for her to be suspicious of the father and believe that it was likely to be the case that he had something to hide about his level of psychiatric functioning. I hasten to say that it is partly as a consequence of Mr Stirling revealing the report from the South Australian Health Department, that the mother and those advising her are aware of a formal diagnosis of personality disorder. In any event, the report was not to hand, when it had been anticipated.
On that basis, the proceedings were adjourned again. The matter came back to court on 13 December 2013. The report had not been obtained. The time for Mr Stirling to obtain Dr B’s report was extended to the end of April, and in the meantime, the regime of supervised time was extended.
As a consequence, I have been provided with reports from the children’s contact centre, which detail visits between Mr Stirling and X, which began on 16 September 2013, and progressed until 31 March 2014. The reports are lengthy and cover several visits.
As is the way with these reports, the person who has undertaken the supervision has been vigilant in the provision of that supervision and diligent in recording the observations of the father and child concerned. It is now common ground that there have now been twelve supervised visits between the father and X.
Each party, particularly the mother and those advising her, have closely scrutinised what is recorded in the report. It is, I think, difficult to interpret, definitively, reports such as these without some specific oral interpretation from the supervisor concerned. Necessarily a child’s behaviour is mercurial or ever changing and these reports, I think, display a wide range of behaviours on X’s part.
I accept that the situation of supervision was likely to be difficult both for Mr Stirling and for X himself. It is not easy for a person with not a great deal of parenting experience, such as Mr Stirling, to come into a situation of significant emotional component - meeting his son for the first time - against a background of some significant conflict - without some trepidation.
In addition, obviously X does not have the mental development to know what is happening to him. It is only, perhaps, to be expected that there would be difficulties in such an experience for both father and child. Necessarily the process of supervision is not without aspects of artificiality.
Mr Hemsley, counsel for the mother, points to a number of entries in the report, which indicates that the supervisor had to guide the father in many aspects of his parenting of X in the supervised setting. In particular he needed guidance when to feed, and give X a drink, when he needed to be changed and, particularly, how he could be soothed effectively, when he was distressed, and there was no doubt that X was distressed from time to time.
In Mr Hemsley’s submission the report indicates that Mr Stirling is a man - and this is, I think, Mr Hemsley’s expression - “with zero parenting skills or insight”. On this basis, it is submitted that the court needs to adopt a very cautious approach to extending the father’s time with X or abandoning any external and independent form of scrutiny.
However it is, I think, perhaps unfair to Mr Stirling to assert that the reports are essentially negative so far as he and his interactions with X are concerned. From my perspective, it is probably more useful to look to the last report of 31 March 2014 rather than to concentrate on the earlier ones.
In the report of 31 March, Mr Stirling is recorded as being pleasant to the staff when he arrived. When X and the father were introduced to one another, X was essentially disinterested – he did not make eye contact with his father or respond to what was said to him.
In this somewhat challenging context, Mr Stirling, apparently, patiently followed his son and spoke to him. He is described as indulging X’s play ideas. However X’s facial expressions were fairly limited in response. That was until something happened, which involved Mr Stirling’s mobile phone. Then Mr Stirling gave X an aeroplane ride – presumably he lifted the child up and as small children do, X put his arms out in an aeroplane fashion – and then this is what was reported:
“X smiled broadly and appeared to come alive.”
The visit proceeded further, and it appears to have been a happy one. Mr Stirling offered X a drink, there was some business about some fruit and that was the end of the visit. Mr Hemsley points to the fact that X left without saying goodbye to underline the lack of relationship between the two.
Again, it is perhaps imprudent to put too much emphasis on the minutiae of these reports, but what they indicate is that there is some form of relationship, I think, between X and his father. I acknowledge that it must be in its very nascent or introductory stages. However, the various reports certainly indicate that Mr Stirling is committed to the process of getting to know X better.
Following the last visit, Mr Stirling told the worker that he was returning to court in May and he was hopeful that there could be some more visits. It would seem to be the case, although I may be wrong in this regard, that regrettably nothing has been able to be arranged. So the matter returns to court for me to decide what is to be the next step forward.
There is now one more significant piece of evidence. Dr B has now provided a psychiatric report in respect of Mr Stirling. That was done in the first week of May of this year. Dr B consulted with Mr Stirling for about one hundred and thirty minutes. Accordingly, the consultation was one of a reasonable length.
One thing needs to be pointed out about all forensic psychiatric examinations. The parties, who take part in such forensic psychiatric examinations, are aware that they are being psychiatrically assessed. In those circumstances, they are likely to be guarded about how much they reveal, and careful in their presentation.
They would be foolish if they did otherwise. As such, it is invariably the position that psychiatrists, who have been asked to examine parties for the sake of proceedings like this, that they indicate the difficulty of definitively diagnosing a person in such circumstances, or indeed, making assessments of their overall level of credibility.
In any event, like Ms Dodd before him, Dr B found nothing particularly exceptional about Mr Stirling. Mr Stirling, as he has done throughout these proceedings, recounted his unfavourable view of the mother and what he regarded was her violent and unstable behaviour during the parties’ relationship. He repeated that he did not have any drinking problem and that his psychiatric problems were resolved.
In terms of his psychiatric history, the father told Dr B that he had had problems with anxiety from adolescence onwards and that this had led to a panic attack. The father reported that he believed that this was a result of being bullied at school.
Mr Stirling disclosed to Dr B that he had had a more severe mental health problem in 2010 as a result of a previous relationship. This had led to him becoming involved with the public mental health system at (omitted) and the referral for dialectical behaviour therapy.
Dr B confirmed that such treatment was regularly prescribed for people with a borderline personality disorder. However, from what he knew of the father, Dr B was somewhat doubtful about this diagnosis, although he accepted that Mr Stirling suffered from some form of anxiety disorder, namely a panic disorder. However, overall, Dr B observed no signs of psychosis, intoxication or of cognitive impairment in the father.
So the parties return to court. The preparatory steps envisaged in the early part of 2013 have taken place. There have now been psychiatric examinations of each of the parties. There has also been an extended process of supervised time between the father and X.
It is the mother’s position, at this stage, that she is doubtful about Dr B’s report, on the basis that she does not believe that the psychiatrist was provided with sufficient information about the earlier diagnosis of borderline personality disorder of the father. Essentially, therefore, she takes no great comfort from Dr B’s report.
I note that, as far as I know, no subpoenae have been issued in respect of any involvement that the father has had with the mental health system and, although each party asserts that the other was violent and harassing towards the other, during their relationship and afterwards, there is no evidence from any independent source, such as the police, to support each of the allegations in this matter.
It is also the mother’s position that she has concerns about the various reports from the contact centre, which she says demonstrates a significant lack of parenting skills on the father’s part. Essentially, what she says is that it is a nonsense for the court to consider extending X’s time with his father, bearing in mind that there was no relationship whatsoever between X and his father for the first portion of the child’s life.
As a consequence of this lack of relationship, she asserts that it is plainly idiotic to think that there can be much of a relationship, between father and child after twelve visits, regularly spaced, of one hour in duration. In these circumstances, she urges that the court take a gradual and incremental approach.
In this regard she proposes that the parties utilise Kids Connect, which is a service related to the children’s contact services, run by Relationships Australia throughout the suburbs of Adelaide. I have been provided with information about the program.
It is said to facilitate a gradual and systematic transition, for families who have successfully participated in a regime of individual supervised contact visits and are deemed suitable for less vigilant supervision in a monitored group setting.
It is, essentially, a playgroup, with music therapy, that is aimed to assist children from around six months to five years to develop motor skills, sensory development and language skills. So it is a group play session. How many presumably fathers and children, for the most part, will take part in it is unclear to me. How long they go is unclear to me, but it is envisaged that there would be eight sessions.
From the father’s perspective, the time is now right for him to have unsupervised daytime with X. The mother’s case, I think, is predicated on her contention that there is a significant risk X will come to harm, in an unsupervised setting, because of Mr Stirling’s psychiatric condition and because of his lack of parenting skills.
She characterises X as a vulnerable child by virtue, not only of his age, but also because of his lack of familiarity with his father, and necessarily the difficulties that will present for the child in moving his relationship forward.
So this is a case about risk. Is the risk, as the mother categorises it, one which is too great for the court to take in the circumstances of this case. I asked Mr Hemsley to, if he could, particularise what the risk was.
In this context, Mr Hemsley asked me, hypothetically, what if Mr Stirling has a panic attack. It being the case that Mr Stirling acknowledges that he has had a panic attack.
What would happen to X if, for whatever reason, there was such a panic attack, particularly if Mr Stirling became frustrated because X was highly distressed and he (Mr Stirling) could not cope with it. What if that brought on a panic attack and Mr Stirling, for whatever reason, lost his cool, shut down, lost his temper, and something happened to X.
I do not have a crystal ball and I cannot foresee the future. Risk is everywhere. There is a risk that, when I cross the road, I may be run over by a tram, but if I cross the road at the lights and go on the walk sign, the risk is reduced. If I cross the road, after having drunk half a bottle of whisky, with a blindfold on, at the busiest of time of the day, the risk is an exceptionally significant one and I would be ill-advised to take it.
Some risks are manageable and worth taking, if proper precautions are taking. Some are not. The court must look at any risk raised objectively. Accordingly it is my role, I think, to attempt to quantify the risk, and put in place a response which is proportionate to the degree of risk arising.
For obvious reasons, I think, Ms Dodd is not likely to be the best placed person to objectively approach the question of risk. I mean her no disrespect, but she is likely to see risk in everything associated with Mr Stirling. But risk cuts both ways.
From the father’s point of view, if at this significant part of X’s development, the child is deprived of having a proper level of relationship with his father, there may be the risk that X will be deprived of his entitlement to have a comfortable, warm and intimate relationship with his father, as he grows older.
The underpinning, I think, of Mr Stirling’s case is that these years of early childhood are precious, not only for X and for Ms Dodd, but for him as well. It is in these early years of childhood that parental bonds are established. It is at this early stage that intimacy and trust develop.
At this stage, given the polarised position of the parties, it seemed to me that there would be a need for the next phase of X’s interaction with his father to be subject to some form of supervision. The question is whether that should be professionally supervised or that the supervision should be provided by some lay person, which provided more flexibility and perhaps could occur in a less institutionalised and more spontaneous setting.
In a case such as this one, there is a significant lack of honest brokers, who are able to straddle both camps. The mother is not able to suggest anyone apart from Kids Connect. At this stage, there is an unbridgeable dichotomy between the maternal and the paternal aspects of X’s family.
It has now taken me somewhere close to fifty five minutes to deliver these reasons for judgment. I apologise for that, but I have to deliver them, not having had a great deal of time to prepare them. The irony is that sometimes, if one has more time to prepare reasons, they can be more succinct, but if one is short of time they become longer.
But to a significant degree the reasons have taken some time to deliver because these proceedings have been rigorously contested. Mr Hemsley, a very experienced barrister, I think, has put every conceivable submission that can be made in support of his client’s position.
I am aware of the moment of the decision, not only from Mr Stirling’s point of view, but most certainly from the mother’s point of view. I accept that she is trepidatious about Mr Stirling interacting with X in any place other than in a setting that is rigorously and professionally supervised.
However, I do not have any evidence to indicate that she is a particularly emotionally vulnerable person, who will not be able to cope with an outcome other than the one of her preference. In essence, I am unable to determine whether she has the natural anxieties of any person in her situation or whether she is to be categorised as a person who is hyper-anxious and that hyper-anxiety will, of itself, reverberate for X.
In this context, I elected to hear some evidence from Mr R, to see if he could be a person who could bring the matter a little further along. At the start of these proceedings which, as I say, were very emotionally charged, Mr R wanted to make a speech to me. This is a court. It is not a place for the making of impassioned speeches by interested persons. That is the role of barristers.
Anyway, it was obvious to me that Mr R was involved, very much, in the matter and of my own volition I took some evidence from him. He has been married for thirty five years. He runs a business, (omitted) in (omitted). His wife is Ms C. She does the books for his business. Besides Mr R, he has two other male children, who are both now adults.
As a consequence of that, he has two grandchildren – A who is three and a half, and B who is two years. It is his evidence that he and his wife care for A and B for the day on Tuesday, and on Thursday they have just B.
As was appropriate, Mr R was cross-examined by Mr Hemsley, and he was rigorously cross-examined, I think, and it was the submission of Mr Hemsley that Mr R was a person in whom I could place no confidence.
That was not my view of him. I found Mr R to be an impressive person. It was his evidence, which I accept, that he and his wife have considerable experience over many years in managing the needs of children of X’s age. It was Mr R’s evidence that his home is a large and comfortable one which, because of his need to care for A and B, is well set up with toys and things that children need.
In my assessment, Mr R exhibited some insight and understanding of the dilemma which this case will present. X will be coming into an environment with which he is unfamiliar. Ms Dodd is likely to be anxious and suspicious. The child will, perhaps, pick up on that. He will be distressed, in turn. That situation necessarily will create difficulties.
Mr R conceded that it was highly probable that X will become distressed. He indicated his view, which I acknowledge must be a hypothetical one, that he would be able, in conjunction with his wife, to manage that distress.

However, he also indicated that if the distress was so severe that the only thing which could happen, to ensure X’s welfare, was that he would contact Ms Dodd and an arrangement would have to be made for her to come and collect the child.
In a previous career, admittedly many years ago, Mr R was an (occupation omitted). He indicated that he has had experience of treating people with anxiety or panic attacks. Mr Hemsley asserted that Mr R had gilded the lily about his (occupation omitted) experience. I do not accept that that was the case. In my assessment, Mr R and his wife would be able to supervise the time appropriately and adequately.
However, the question remains, is it better to be more prudent, at this stage and to put in yet another step for X of professionally supervised time, albeit more relaxed in nature, with which the mother will have some confidence. Or should the focus be on moving a little faster than that, even though it is envisaged that the next step will be incremental and gradual at this stage.
In all matters regarding contact arrangements for a young child there must necessarily be some experimental component. There must always come a point where there must be some metaphorical leap into the dark, when the court, in order to discharge its requirements under the legislation, must move somewhat experimentally.

The legal principles applicable

I now turn to the legal principles which I must apply to this matter. Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage.
In deciding to make any particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration.
The matters which the court must take into account in deciding how a child’s best interests are to be served are specifically set out in section 60CC. These considerations are to be interpreted in the light of the principles and objects of the Act, pertaining to children, to which I have already alluded, contained at section 60B.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it - primary considerations and additional considerations. There are two primary considerations which are set out in section 60CC(2)(a) & (b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. However, as a result of the insertions 60CC(2)(a) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to the consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Other specific criteria relating to how the court is directed to consider how the best interests of any child concerned are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any fact or circumstance which it considers relevant. This is to ensure that the infinite variety of any individual child circumstances may be addressed in any order which the court makes. The court’s duty is to deliver individualised justice for the child affected in every case, bearing in mind that child’s idiosyncratic best interests.
Given the importance which the applicable legislation places on the co-involvement, of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her. That appears in section 61DA.
However, that presumption can be rebutted. In a case such as this one, where there are allegations mutually made of family violence it is, I think, clear that the presumption should not be applied, particularly at this interim stage, where it really is not practicable. On that basis, I am not obliged to consider the child spending either equal periods of time, or significant periods of time with each of his parents.
As I say, I am directed to give close consideration, indeed - primary consideration - to the need to protect X from coming to physical or psychological harm as a result of being subjected to abuse, neglect or family violence. In my assessment, if the parties are quarantined from one another, the possibility of X being exposed to family violence is a remote one. As far as I know, the parties have no recent criticisms of the other’s behaviour, since these proceedings commenced. That is because they simply have had nothing to do with one another.
In terms of the risk of X being injured through abuse or neglect, whilst he is interacting with his father, I think these risks become manageable if there is some process of supervision. I think the risk of X coming to harm in the home of his grandparents, whilst he interacts with his father, is not a significant one, certainly not one which entails an unacceptable level of risk.
I acknowledge there may be some risk. Clearly, Mr Stirling is not an experienced parent – that is a necessary implication of the parties’ relationship with one another. X is Mr Stirling’s first child. He has been excluded, largely, from the child’s life.
Necessarily, he has not had the opportunity to learn parenting skills in an organic or holistic manner, as he goes along, in tandem with Ms Dodd. Rather, he has been exposed to X in the somewhat institutionalised and, necessarily, stilted environment of a children’s contact centre.
It is, I think, in that context that I have to consider the benefit of X having a meaningful relationship with his father and, as I say, the rationale of the legislation places considerable emphasis on such matters.
Meaning in relationships, I think, between parent and child, comes through the two being able to interact with one another in a variety of settings and contexts. Meaning will be added to the relationship if Mr Stirling is able to take more responsibility for X. If he is able to interact with X in an environment in which he is comfortable and in which, perhaps, X and he can remain focused on one another
The people who operate children’s contact centres are providing a wonderful and essential service. Regrettably, in this day and age, there are many parents who must be subject to close scrutiny when they interact with their child or children. That is a consequence of many factors, most usually drug abuse, alcoholism or severe psychiatric illness or allegations of sexual abuse.
The calls on contact centres are significant. There are simply not enough places to go around and, necessarily, there is a waiting list to get into them, and when families are accepted, there are limits in how long they can remain in the program. The time of supervision is also limited. Necessarily, there has to be a time when the parties, or the family, move on.
Clearly, that is the point now. There is a need for the parties to move on after what is – what has been – double the usual number of supervised visits. Rigorously supervised time cannot be the norm in the majority of cases. It is usually a temporary expedient.
In terms of additional considerations, I accept that X’s most significant relationship is with his mother. How could it be otherwise? On any view, X’s relationship with his father is in its very early stages. It has, however, it would seem, great potential to grow and that is also the case in terms of his relationship with his paternal grandparents.
One of the aspects of Mr R’s evidence which struck me was, of course, his obvious interest and desire to know X whom he loves, I think, although he has never met X at all. For obvious reasons, grandparents want to have a relationship with their grandchildren and it is important, I think, to any child, that if possible he has a relationship with grandparents who, as is the case with parents, are likely to be a source of unconditional love.
In assessing what is the next step to take, I have to assess how X will react to any change in his circumstances. That is difficult to know and, obviously from the mother’s point of view, for X to visit his father at Mr Stirling and Ms C’s home, is a significant change. For that reason the change has to be carefully monitored.
I have to make some sort of assessment of the capacity of each of the parents to provide for X’s needs, including his emotional and intellectual needs. As I say the mother is highly critical of Mr Stirling, I think, in this regard.
However in my assessment, Mr Stirling has committed to the process of supervised time and it has gone relatively well. I accept, however, that Mr Stirling has much to learn. It seems to me that there are some benefits in him advancing his parenting skills, under the supervision of his mother and father. That has the appeal, I think, to me as being a natural, supportive and holistic way to advance matters.
I give close consideration to matters of family violence. I note, however, that there are no family violence orders applicable in this matter.
Having, I hope, carefully considered the various permutations in this matter; I have come to the view that it would be a backward step, at this stage, for me to impose a further period of supervised time between X and his father, albeit in a process where the supervision is relaxed and less vigilant than that which initially occurred.
I think the time has been reached, where there should be more emphasis on X developing a meaningful level of relationship with his father.
As, I hope, these somewhat lengthy reasons for judgment have indicated, that process is not likely to be without its pitfalls and difficulties, not the least of which is Ms Dodd’s willingness to support it, both with her heart and her mind.
One of the things I am required to consider is the attitude that each party has displayed to the responsibilities of being a parent. Part of the responsibilities of being a parent is to encourage and support a relationship between the child concerned and the other parent.
All children, indeed all individuals, gain a sense of their identity – who they are – as they grow, from interacting with their biological progenitors, both paternal and maternal. That is fundamental and part of the underpinning of the Act. So whether the mother approves of my orders or not, it is her responsibility to support them, and do what she can to minimise any distress which X is likely to display.
My overall impression of Mr R is that he is not the sort of person who would want X to be unduly traumatised. He struck me as a sensitive person. Perhaps that is a character trait he shares with his son. I do not know. But from my perspective, Mr R is an appropriate person to supervise the time and his home is an appropriate locale for it.
However, it is still appropriate that the court proceeds cautiously, incrementally and gradually. That is the best possibility of there being a firm base on which to progress X’s relationship in the longer term and also, I hope, to minimise the suspicion and mistrust between the parties.
In my view the best place for the parties to exchange X would be at a children’s contact centre. That would be better than a police station, it would be better than a McDonalds Restaurant or other public place. A children’s contact centre would assist X to separate from his mother and transition more easily to his father. I will make an order to that effect.
It is also, I think, necessary for the parties to begin at least some formal process of exchanging information about X, one to the other. Although, emotionally it may be Ms Dodd’s preference that Mr Stirling fall by the wayside in X’s life, that is not likely to happen. Accordingly, X will, to some degree, have to move between his parents’ households.
At this stage it is, I think, important that the parties give some thought to how they are going to manage this process – how they are going to better communicate with one another and improve their communication skills with one another. In this regard, I think, Mr R has the potential to be an honest broker.
It is, I think, a proportionate response to the concerns that the mother has raised, that there be an injunction restraining Mr Stirling from consuming alcohol, whilst X is in his care. I am also going to require that Mr R contact Ms Dodd, by telephone, in the event that X becomes unduly distressed, so appropriate arrangements can be made.
What I have in mind, at this stage, is a very modest proposal for daytime contact, starting with a period of three hours, which will incrementally increase over the weeks to come. I think that is a response which is commensurate with the child’s best interests as I have attempted to delineate them.
I will also order that, in concert with this approach, that there be a family report prepared so that when the next step is to be taken, which I envisage will be in about six months’ time, there will be some further evidence available.
For these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 6 June 2014

[2014] FCCA 1357

6 June 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies