Stopford Malloy and Malloy (No 2)

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 2)

[2016] FamCA 722

FAMILY LAW – CHILDREN – interim orders – where the mother seeks an order that the father’s time with the child be supervised at a contact service – where the father opposes the order and seeks private supervision – where consideration is given to the principles relevant to interim parenting proceedings – where orders are made in favour of the wife – where an Independent Children’s Lawyer is appointed.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Stopford Malloy

RESPONDENT:

Mr Malloy

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

29 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

27 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Piper Alderman

COUNSEL FOR THE RESPONDENT:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

UNTIL FURTHER ORDER THAT

The mother do have the sole parental responsibility for the child C born on the … 2014 (“the child”).
The child live with the mother.
Paragraph 7 of the orders dated 19 October 2015 is varied to read:
(a)within seven [7] days the parties do all things necessary to register with the Suburb G Children’s Contact Centre;
(b)after acceptance into the Suburb G Children’s Contact Centre the father spend time with the child as follows:
(i)each alternate weekend being for a period of up to two [2] hours in the morning and on alternate Saturday or Sunday, at such times as the Director of the Suburb G Children’s Contact Centre may determine;
(ii)under the supervision of the Suburb G Children’s Contact Centre supervisors UPON CONDITION that the father meet any costs involved;
(iii)following the sixth two-hour supervised session that the Children’s Contact Centre supervisor is requested to provide a report to this Court such report to be paid for by the father;

IT IS FURTHER ORDERED THAT

Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the infant child C born on the … 2014 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven [7] days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party in these proceedings.

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 Stopford Malloy & Malloy (No 2) 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 ADELAIDE

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Application in a Case filed 22 July 2016 Ms Stopford Malloy (“the mother”) seeks interim orders in relation to the child B born in 2014 (“the child”). The mother seeks a variation of the orders dated 19 October 2015. Her application is particularised as follows:-
That Order 7 of the Order of Her Honour Justice Dawe dated 19 October be varied as follows by deleting paragraph 7 therefrom and inserting in lieu thereof:
7.Until further order the child spend time with the father as follows:
7.1    on one occasion each fortnight;
7.2    for the period of up to two-hours commencing between 10:30 am and 12:15 pm on Saturday or Sunday, or at such other times as the Director of the Suburb G Children’s Contact Centre may determine;
7.3    under the supervision of the Suburb G Children’s Contact Centre Supervisors upon the condition that the Husband meet any costs involved;
7.4    That the parties do all things necessary to register within 7 days of this Order with the Suburb G Children’s Contact Centre;
7.5    that following the initial two-hour supervised session, that the Children’s Contact Centre Supervisor be jointly requested to provide a report to this Honourable Court, such report to be paid for by the Husband; and
7.6    that following the sixth two-hour supervised session, that the Children’s Contact Centre Supervisor be jointly requested to provide a report to this Honourable Court, such report to be paid for by the Husband.
The mother seeks that paragraph 7 of the orders dated 19 October 2015 otherwise remain unchanged. In her affidavit filed 22 July 2016 the mother says her amendment to the original Application in a Case filed 21 March 2016 better reflects the actual hours that are available for supervised contact at the contact centre. The mother has been advised that the contact centre is able to provide fortnightly supervised morning sessions on a Saturday or Sunday between 10.30 am and 12.15 pm.
By Amended Response to an Application in a Case filed 19 July 2016 Mr Malloy (“the father”) opposes the orders sought by the mother. He also seeks a variation of paragraph 7 of the orders dated 19 October 2015, however it is his position that his time with the child should be subject to the supervision of Mr H, psychologist for two hours each week. He further seeks that upon the parties’ acceptance into either the Town I, Suburb J or Suburb G Children’s Contact Service then the child spend time with the father for two hours each alternate fortnight or per week and in each intervening week as supervised by Mr H. Upon completion of six supervised visits the father seeks a report and from thereafter his time with the child to be unsupervised for two hours each Saturday and for two hours each Wednesday. He seeks further orders for shared parental responsibility, communication between the father and child and various injunctions.

Background

The mother was born in 1981 and was aged 35 at the time of the hearing. She has been employed in the media. The father was born in 1969 and was aged 46 at the time of the hearing. He is employed as an advisor to the Malloy Group.
The parties met in June 2010, commenced cohabitation in March 2011, married in 2013 and separated in May 2015. The child, now aged 22 months, is the child of the relationship.
The proceedings were commenced in July 2015. The parties reconciled in November 2015 but separated for a second time on 22 January 2016. Legal proceedings were then resumed.
The father has one child of a previous relationship, K born in 2006. K has relocated with her mother to New South Wales but spends holiday time with the father.
Initially after separation the father spent no time with the child. Subsequently he spent some time with the child but never without supervision. Of recent date the father has not had face to face contact with the child apart from an observed interaction for the purpose of the Family Assessment Report on 23 March 2016.
The mother’s primary concern is the child’s vulnerable age and the father’s limited parenting experience and lack of interaction with the child post separation. She is also concerned about the father’s inability to regulate his anger and his lack of mindfulness (which she alleges resulted in him dropping the child at aged 14 months).
The parties reached agreement and interim orders were made by consent on 19 October 2015. Paragraph 7 is the disputed issue and the subject of these further interim proceedings. It provides as follows:

7. Until further order the child spend time with the father as follows:

7.1. on two [2] occasions each week;

7.2. from 9.30 am to 12.30 pm on Thursday and Saturday or at such other times as agreed between the parties in writing between their solicitors commencing Thursday;

7.3. under the supervision of [Ms D] upon the condition that the husband meet [Ms D’s] costs;

7.4. at the [Suburb E] property and then thereafter at such place as the parties agree in writing between their solicitors;

7.5. it be a condition of such time that unless the wife otherwise agrees in writing through her solicitor that the husband shall not bathe or swim or drive with the child unless properly and legally restrained and the child not attend upon husband’s mother;

The day after the hearing on 19 October 2015 the mother’s solicitor advised the father that Ms D was no longer prepared to supervise.
On 22 May 2016 Ms F, Family Consultant, provided a Family Assessment Report following the order of Registrar Paxton dated 19 October 2015. It is Ms F’s recommendation that the parties share parental responsibility, that the child live with the mother and that the father be permitted to contact the child via Skype or Facetime for half an hour three times each week. She does not support the father spending any time with the child other than time supervised at a contact centre. She recommends that the father undergo an independent psychiatric assessment and participate in parenting and anger management courses before consideration is given to him spending time with the child.
The father takes issue with many aspects of the Family Assessment Report and does not agree with the recommendations. The wife pursues her application for the father to spend supervised time with the child at the Suburb G Children’s Contact Centre on one occasion each fortnight for two hours.

Legal principles

Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that the best interests of the child are the paramount consideration. I have taken into account the authority of Goode & Goode (2006) FLC 93-286 and in particular the consideration I must give to the provisions of the Act, in particular s 60B and s 60CC.
I have paid particular regard to the primary considerations under s 60CC(2) namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm. I have also had regard to the additional considerations under s 60CC(3).
Section 65DAA(1) provides:
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Discussion and findings

Both parties relied upon a large amount of affidavit material. There was substantial disagreement about some factors, including the attitude of the parties and the father’s parenting capacity. At an interim hearing the Court is unable to determine the disputed facts.
Of significance in this matter is the Family Assessment Report prepared by the Child and Family Consultant, Ms F, following the orders of 19 October 2015. The report, which is dated 22 May 2016, was prepared following the consultant’s consideration of substantial amount of affidavit material upon the file and significant observations of the child and the parties and information from other relevant persons.
Some of the parenting orders proposed suggested that the parties have equal shared parental responsibility. It is necessary for the Court to consider whether such an order should be continued. The submissions on behalf of the mother at the hearing before me on 27 July 2016 sought that the mother have sole parental responsibility. The father’s counsel continued to request on behalf of the father that the parties have equal shared parental responsibility.
The recommendations on the last page of the Family Consultant’s report include a recommendation that the parents have equal shared parental responsibility. However, this must be seen in the context of earlier parts of the report which refer to the ongoing difficulties and the substantial differences in the allegations made by the parties about the other’s behaviour. The report contains the following:
116.In regards to the allegations of domestic violence it is the report writer’s assessment that there is sufficient evidence to support the mother’s claims. SA Police subpoenaed Incident Reports provide a history that indicate the father has extremely poor impulse control, makes threats to harm, and intimidates using his families’ (sic) reported power and influence. Whilst a number of these alleged incidents are historical, two are against family members; [Ms L] in 2007, and an alleged physical assault on his sister in 2014. Further, [Mr Malloy’s] dysregulated anger is reportedly supported by SA Police patrols who attended to avoid a breach of peace. [SC Y’s] statements to the report writer further indicate that SA Police have had numerous similar incidents where [Mr Malloy] considers himself above the law.
117.It is noteworthy that despite Ms (sic) [Malloy’s] emphatic denials of domestic violence with [Ms Stopford Malloy] he acknowledged having problems with his anger and aggression in a document signed by him in December 2015. He then informed the report writer that there was no substance to the statements and agreements made in that document despite him signing it. He argued (sic) and that he only signed the document to save his marriage. If this is the case, it further supports the mother’s claims of coercive and controlling violence in that demonstrates manipulative behaviour to control another person and have her return to him without any truth to his promises. While [Mr Malloy] did attend with psychologist [Mr M] for counselling after this he failed to mention domestic violence in these sessions.
118.Further, two psychologists with considerable experience met, interviewed and observed the parents and both assessed significant risk. [Dr N] assessed that due to [Mr Malloy] having difficulty regulating his anger, having poor impulse control and insight the child was at risk alone with his father until much older. [Ms O] assessed risk due to the intensity of the parents’ presentation. Of further note, SA Police records and [Dr N’s] intervention over a lengthy period support [Ms Stopford Malloy’s] claims that domestic violence was a feature of father’s relationship with [Ms L].
119.The parents’ individual presentations in the Family Assessment interviews were consistent throughout the process and supported the mother’s claims of domestic violence and ongoing risk to the child in the father’s care. Ms [Stopford] (sic) was observed to be child focussed, while stressed and concerned for her own and the child’s safety. Her levels of anxiety presented as high and were reportedly based on her experiences of [Mr Malloy] and the alleged threats. Ms [Stopford’s] (sic) explanation in regard to her interaction with staff at the [P Hospital] were detailed and under the circumstances of it being her first birth and her being highly anxious are assessed as credible.
120.[Mr Malloy’s] presentation was consistent with a cluster of behaviours associated with personality pathology of some kind. A diagnosis of this kind is beyond the report writer’s expertise and the Court may wish to consider a psychiatric assessment. It was the report writer’s observations as a social scientist that [Mr Malloy] was primarily focused on the impact the Family Assessment process had on him, he frequently drew the report writer’s attention to how important he and his father were, and reported the marriage ended due to [Ms Stopford Malloy] neglecting his needs this was despite the difficult circumstances she experienced post the child’s birth. This presentation raises concerns in regards to [Mr Malloy’s] capacity to parent a small child where patience, empathy and impulse regulation are crucial.”
Taking into account the allegations made by each of the parents about the other’s behaviour and attitude I am not satisfied that at this interim stage equal shared parental responsibility is in the child’s best interests. Rather, I am satisfied that it is in the child’s best interests that pending determination of the matter by way of final trial, the mother have sole parental responsibility for the child.
It is therefore not necessary to consider the child spending equal time with each of the parents or substantial and significant time.
In any event even if the decision were to be that the parents have equal shared parental responsibility it is clearly not in the child’s best interests, nor is it reasonably practicable for him to spend equal time or substantial and significant time with the father at this stage.
The provisions of s 60CC of the Act set out the primary considerations when determining what is in the child’s best interests. These are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. A greater weight is to be given to the need to protect the child from physical or psychological harm (s 60CC(2A)). As indicated in the affidavit material on file the mother expresses concern about the injuries caused to the child whilst in the father’s care which resulted in the child being hospitalised with a fracture in his skull. The father denies being responsible for this injury. This matter needs to be seen in the context of the consent orders which were made on 19 October 2015 which provided for the father to have supervised time with the child on two occasions each week. (These occasions did not occur as the supervisor withdrew her consent).
Subsequently, the parties reconciled for a brief period.
The mother’s affidavit material on file supports the child maintaining a relationship with the father provided supervision is in place and the father takes other steps which would assure the mother that the child is protected.
The mother is now seeking to reduce the time in the consent orders and require that the supervision be at a Children’s Contact Centre.
It is not appropriate to consider any views expressed by the child due to his young age.
It is accepted that the child’s main relationship is with the mother. The father has spent limited time with the child since the parties’ first separation in May 2015 when the child was very young. Due to the parties separation the child does not have a relationship of any significance with other members of the father’s family.
Section 60CC(3)(c) refers to the extent the parents have taken or failed to take the opportunity to participate in decision making, spending time with the child and communicating with the child. I take into account that the litigation between the parties has been ongoing since the child was very young. During that time the father has sought to have equal shared parental responsibility and to spend considerable time with the child and communicate with the child.

The Court is also required to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child. The mother complains that the father is not meeting his responsibilities in relation to financial support of herself and the child. I accept that there is considerable dispute between the mother and father concerning financial matters. This is not a significant factor in determining on an interim basis the best interests of the child.
It is also necessary to consider the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either of his parents. Taking into account the very young age of the child, his specific needs and the father’s past limited time with the child, I am satisfied that this is a significant factor. The child’s relationship with the mother, who is his primary caregiver, would be disrupted whilst he spends time with his father.
When considering the practical difficulty and expense of the child spending time with and communicating with the father I am satisfied that the father has significant financial means. The father will be able to pay for any private independent supervisor or the contact service supervisors. The practical difficulty does become relevant when relating to the travel requirements, taking into account the child’s special needs and young age. I accept the mother’s concern that travelling to the Suburb J Children’s Contact Centre or the Town I Children’s Contact Centre would not be practical nor in the best interests of the child. The Suburb G Children’s Contact Centre however, is promoted by both parties and is likely to be more practical for both parties and the child.
The capacity of each of the child’s parents to provide for the needs of the child including the emotional and intellectual needs must be considered. The Family Assessment Report made significant recommendations about the father undertaking an independent psychiatric assessment, an eight week parenting course and an anger management course. The report also recommended that both parents complete the Kids-Are-First programme. The evidence from the father indicated that he had taken steps to enrol in the various recommended courses.
The father’s capacity to provide for the child’s needs is limited due to the father’s lack of involvement with the child and due to the special needs of the child in relation to sleep issues, mild speech delay and the fact that he is still being breastfed by the mother.
I have also taken into account the psychologist’s reports about the father’s past conduct, including the reports referred to by Ms F which indicate that psychologists in the past have noted the father’s poor impulse control, lack of insight and empathy and his aggression.
I am satisfied that the mother has had, and continues to have, the appropriate capacity to provide for the child’s needs, including his emotional, psychological and intellectual needs.
Section 60CC(3)(g) refers to the maturity, sex, lifestyle and background of the child and the parents and any characteristics of the child that the Court thinks are relevant. The child is young and has had ongoing close relationship with the mother, but limited relationship with the father.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i) refers to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. Many issues in relation to this matter are yet to be determined, however, I accept that the mother has shown a protective attitude towards the child and has carried out her responsibilities as a mother. The father has sought to be involved in the child’s life and has demonstrated a keen interest in spending time with the child.
Section 60CC(3)(j) refers to any family violence involving the child or a member of the child’s family. The mother has made allegations of family violence by the father, of the “intimidating, controlling type”. She also alleges physical assault by the father. The father denies these allegations.
The Court is not yet in a position to determine the truth of the disputed allegations. I do take into account however the significant issues raised in the Family Consultant’s report concerning the alleged coercive and controlling relationship by the father towards the mother and the allegation that police reports included reference to the father behaving in a “very aggressive manner” (see page 98 of the Family Consultant’s report).
As previously mentioned on page 45 of the Family Consultant’s report, paragraphs 117, 118 and 119 state:
117.It is noteworthy that despite Ms (sic) [Malloy’s] emphatic denials of domestic violence with [Ms Stopford Malloy] he acknowledged having problems with his anger and aggression in a document signed by him in December 2015. He then informed the report writer that there was no substance to the statements and agreements made in that document despite him signing it. He argued (sic) and that he only signed the document to save his marriage. If this is the case, it further supports the mother’s claims of coercive and controlling violence in that demonstrates manipulative behaviour to control another person and have her return to him without any truth to his promises. While [Mr Malloy] did attend with psychologist [Mr M] for counselling after this he failed to mention domestic violence in these sessions.
118.Further, two psychologists with considerable experience met, interviewed and observed the parents and both assessed significant risk. [Dr N] assessed that due to [Mr Malloy] having difficulty regulating his anger, having poor impulse control and insight the child was at risk alone with his father until much older. [Ms O] assessed risk due to the intensity of the parents’ presentation. Of further note, SA Police records and [Dr N] intervention over a lengthy period support [Ms Stopford Malloy’s] claims that domestic violence was a feature of father’s relationship with [Ms L].
119.The parents’ individual presentations in the Family Assessment interviews were consistent throughout the process and supported the mother’s claims of domestic violence and ongoing risk to the child in the father’s care. Ms [Stopford] (sic) was observed to be child focussed, while stressed and concerned for her own and the child’s safety. Her levels of anxiety presented as high and were reportedly based on her experiences of [Mr Malloy] and the alleged threats. [Ms Stopford’s] (sic) explanation in regard to her interaction with staff at the [P Hospital] were detailed and under the circumstances of it being her first birth and her being highly anxious are assessed as credible.”
(Emphasis added)
The allegations of the mother and her alleged concerns make it necessary to consider carefully the past behaviour of the father when making an interim order concerning the very young child.
Section 60CC(3)(k) is not relevant.
Section 60CC(3)(l) refers to whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. These will be interim orders and therefore it is not necessary to consider this factor as significant at this interim stage.
Section 60CC(3)(m) refers to any other factor or circumstance that the Court thinks is relevant. The mother has concerns about the father’s time with the child being supervised by Mr H. I consider that the Children’s Contact Centre is more appropriate at this stage. This is not because of Mr H’s qualifications or any issue concerning his independence but rather the Children’s Contact Centre will provide an appropriate location for the father whilst providing the capacity for suitable intervention to protect the child’s needs if necessary.
Although there may be further delay in making arrangements for the Children’s Contact Centre this delay will be offset by the benefit to the child and parties of the available facilities at the Children’s Contact Centre.

Conclusion

In determining what is in the best interest of the child on an interim basis it is necessary to give significant consideration to the young age of the child, his special needs, the history of the relationship between the parties, the capacity and attitude of each of the parents.
After giving careful consideration to the background to the relationship between the parties and each of the parties and the child, the young age of the child and the child’s special needs I am satisfied that the gradual introduction of a relationship between the child and the father is necessary and in the child’s best interests.
As previously indicated I consider that it is in the child’s best interests for the mother to have sole parental responsibility. The father does not oppose an order that the child reside primarily with the mother.
The Family Assessment Report recommended that an Independent Children’s Lawyer be appointed. Taking into account the ongoing difficulties between the parties and the needs of the child, I am satisfied that the appointment of an Independent Children’s Lawyer is appropriate.
The Family Consultant also recommended that the father obtain various reports, including an independent psychiatric assessment and that he attend parenting course and anger management course. The father indicated that he had made arrangements to follow these recommendations (including the Kids-Are-First programme).
When considering the time the child should spend with the father I take into account the mother’s serious concerns about the father’s capacity and the concerns raised by the Family Consultant as to his attitude and capacity. I also take into account the child’s young age and currently limited relationship with the father.
I therefore consider that the recommendation of the Family Consultant that the father spend supervised time at a Children’s Contact Centre is in the best interests of the child.
The orders will therefore provide that the parties register with the Suburb G Children’s Contact Centre and following such acceptance the father spend supervised time at the Suburb G Children’s Contact Centre for a period of up to two hours on a Saturday or Sunday morning each alternate weekend.
If the parties arrange communication by Skype occasionally that may assist the child to develop a relationship with the father.
Taking into account the young age of the child I do not consider that an order requiring regular communication between the child and the father by Skype or Facetime would be in the best interests of the child.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 August 2016

Associate:

Date: 29 August 2016

[2016] FamCA 722

29 August 2016

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