Veitch and Anor and Black

[2015] FCCA 3313

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEITCH & ANOR & BLACK [2015] FCCA 3313

Catchwords:
FAMILY LAW – Application by maternal grandparents to spend time with child aged 2 – mother of child recently deceased – father opposes any time – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.4A(b); 60B; 60C; 60CC; 65C

Bright v Bright (1995) FLC 92-570
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
N & S and the Separate Representative (1996) FLC 92-655

First Applicant: MR VEITCH

Second Applicant: MS VEITCH

Respondent: MR BLACK

File Number: ADC 2313 of 2015

Judgment of: Judge Brown

Hearing date: 6 November 2015

Date of Last Submission: 6 November 2015

Delivered at: Adelaide

Delivered on: 6 November 2015

REPRESENTATION

Counsel for the Applicant: Ms Fuda

Solicitors for the Applicant: Angela Ferdinandy Solicitor

Counsel for the Respondent: Ms Dorling

Solicitors for the Respondent: Adelaide Lawyers

ORDERS

1. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship X born (omitted) 2013 attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the 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 11 March 2016.

2. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)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;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

3. 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 Dispute Resolution Coordinator, Federal Circuit Court of Australia.

4. 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.

5. 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

NOTING:

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.

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. Further consideration of the matter is adjourned to 24 March 2016 at 9.30 am for directions.

UNTIL FURTHER OR OTHER ORDERS THE COURT ORDERS THAT:

1. The child X born (omitted) 2013 live with the father.

2. The child spend time with the maternal grandparents as follows:

   (a)From 7.00 am on the Monday of each week until 5.00 pm the following Tuesday commencing 16 November 2015;

   (b)From 12.00 midday until 5.00 pm on 24 December 2015.

3. The child be exchanged between the parties to give effect to these orders at Hungry Jacks, (omitted).

4. The handovers be effected by the father and maternal grandfather who are each restrained and an injunction issue from attending at the handover with any other adult person.

5. Each party be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so.

6. Each party be restrained and an injunction is hereby granted restraining them discussing these proceedings in the presence or hearing of the child or from permitting any other person to do so.

7. Each party advise the other of any medical emergency or accident involving the child forthwith.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2313 of 2015

MR VEITCH

First Applicant

MS VEITCH

Second Applicant

And

MR BLACK

Respondent

REASONS FOR JUDGMENT

1. This is a sad and perplexing case.  It concerns interim or provisional arrangements for the care of a young child, X, who was born on (omitted) 2013.  Primarily, what time, if any, he should spend with his maternal grandparents, Mr Veitch and Ms Veitch. 

2. X’s father, Mr Black, is vehemently opposed to the grandparents spending any time whatsoever with X.  He asserts that they are malicious and interfering individuals who pose a risk to X, who is an emotionally vulnerable child. 

3. The major reason that this is a tragic case is that X has recently lost his mother, Ms B.  She died as a consequence of a brain tumour on (omitted) 2015.  Sadly, as will become apparent as these reasons for judgment unfold, the paternal and maternal aspects of X’s family are divided. 

4. It is the grandparents’ position that they have been significantly involved in X’s life, since he was a small baby.  Given these circumstances and the death of his mother, they assert that it is all the more important that X remains in contact with his maternal family, particularly his maternal grandparents.

5. The proceedings began on 25 June 2015, when the mother was alive.  At this stage the late Ms B “Ms B” ostensibly sought a recovery order seeking the delivery of X to her care.  At this stage she was living with her parents in (omitted), in suburban Adelaide. 

6. Mr Veitch arranged for Ms B to see a solicitor, Ms Boylan.  Ms Boylan filed the application on Ms B’s behalf and witnessed her affidavit which was filed in the court on 25 June 2015.  Ms B signed the affidavit with a cross.  At the same time Mr Veitch indicated his willingness to be Ms B’s litigation guardian.  It was clear at this time that Ms B was very unwell indeed and did not have long to live.

7. Ms B’s affidavit is very critical of the father.  In her affidavit she deposed that she and the father had been in the relationship for 12 years.  She deposed that they had finally separated on 16 June 2015.  She asserted that during the parties’ relationship Mr Black had been violent towards her and frequently verbally abusive. 

8. In particular, it was her position that Mr Black had been controlling of her and had prevented her from seeing family and friends and had also taken money from her without permission.  Significantly, she asserted that Mr Black had used the drug ice throughout the relationship and that she had seen some of this drug in his possession around about the time the parties separated.  It was also her position that Mr Black had significant issues to do with alcohol.

9. It was her case, at this stage, that since the parties had separated she had not been permitted to see X and it was on this basis that she sought the extreme intervention, which she did.  It was also her evidence that she had been X’s primary carer.  She further asserted that Mr Black worked full time and often was away from the home.  Of some significance in these proceedings, she asserted that X was also extremely close to her mother and was always excited to see his “nanny”.

10. Accordingly, at this stage it was essentially the late Ms Veitch’s position that, between the date of separation and the institution of her proceedings, Mr Black had attempted to use X as a tool to coerce her to return to the relationship.  In these circumstances she and her parents had gone to X’s childcare to attempt to see him.  As will become clear, this had led to an unpleasant altercation between the individuals concerned.

11. Ms Dorling, counsel for the father, submits that with her death Ms B’s affidavit should be removed from the court file and the court should have no regard to it, particularly given that, in Ms Dorling’s submission, it is extremely prejudicial to the father and the late Ms B cannot be cross-examined.

12. I agree that Ms B for obvious reasons cannot be cross‑examined.  However, I disagree that the affidavit should be struck from the proceedings.  I reach this conclusion for the following reasons. 

13. Firstly, these are interim proceedings. They are also child related proceedings. As such, the strict laws of evidence do not apply to them. In any event, in my view, these proceedings are covered by section 63 of the Evidence Act, which provides an exception to the hearsay rule.

14. I am satisfied that Ms B is not available to give evidence in these proceedings.  Hearsay is admissible if a person is unavailable to give evidence.  The expression “unavailable to give evidence” is defined in section 4 of part 2 of the Evidence Act 1995 (Cth). It includes when a person is dead.

15. The late Ms B’s application was listed, at her request, urgently, on 3 July 2015.  Clearly it was a very difficult and emotionally infused situation.  On that occasion to the very great credit of the parties and with the assistance of their then lawyers Ms Fuda, who still remains in the proceedings, and Ms Hurst, who is not currently engaged in them, the parties were able to agree on a regime for X’s care. 

16. Essentially, it was agreed that X would spend three days of one week and four days of the other week with his mother whom, as I have indicated, was living with her parents in (omitted).  At other times he would live with his father. 

17. Handovers were to occur at Hungry Jack’s in (omitted) and were to be conducted by Mr Veitch and a family friend of Mr Black, Mr T.  Mr Black agreed that he would remain in his vehicle and that Mr T would attend to the actual handover. 

18. At this stage, without any admission on his part, the father agreed not to harass, abuse or denigrate the mother or any member of her family, or consume alcohol to excess or any illicit substance during any period of time the child was in his care or 24 hours beforehand.  In addition, Mr Black was directed to file his response and an affidavit in support within 28 days of today’s date.  Mr Black did not comply with that order. 

19. Following Ms B’s passing, the grandparents filed an application on 1 October 2015.  Essentially they sought to be joined as parties to the proceedings.  In particular, they sought orders that X should spend time with them from 7 am on Monday until 5 pm the following Wednesday of each week. 

20. They also sought orders that X spend time with them on one of Christmas Eve, Boxing Day or Christmas Day.  In addition, they sought orders, which would require Mr Black to submit to a urine drug analysis for the presence of illicit substances.  Although the orders do not specifically indicate it, it seems that the grandparents wished X to be independently represented in these proceedings. 

21. The grandparents also sought orders that Mr Black obtain a mental health plan and follow all the reasonable directions of the psychologist or psychiatrist arising from such a plan.  They proposed that handovers take place at (omitted) McDonald’s, although I note that the earlier order indicated Hungry Jack’s.

22. The application was supported by two affidavits filed by Mr Veitch and Ms Veitch respectively.  Mr Veitch deposed that Mr T had been of great assistance at handovers.  However, he asserted that Mr Black had been aggressive and abusive towards him at some handovers and had blamed him for the breakdown of his relationship with the late Ms B. 

23. Mr Veitch acknowledged that the handovers had been difficult for X.  He reported that the child had had difficulty separating from his father but had quickly calmed down.  He also reported that Mr Black said words to the effect of him, “It is cruel what you are doing” which was apparently a reference to X.  Mr Veitch also confirmed the evidence of his late daughter that he had been told that Mr Black had taken money from her and had sold goods to pay for bills. 

24. Ms Veitch’s affidavit was a more significant document.  In particular, she deposed as follows:

    Since X was an infant I have spent at least two days and one night a week with him.  Ever since X was about four weeks old he would stay at my house from Monday morning overnight until Tuesday afternoon.  Furthermore, I would also babysit X randomly on Friday nights and weekends if Ms B and Mr Black were going out.

25. She too raised concerns regarding what she had been told about Mr Black’s use of ice and marijuana, in particular that it had come to her attention that Mr Black and her late daughter were growing marijuana in a back shed.  She deposed that she had seen what she described as the set up herself and was concerned about it.  It was also her evidence that she had seen a bowl of marijuana and a pipe outside X’s bedroom and she had taken a photograph of it.

26. In addition she asserted that the relationship between the late Ms B and Mr Black had been a volatile one.  It was her evidence that she had observed an argument between the parents and had seen X being physically dragged by his father, which had caused her significant concern. 

27. Of some moment in these proceedings, as they have unfolded, Ms Veitch deposed that, following the orders of 3 July 2015, she noticed that X was suffering constipation.  It was her evidence that she had fed X high fibre fruits and vegetables and encouraged him to move his bowels.  She was concerned that the child’s diet was inadequate in the care of his father. 

28. As is required by the Rules, the grandparents have filed a notice of risk in respect of the matters raised by them in these proceedings, which relate to the risk of X being subject to abuse, neglect and family violence.  In this context, they allege that the father has handled the child roughly during arguments which have arisen between his parents. 

29. The case returned to court on 6 October.  Mr Black had not filed any affidavit material at this time.  I was well aware of the sensitive nature of the proceedings.  It was saddening to me that those involved in X’s care were in court arguing about arrangements for his care. 

30. In these circumstances I asked the parties to reconsider their positions to see if some accommodation could be reached between them, as had occurred earlier.  Regrettably, Ms Dorling, who had recently come into the matter, told me that there could be no such accommodation.  She told me that the father wished to raise very serious matters indeed in respect of the care of X.

31. On that basis the proceedings were adjourned, for about a month, to 5 November.  I ordered that Mr Black file his response and answering material within 14 days.  If, as I was told, there were serious matters which Mr Black wished to raise, I thought it was incumbent upon him to put them specifically so that the grandparents could have an opportunity to respond. 

32. For reasons which are not clear to me, Mr Black chose to file his material on 3 November, which was some 14 days later than had been ordered.  Up until this stage Ms Dorling has provided no explanation as to why there was a late filing of this material. 

33. Again, as is required by the Rules, a notice of risk was filed.  This document is intended to be a short form flag, which alerts the court and, if necessary, the child welfare authorities in respect of issues relating to abuse or threat of abuse in respect of the child concerned.  The notice of risk alleges the following:

    The maternal grandparents have been consistently harassing the father.  The maternal grandparents have attempted to remove the child from his childcare centre and therefore from the father’s care. 

    And finally:

    The maternal grandparents have placed their fingers into the child’s anus.

34. In his affidavit filed in support of his position which, as I say, is that at this stage the grandparents should spend no time whatsoever with the child and that the maternal grandmother should submit to an independent psychiatric assessment, the father has delineated his position. 

35. In his affidavit, Mr Black deposes to his having an unfriendly and conflicted relationship with the grandparents, whom he asserts have always been dismissive of him and unsupportive of his relationship with their daughter.

36. In his affidavit, he essentially asserts that during the latter stages of her life, Ms B was not only extremely unwell physically but was not in control of her faculties.  He suggests that she has been subject to the undue influence of the grandparents, who have prevailed on her, on a number of occasions, to change her will to their advantage and contrary to his.  He asserts that he has no understanding as to why Ms B left the former family home. 

37. He denies that he has ever been violent towards her and it would seem it is his position, by necessary implication, that she was not of sound mind when she left the household and certainly was not of sound mind when she deposed her original affidavit, which is critical of him. 

38. At this point, it should be pointed out that Ms Boylan, who is the grandparents’ solicitor and who was formerly Ms B’s solicitor, asserts that Ms B’s affidavit was sworn at (omitted) on 25 June 2015 before her (Ms Boylan) having been read over to the late Ms B who appeared perfectly to understand it, having made her mark, in Ms Boylan’s presence.

39. In his affidavit, Mr Black gave his version of what had occurred at X’s childcare centre on 19 June 2015.  That childcare is the (omitted) Day Nursery and Kindergarten.  In addition, annexed to his affidavit are a number of statements, which have been provided, not on oath, by various workers at the childcare centre including the manager, Ms C.

40. I have no doubt that it was a difficult and uncertain situation which occurred.  I have little doubt that the grandparents and Mr Black were jostling for control of the child in these extremely tragic circumstances.  It was a very unfortunate situation.  I suspect that no one behaved particularly well.  But the fact remains – as far as I know – there was no involvement by the police on this occasion, although Ms C did indicate that she would summons the police to the day care centre.

41. It is essentially Mr Black’s position that Ms B was being manipulated at the time to go and remove X from the childcare centre.  I am not in a position to make any specific findings of fact about this incident other than it was extremely unfortunate and indicate that the grandparents on the one hand and Mr Black on the other hand have no capacity to remain focused on what was best for X at the time.

42. In his affidavit Mr Black acknowledges that he and the late Ms B did grow a small amount of marijuana but he asserts that it was taken by Ms B for medical reasons.  Whether that is so or not I do not know and to be perfectly frank, from my perspective, it is not a significant issue. 

43. More significantly, Mr Black acknowledges that in 2014, which I accept must have been a very difficult time for him, he used marijuana and methamphetamines as, to use his terminology, a coping mechanism.  It is his evidence that he has sought psychological assistance and is now no longer using illicit drugs.  I have not received any medical or psychological evidence to support this assertion.

1. Most significantly, in these proceedings, in answer to the grandmother’s assertion that she has regularly spent overnight time with X, in response to the specific paragraph in which Ms B raises that, Mr Black says as follows:

   I refer to paragraph 7 of the maternal grandmother’s affidavit and say that the maternal grandparent had the child on one night per week.

2. Mr Black has not chosen to elaborate upon that statement.  He has not made any criticisms of the grandmother’s care of the child.  His criticisms of her and indeed of Mr Veitch Senior is that the grandparents have not supported his relationship with their daughter and have been, in his words, manipulative towards Ms B and have encouraged their daughter to leave him.  Again, whether this is so or not, I am not in a position to say.

3. It is Mr Black’s position that Ms B fell out with her parents from October 2014 and it was only as a consequence of his actions that the relationship was repaired in April 2015.  The grandparents dispute the length of this period but due to the late filing of Mr Black’s affidavit are not in a position to say more about it. 

4. Mr Black, in support of his assertion that the grandparents are meddlesome and bothersome people, asserts that they have attempted to have him evicted from his Housing Commission home; have tried to have the utilities from the home switched off to it.  As such, he asserts that the court can have no regard to the allegations regarding his unfitness as a parent because they have never made any complaints about this issue previously.

5. Most significantly of all is the following material, which is contained in three paragraphs of Mr Black’s affidavit.  I will read the three relevant paragraphs:

   There has also been an incident that the maternal grandfather disclosed to me that the maternal grandparents have stuck their fingers in his bottom as he did not want to poo.  The child is absolutely petrified to go to the toilet and has required hospitalisation on two occasions due to this.  He is also seeing a child psychologist.  This is completely and totally inappropriate and has caused harm to the child.

6. The grandparents in a formal sense have not had an opportunity to respond to this.  As far as I know, the matter has not been reported to Families SA or any welfare authority.  It has not been reported to the police.  It is not supported by any medical evidence. 

7. In particular, I have not been provided with any evidence in respect of the hospitalisation.  I have not been advised as to the identity of the child psychologist concerned and I have not got a report from such a person.

8. I now turn to the legal principles I have to apply in this case.  These proceedings appear at an interim stage.  As a consequence, I have not had an opportunity to take any lengthy evidence from any of the persons who are involved in this case.  More significantly, there has not been time for a family report to be prepared.  I will make an order for a family report shortly.

9. In cases of this kind, family reports are invariably very important because the writer of such reports is able to see the child concerned interacting with those who are important to the child’s care, welfare and development and report back to the court as to the appropriate outcome for the child concerned. 

10. It is frequently the case that the court is called upon to make difficult decisions in respect of the care of a child, when the facts are bitterly disputed between the parties concerned, who are in a state of crisis.  As a consequence, it is invariably very difficult, if not impossible, for the court to have a clear sense of what has actually occurred.

11. Notwithstanding those evidentiary difficulties, it remains the court’s responsibility to do the best it can, with the evidence which is available to it, to put in place the orders which it thinks will best serve the interests of the child concerned. 

12. In this case there are many factual issues in dispute between the parties.  In no particular order of significance they concern the following.

    ·    What was Ms B’s medical capacity when the parties separated and when she filed her affidavit? 

    ·    Was she being manipulated by her parents because of her mental incapacity as the father asserts or was it otherwise as the grandparents assert? 

    ·    What is the truth about X’s constipation?  What was said by the grandfather to Mr Black about it? 

    ·    How long was the falling out between the late Ms B and her parents? 

    ·    What happened at the childcare facility on 19 June?

    I cannot resolve those factual issues at this stage.

13. The manner in which the court makes arrangements for the care of a child is through the making of a parenting order.  As a consequence of section 65C of the Act there is no doubt that the grandparents have standing to bring their application.  Section 65C specifies that the grandparents of a child may apply to the court for a parenting order.  

14. That situation is emphasised by the objects and principles of Part VII of the Family Law Act 1975, which are contained in section 60B.  Section 60B(2)(c) specifies that 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. 

15. As Part VII of the Family Law Act has evolved, the legislature has seen fit, in amendments made by it, to emphasise the importance of the role played by grandparents in the lives of their grandchildren. This has followed on from a number of decisions of the Family Court. In particular, the decision of Bright & Bright,[1] in which Treyvaud J pointed out that children generally do better if they have a sense of where they fit in in their wider family. 

    [1] Bright v Bright (1995) FLC 92-570

16. In my view, in a case such as this one, where tragically X has been robbed of his mother, it is likely to be important, for his sense of identity, that he feels a connection to his maternal family, particularly his maternal grandparents.

17. Although the hearing at the interim stage takes a different form to that which occurs at the final hearing stage the same legal principles apply. I must be satisfied that whatever order I make is in X’s best interests. How a child’s interests are to be served best is determined by reference to the matters set out in section 60CC.

18. In the case of Goode & Goode the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed or bearing in mind that it cannot make findings of fact about all manner of disputed things and focus on what is agreed. In that context analyse what findings may be made in respect of relevant section 60CC factors.

19. 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. 

20. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary 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.

21. In this case it is clearly the case that both the grandparents and the father assert that there is a risk of this little boy coming to some form of harm as a consequence of the other party’s care of him.  However, the grandparents do not seek to change X’s primary place of residence.  In those circumstances it seems clear that X will continue to have the benefit of having a meaningful level of relationship with his father. 

22. The risk to X takes a number of forms.  In my view, the risks as delineated by all concerned are somewhat inchoate or amorphous.  From the father’s perspective they relate to the risk of an assault to the rectal area of the child and that the child’s relationship with him will not be supported by the grandparents.  From the grandparents’ perspective they are concerned about the father’s drug use and his allegedly violent disposition.

23. I have to consider these issues in the context of the applicable legislation.  Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975.  It means:

    “(a)   an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)     serious neglect of the child.”

24. For obvious reasons, any case involving an alleged sexual abuse to a child must be closely examined by the court.  In this context, it is unclear to me whether Mr Black alleges some form of sexual assault in the sense that it is said that Mr Veitch and Ms Veitch have used the child in some form of sexual activity for their sexual gratification.  The Veitch’s have not had an opportunity to respond to that allegation which, as I say, has not been reported to the police.

25. I have not heard from the child’s psychologist.  In this context, I think I must bear in mind that the extremely poor relationship between the parties provides fertile ground in which words or actions passing between them can be misconceived, misunderstood or indeed manipulated.  Regrettably, it is also not known for allegations of sexual abuse to be made for tactical or mischievous reasons.  In this regard I bear in mind what was said by Fogarty J in the case of N & S and the Separate Representatives: 

    Courts must be aware that not all allegations of sexual abuse are true.  False allegations made either by parents acting in good faith as a result of the misperception of information about their child or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.

26. Pausing there, as I have said, Mr Black’s allegation does not appear, strictly speaking, to be a sexual abuse allegation, although it has an undertone to that effect.  This is a child who was said to have been constipated.  As I remarked yesterday, the carers of young children have to, for all sorts of reasons relating to hygiene, cleanliness and other obvious considerations, tend to the bottoms of small children.  As Fogarty J remarked, the court must be careful about misperception of information. 

27. It is also telling, I think, that Mr Black is not in a position to say, from his own observation, that there was such an assault.  He has only heard about it from Mr Veitch.  It seems curious that Mr Veitch would make an admission against his interests of such significance. 

28. In W and W [Abuse allegations: unacceptable risk][2] the Full Court summarised a number of authorities dealing with abuse allegations.  In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[3]:

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

    In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence has been provided?  Are there satisfactory explanations for the allegations apart from sexual abuse?  What are the likely future effects on the child?

    This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown.  The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case.  But it is essential that questions like these be asked.”

    [2] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

    [3] See N & S and the Separate Representative [1996] FLC 92-655 at page 82,713-82,714

29. In this case, given his age, X cannot easily be interviewed by anybody about something that happened at some unspecified date in the past.  The parties are in vigorous and vitriolic dispute with one another.  There is no expert evidence.  In all the circumstances of this case, I do not consider that it would constitute an unacceptable risk for this little boy to spend some time with his maternal grandparents. 

30. I also have to consider the issue of family violence.  Family violence is defined by section 4AB(1) of the Family Law Act 1975.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

31. In this case both parties, I think, assert that the other has been guilty of coercive and controlling behaviour.  From Mr Black’s perspective, he asserts, I think, that the Veitch’s coerced and controlled their late daughter.  From the grandparents’ perspective, they assert that Mr Black was violent towards their late daughter and more recently has been threatening at handovers.

32. It is my responsibility to look at the risk to X, not only of assault and abuse but also in respect of his potential exposure to family violence.  I have to put in place a response, which I consider is proportionate to the degree of risk.  In this case I am concerned about what may or may not happen at the handover of X.  It is the father’s position that X will not separate easily from him. 

33. Why that is so I am not in a position to say specifically at this stage.  But it does not seem to me to be an unreasonable conjecture that the child is psychologically aware of the tension between his grandparents and father, who come into contact with one another at handover and he responds to it. 

34. In my view a proportionate response to this danger is to make an order as far as possible neutralising handover and emphasising to the parties concerned that the dispute between them is not X’s dispute.  It is their dispute and they have a responsibility to behave appropriately and neutrally at handover.

35. Turning more specifically to the other relevant section 60CC factors, in particular the additional considerations, I have to consider the nature of the relationship of the child with each of his parents and with other persons including any grandparent or other relative of the child.

36. As I have said, the grandparents do not seek to change where X primarily lives.  It is their case that X has a significant level of relationship with them.  This seems to me to be more likely than not on the evidence available to me.

37. Ms Veitch has deposed that she has had the child in her care regularly overnight since the child was about four weeks of age.  Significantly, Mr Black does not dispute that.  In addition, apart from issues to do with the child’s bottom and issues to do with the relationship between the late Ms B and her parents, he has made no explicit criticisms of the grandparents’ care of this little boy.  I think that is a very significant thing indeed.

38. In that context I have to consider the likely effect of any changes in the child’s circumstances including the likely effect on the child of being separated from any other person including a grandparent with whom he has previously lived or interacted.  In this case it seems clear that X has spent regular periods of time with his grandparents.

39. Putting aside the dispute as to what occurred between October 2014 and April 2015, it was the case that between the date of the court’s order on 3 July 2015 and Ms B’s death that the maternal grandparents saw the child very regularly indeed.  In that context I am troubled that for them to be removed from the child’s life without any explanation following the untimely death of the child’s mother may be psychologically challenging for the child concerned.

40. At this stage the grandparents make many criticisms of Mr Black’s parenting capacity.  I am not in a position to make findings of fact about them.  However, apart from issues to do with the child’s bottom which I have addressed at some length, Mr Black, it would appear, has no criticisms of the grandparents’ ability to care for this child, in a physical sense. 

41. I also have to consider the capacity of all the parties to provide for the child’s emotional and intellectual needs.  I am gravely concerned about that.  It saddens me that this vitriolic dispute has come before the court.  It cannot assist this child with the difficult process of adjustment which he must undertake.  I acknowledge that necessarily all proceedings, which come before this court, have some aspect of being adversarial. 

42. It is trite, but true nonetheless, to point out that people do not come into this court to say something good about the other party concerned.  But in that context, I think legal practitioners have a duty to consider very carefully how they prepare material on behalf of their respective clients and have a responsibility to ensure that wherever possible unnecessary proceedings can be avoided and care is taken to avoid inflammatory material in affidavit materials.

43. In this case, the parties are likely to be involved with one another for a very significant period indeed.  I am well aware of the great damage proceedings such as this can do to relationships between individuals, who are involved in the care of a child, particularly a vulnerable child such as X.

44. However, on balance I have come to the view that it would not be in the best interests of this child not to interact with his grandparents.  I bear in mind his tender years.  X will be three years of age next March.  He is a child of tender years. 

45. Ordinarily I would be cautious about overnight time away from a child’s primary carer in respect of a child aged three years or under.  But in this case it is acknowledged that X has spent overnight care with his grandparents and it also seems to be the case that X’s primary carer, up until fairly recently, was his late mother.

46. This is a case of the upmost sensitivity.  I acknowledge that X is a very vulnerable child.  As I say, it saddens me that rather than focusing on how this little boy can be cared for and shepherded through this stage of his life, by all who love and care about him, the parties are essentially focusing on the negative aspects of the other.

47. However, putting those issues to one side, for the reasons I have provided, I have come to the view that X should spend one overnight period each week with his grandparents.  I am satisfied that that will not represent an unacceptable risk to the welfare of the child for the reasons I have provided.  I will order that a family report be prepared which will be released on or before 11 March 2016 and I will adjourn the further hearing of the matter to 24 March 2016 at 9.30 in the morning. 

1. I will direct that the child be exchanged at Hungry Jack’s.  As I said earlier there seems to be some lack of clarity as to whether it is Hungry Jack’s or McDonald’s but the earlier order speaks of Hungry Jack’s so I will make it so.  I will order that the persons who are to affect the handover are the father and the maternal grandfather and they will be restrained from bringing any other person with them to the handover. 

2. I will also make orders restraining the parties from denigrating the other or discussing the proceedings with X or in his hearing.  I am hopeful that there will be some cooling of the emotions in this matter, but whether that is possible or not, I do not know. 

3. I pause, I was told yesterday that Mr Black is going away at Christmas but the child will be available on Christmas Eve.  So that is a five hour window for the child to get some presents from the grandparents and so forth.

4. I decline to make any orders requiring Mr Black to undergo any psychiatric examination.  In the circumstances I am not going to make an injunction restraining anybody from using any illicit substance or drinking alcohol to excess.  It is against the law to take amphetamines or smoke marijuana.  I will leave it at that.

5. For all 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 ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       17 December 2015