WALDRON & DAINES

[2020] FCCA 844

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDRON & DAINES [2020] FCCA 844

Catchwords:
FAMILY LAW – Interim parenting – where father charged, convicted and incarcerated for assault of a child in his care when working as a health care worker – whether risk of harm to child – weight to be given to child’s views – orders in best interests.  

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS WALDRON

Respondent: MR DAINES

File Number: WOC 97 of 2017

Judgment of: Judge Altobelli

Hearing date: 23 March 2020

Date of Last Submission: 23 March 2020

Delivered at: Wollongong

Delivered on: 25 March 2020

REPRESENTATION

Solicitors for the Applicant: RMB Lawyers

Solicitors for the Respondent: Carter Ferguson

Solicitors for the Independent Children's Lawyer: Chapman & Smyth Family Law Pty Ltd

ORDERS PENDING FURTHER ORDER:

1. The Child X (born in 2009) (‘the Child’) spend time with the Father at a supervised contact centre or using a professional supervision service for 2 hours each alternate weekend at times suitable to the contact centre or supervision service. Such service be as agreed between the parents, or failing agreement, as proposed by the Independent Children’s Lawyer.

2. To facilitate Order 1 above, the Mother and the Father are each to forthwith;

   (a)Contact the nominated contact centre and make an application for their supervised children’s contact service;

   (b)Provide all information and complete all necessary paperwork as may be requested by the nominated contact centre;

   (c)Attend any intake or assessment appointments as may be requested by the nominated contact centre on such days and times as nominated by the nominated contact centre; and

   (d)Comply with any other reasonable request or direction of the nominated contact centre for the purpose of implementing these Orders.

3. Until such supervised contact centre or professional supervision service becomes available, the Child is to spend no time with the Father.

4. The Father pay for any costs associated with the supervised contact centre or professional supervision service.

THE COURT FURTHER ORDERS THAT:

1. The parties are at liberty to file terms in Chambers for the purposes of orders being made in Chambers in relation to the appointment of a Single Expert Witness.

2. Leave is granted to the parties to apply to Chambers for an Order for the preparation of a Family Report in the event that an Expert’s Report cannot be obtained.

3. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

4. The matter be adjourned to 4 August 2020 at 9:30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 97 of 207

MS WALDRON

Applicant

And

MR DAINES

Respondent

ORAL REASONS FOR JUDGMENT

Introduction

1. In the matter of Waldron & Daines, I provide the following Oral Reasons For Judgment.  These Reasons for Judgment explain the orders that the Court has made on an interim basis in relation to X, who is 10 years old.  X’s father is 39 years old, and his mother 33 years old.  They met in 2004, started living together in 2005, married in 2007, and separated in 2010.  This litigation about X started in 2017.

2. The current application before the Court is the Mother’s Application in a Case filed 4 November 2019, in which she seeks an order that X continue to live with her and that X spend no time with his father. In fact, she seeks injunctions under section 68B of the Family Law Act, restraining the Father from having any contact or communication with him.

3. On 21 January 2020, the Father filed a Response to this Application, asking for it to be dismissed.  The effect of this response would be to reinstate the previously existing orders made on 2 May 2017, that X spends time with his father each alternate Saturday, from 11:00am until 3:00pm, supervised by one of the paternal grandparents.

4. X had the benefit of an Independent Children’s Lawyer.  Immediately before the commencement of the Interim Hearing, the Independent Children’s Lawyer’s proposal was that X spend time with his father each alternate weekend, from 4:00pm on Friday to 4:00pm on Sunday, provided that such time was supervised by one of the paternal grandparents.

5. At the Interim Hearing itself, the Independent Children’s Lawyer changed her proposal to align with that of the Father.  The proposal of the Independent Children’s Lawyer before the commencement of the Interim Hearing is somewhat surprising, and it was difficult to see how the rationale for the proposal was supported by the Case Outline document that was filed.  In any event, the competing proposals became that according to the Mother, X should spend no time with his father, but according to the Father and the Independent Children’s Lawyer, X should resume spending limited daytime and supervised contact with his father.

The evidence before the Court

1. In the Mother’s case she relied on the following documents:

   a)Application in a Case filed 4 November 2019;

   b)Affidavit of Ms Waldron filed 25 January 2017; and

   c)Affidavit of Ms Waldron filed 16 January 2020.

2. In the Father’s case he relied on the following documents:

   a)Response to an Application in a Case filed 21 January 2020;

   b)Affidavit of Mr Daines filed 20 January 2020; and

   c)Affidavit of Ms A filed 9 March 2020.

3. The following material was tendered as evidence during the course of the proceedings:

   a)Respondent’s charge sheet and bail information;

   b)Child Inclusive Conference Memorandum dated 9 March 2020;

   c)Documents produced pursuant to subpoena on the District Court of New South Wales;

   d)Documents produced pursuant to subpoena on NSW Police; and

   e)Documents produced pursuant to subpoena on B School.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring 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 child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    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

   (b)    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); and

   (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)  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 best 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.

   Substantial and significant time

   (2)  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; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best 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.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

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

   (c) identifying any agreed or uncontested relevant facts;

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

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

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

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

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

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

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

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

Discussion

1. The Independent Children’s Lawyer in the submissions quite correctly characterised this decision as a very difficult one.  That difficulty arises in the following circumstances.  For several years before May 2017, X was spending regular overnight and unsupervised time with his father.  From 2 May 2017, this changed to limited daytime and supervised contact.  In 2016, the Father had been charged with assaulting a child who was in his care.  The charges were very serious and will be discussed below.

2. The Father agrees that he told the paternal grandmother about the charges, and it is clear that he initially denied responsibility.  He was arrested and charged with assault occasioning actual bodily harm, and later, stalk and intimidation offences.  The Mother contends that the Father did not tell her about the criminal charges, and that she was left to read about it in the newspaper, in a news article.  Up until that time when contact ceased, X continued to spend time with his father.

3. Both the Father and paternal grandmother were aware of the charges, but the Mother was not.  The Father was subsequently convicted on the charges.  The conviction was for assault occasioning actual bodily harm, and two counts of stalk and intimidation.  His incarceration commenced 2019, and he was released in late 2019.  It is common ground in this case that X has not spent time with the Father since March 2019, and there has been very, very limited telephone communication.

4. Even before these events, it is clear that the parents had little trust in each other.  There already existed concerns about the Father’s mental health.  The relationship between the Mother and the paternal grandparents is strained.  The Mother is feeling that there has been a significant breach of trust, not just on the part of the Father, but on the part of the paternal grandparents as well.  There was clearly a period when the Father and the paternal grandparents were aware of the charges, but the Father continued to spend time with X, and the Mother was not told.

5. The Child Inclusive Conference Memorandum of 9 March 2020 became exhibit ICL1.  It is the only expert and independent evidence in this case.  For present purposes, the relevant paragraphs are 17, 19, 20 and 21

   17. X understood that he was at this appointment to talk about his “other Dad”.  X said that he did “not really” love his father, “because of what he did”.  When asked what his father did, X said that his father went to gaol for having “abused a disabled child”.  He said that his mother and stepfather told him this.  X said that he did not feel safe while with his father and he said that he did not want to see his father or speak to him.  X was unable to articulate why he felt unsafe with his father and he was unable or unwilling to give examples of being unsafe with his father.  He repeated comments including “I just don’t want to” see or speak to him and that he “just doesn’t” feel safe with his father.

   19. X said that his mother does not want him to see his father and she does not want him to see his paternal grandparents.  He said that his mother thinks that this is “easiest”.  X said that he would like to see his paternal grandfather and paternal grandmother, but was critical of his paternal grandmother as his mother told him that his “Nan” believes that his father “didn’t do anything”.  He said that he probably cannot see his paternal grandparents without also seeing his father and, therefore, he does not want to see them at all, agreeing with his mother that this is “easiest”.

   20. Ms Waldron said that there is nothing to benefit from X having an ongoing relationship with his father and that she is fearful of Mr Daines harming X to get back at her or of him losing his temper and taking it out on X.  She said that she has not gained any reassurance that Mr Daines has improved his behaviour from the incident that resulted in his incarceration.  She said that Mr Daines allegation that she is acting out of revenge indicates to her that he does not comprehend the seriousness of his child abuse conviction and the likely impact that such a conviction would have on a parenting arrangement about his child.

   21. Mr Daines said that Ms Waldron has been, since their separation, unwilling to support his relationship with X.  He said that the concerns about his risk arising from his conviction are a significant factor but can be overcome with time.  He would like supervised or telephone contact to start, with the objective of, in the longer term, moving towards unsupervised alternate weekends.  He said that he is prepared to progress slowly, knowing that X’s relationship with him will need time.  He said that X and he have, historically shared a close and positive relationship.

6. The Family Consultant noted at paragraph 25 that whilst X had expressed clear and strong views not to see or speak with his father, there were concerns that X’s negative view of his father had been influenced by his mother’s view of his father.

7. Having said this, however, the Family Consultant did acknowledge that the Father’s conviction on child abuse offences were significant, and regardless of X’s views, the Court ought to proceed with caution.  X was reported as not wanting to see or speak with his Father, and this the Family Consultant observed as another layer to an already complex situation.

8. Based on this evidence, the Court is able to conclude that whilst X’s views are a relevant factor, they are not determinative in this case, because of the possibility, indeed perhaps likelihood that X has been exposed to his mother’s views.  There may well be room to criticise the mother in this regard, but the overall context must not be ignored.  The Father’s charges and conviction were serious violence offences against a child.  The issue of the weight to be placed on X’s views and whether, and if so, to what extent those views have been influenced by his mother are matters for a Final Hearing.

9. For all practical purposes, the Interim Hearing falls to be determined by reference to risk of harm considerations, and parental capacity, and attitudes.  The facts sheet in support of the charges against the Father was in evidence.  The charges have already been noted.  At the time, the Father was employed as a health care worker, a role he had held for the previous 18 months.  The victim of the Father’s criminal behaviour was a nine year old severely disabled child.

10. The child is non-verbal and requires assistance with eating, bathing and toileting.  Despite being 9 years old, the child was described as toddler-like in his behaviour, and therefore needing constant attention and care.  The assaults and other criminal behaviour took place whilst the child was in respite care provided by the Father.  The evidence of what the Father did was before the Court.  There is no need to go into detail.  The Independent Children’s Lawyer described the Father’s offence as chilling.  That is undoubtedly the case.  The Father’s sentencing assessment report was in evidence and was relied on in his case.  It is interesting to note that the assessment and recommendations which were, of course, based on an interview with the Father, a perusal of personal references, a telephone call with the paternal grandmother, and the police facts and criminal history recommend that the Father is suitable to undertake community service, or an intensive corrections order, but, in fact, what happened is that the learned local Court magistrate sentenced the father to 9 months imprisonment, and even on appeal this was reduced to seven months. 

11. This Court places little weight on the sentencing assessment report.  Its use, however, is in confirming the past struggle that the Father has had with regulating his emotions, as well as his past issues with mental health.  It refers to the Father’s explanation of his behaviour as being attributed to high levels of stress and fatigue.  The sentencing assessment report acknowledges that whilst the Father admitted to the verbal harassment, he denied the assault.  Of course, he was convicted of both.  The victim impact statement in the Father’s criminal trial was provided by the child’s mother.  It is a poignant, powerful document.  At one point the victim’s mother says there is no excuse for the treatment that C was subjected to.  An adult person knows what is right and wrong.  What happened to C was certainly wrong, particularly when you consider C’s unique vulnerability and the adult’s authoritative power in the situation. 

12. The transcript of the criminal proceedings was before the Court.  The Father was given the opportunity to explain why he did not initially admit to the offences, and his explanation was that he was worried about what that would have said about him as a person.  There are photos of the victim including the bruising that was caused by the Father’s assault.  There is a record of what the Father said to the victim during the course of the assault.  To say the least, it is not very edifying.  Even if there had been no physical assault, what the Father said was suggestive of his complete inability to regulate his emotions.  In terms of the other evidence, X’s school reports indicate that he is progressing well, notwithstanding what has been happening in his father’s life, and the limited time that he has had with him. 

13. The only other relevant independent evidence is the COPS entry for 1 January 2020.  The incident recorded suggests that the Father sent a number of text messages to another person in which he threatened to kill himself.  The messages suggested that he wanted to kill himself due to the breakdown in a relationship between the Father and another person.  The police became involved.  They couldn’t find the Father for some time, but eventually located him walking around Town D.  Initially, he would not disclose his location, but in the end he did.  He told police that he did not wish to commit self-harm.  He provided a different version of the text message exchange.  The Court observes that even on his version of the text message exchange, it would not have been unreasonable for the person who called the police to believe that the Father was threatening self-harm. 

14. The Father’s Affidavit of 17 January 2020 strangely makes no reference to this incident.  In the Father’s Affidavit, his description of the events that ultimately led to his conviction and imprisonment are minimalistic.  At paragraph 9, for example, he acknowledges that X has not spent time with him since March 2019.  He expresses concern that this has been hurtful and confusing for X.  He goes on to say:

    I accept responsibility for my behaviour and its consequences and have not spent a day not regretting the impact this has had on others.

15. With the greatest of respect to the Father, this was an opportunity for him to demonstrate his insight and understanding about what he had done,  the impact of his actions on a vulnerable child, and how his actions might be perceived and experienced by others, including the Mother.  For example, when he refers to the, “behaviour”, for which he accepts responsibility, why was it left for others to provide the details to the Court?  When the father refers to the, “consequences”, of his behaviour, why didn’t he explain what these were rather than leaving it to others to present this evidence before the Court?  At paragraph 18 he describes the circumstances of his offending as traumatic and unforgiveable.  He explained that he became frustrated when the child victim would not eat and yelled at him and verbally abused him.  Indeed, there is ample evidence of this.  He goes on to say “I was accused of force-feeding him after he was later found to have a bruise near his mouth.”

16. The Court found that he had assaulted this child physically.  The Father does not acknowledge this.  The Father’s explanation for not telling the Mother about the charges is that this lawyer told him not to do that.  Notwithstanding his lawyer’s advice, however, he did tell the paternal grandparents.  If the Father could follow his lawyer’s advice in relation to the Mother, why couldn’t he follow his lawyer’s advice in relation to his parents?  Did he consider that this information, that is, that the charges relayed against him were highly relevant to the welfare of X, and that the Mother was entitled to know?  In any event, this Court does not accept the Father’s contention that based on whatever legal advice he might have received, he could not even tell X’s mother about the fact of the charges. 

17. He may well have been ill-advised to provide further particulars, but from this Court’s perspective there was no basis not to disclose the fact of the charges to the Mother.  There are important issues of trust involved.  In his Affidavit the Father is critical of the Mother telling X about his conviction.  The Mother’s explanation is that in all likelihood, X would have found out from his friends at school, given the media and social media attention that was given to the Father’s conviction.  What seems apparent is that at some point X became aware of his father in jail, indeed, through the paternal grandparents.  The Court does not accept for the time being the Father’s criticism of the Mother in this regard. 

18. The issue for the Court, of course, is what orders should be made in relation to X in these circumstances?  For all practical purposes, the proposals of the Father and Independent Children’s Lawyer revert to the situation that existed for X before his father had been convicted on serious criminal charges.  The Father was quite appropriately given the benefit of the doubt as he had been merely charged, but not convicted.  Most of the evidence before the Court relating to the charges and conviction was not available at the time.  The imposition of supervised time, and, indeed, the regime created by the interim orders made in May 2017 was an appropriate response at that time to the risk issues.  Today, of course, much more is known about the nature of the Father’s offending and his responses to that.  Again, the Court adopts the Independent Children’s Lawyer’s description of the father’s offending as “chilling”. 

19. The risk of harm exercise in relation to X must of necessity be informed by what the Court knows today.  The Family Consultant suggested to the Court that it proceed with caution given the conviction on what was described as child abuse charges.  The Father’s own evidence creates an unfortunate impression of lack of insight into what he did, the harm he perpetrated on an innocent child, and how others might experience his actions, including X and X’s mother.  It is, respectfully, incomprehensible to the Court that at paragraph 18 he would say that he was accused of force-feeding, when what actually happened is that he was charged and convicted with assault occasioning actual bodily harm.  The concern is not about semantics.  It is about insight. 

20. The concern for the Court and certainly for the Mother is whether the Father can be trusted to spend time with his son, even in the supervised circumstances proposed by him.  The focus now turns to supervision.  The concerns raised by the Mother about supervision by the paternal grandparents have some validity.  The paternal grandmother was complicit in keeping the charges secret from the Mother, and thus showed little insight herself.  Implied in her actions was a belief that there was no risk to X.  The documents produced on subpoena by New South Wales Police and the District Court suggests that she did not believe the veracity of the charges against her son.  Grandparents may well have the luxury of adopting that sort of attitude in relation to their own children, but they must be able to consider the potential implications on their grandchildren. 

21. The paternal grandmother apparently wanted to take X to see his father in jail and appeared genuinely surprised when the Mother said no.  The paternal grandmother gave the impression of being critical of the Mother for refusing X to either spend time or communicate with his Father in the circumstances.  One can understand why the Mother would have great reservations about the suitability of the paternal grandparents in these circumstances.  The impact on the Mother of X spending time with his father under the supervision of the paternal grandparents is also a relevant factor.  Her case on her material creates an impression of an anxious mother.  There are also unresolved issues about the Father’s mental health.  There was ample material to justify the Mother’s solicitor’s submission that what occurred on 1 January 2020 was a self-harm attempt by the Father. 

22. The Court does not accept the Father’s solicitor’s submission that he did not mention the event in his Affidavit because, from his perspective, it was a non-event.  It was described in unfortunately flippant tones as an alcohol-induced lovers tiff.  The denial by the Father of the mental health crisis at that time or ongoing provides no reassurance to the Court.  There is a history of mental health issues in the Father’s life.  The Father himself admits to depression at the time of the offences.  It is unfortunate that the Court did not have the benefit of the records of the psychologist the Father consulted in jail.  Likewise, the Father is apparently seeing a psychologist currently, but there are no records from her either.  The Independent Children’s Lawyer might consider obtaining these records as well as records pertaining to the Father’s imprisonment, as this might provide further insight into his mental state. 

23. What is the risk to X in spending supervised time with his father?  There is probably minimal risk of physical harm.  The greater risk is a psychological one, of being exposed to the Father saying something inappropriate, or exposing X to an attitude or belief such as, for example, minimisation of what the Father has done to another child, or seeking somehow to defend his actions and behaviour.  The potential impact on X of his father’s underlying mental health issues remain unknown.  The role of partisan supervisors such as paternal grandparents can only go so far in a protective sense, and as regards non-physical risks.  When all these matters are taken cumulatively into account, the Court does not believe that the underlying risk issues are adequately addressed by reverting to the arrangements that existed after the Father had been charged, but before he had been convicted. 

24. Moreover, the Court is not satisfied about the suitability of the paternal grandparents as supervisors in these circumstances.  The Mother’s proposal is that there be no contact.  That is a drastic remedy to impose on an interim basis in circumstances where there will be a considerable delay before expert evidence is obtained, and a Final Hearing allocated.  Nonetheless, it provides maximum protection to X, but does exacerbate the risk of loss of relationship with his father.  No one expressly referred to the option of supervised contact through a professional service, except the solicitor for the Mother who presented this as a possible alternative to the Mother’s proposal.  The benefits of professional supervision are self-evident. 

25. The supervisors are independent, generally experienced supervisors who keep close records.  This is in contrast to the paternal grandparents.  The Court accepts that there are delays to accessing government-funded services, and the Court accepts that, in any event, these services may be greatly challenged during the current coronavirus pandemic.  The Court accepts that the use of a private service may be cost prohibitive or challenging for the Father, and the same limitations identified above may pertain even to private services.  Nonetheless, the Court is of the view that X’s time with his father should be supervised by an independent and professional supervised contact service at the Father’s expense.  If no such service is a viable, either permanently or temporarily, then X should be spending no time with his Father. 

1. Accordingly, the orders that the Court makes will be an adaption of the Mother’s proposed order.  X should spend time with his father at a supervised contact centre, or using the services of a professional supervisor, or a combination of the above, but not more than two hours each alternate weekend at times available to the service.  Until such a service becomes available, X will have no time with his father.  An order will be made to this effect.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 20 April 2020