WATERS & HOBBS

[2016] FCCA 2756

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATERS & HOBBS [2016] FCCA 2756

Catchwords:
FAMILY LAW – Interim parenting – history of child protection involvement – risk issues – 12 year old child.

Legislation:

Family Law Act 1975, ss.60, 60CC, div.12A

Cases cited:
Redmond & Redmond [2014] FamCAFC 155
Goode & Goode (2006) FLC 93-286
Deiter & Deiter [2011] FamCAFC 82

Applicant: MS WATERS

Respondent: MR HOBBS

File Number: MLC 5071 of 2016

Judgment of: Judge Harland

Hearing date: 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Melbourne

Delivered on: 27 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Delidis

Solicitors for the Applicant: Farrell Family Lawyers

Counsel for the Respondents: Mr Hoult

Solicitors for the Respondents: Ian Robertson Legal

Counsel for the Independent Children's Lawyer: Ms Agresta

Solicitors for the Independent Children's Lawyer:

The Department of Health and Human Services appearing amicus curiae:

Septimus Jones & Lee

Mr Foo

ORDERS PENDING FURTHER ORDER

1. That the father be permitted to enrol X at (omitted) Secondary College.

2. That the matter be listed for mention at 9.30am on 2 February 2017.

3. That the Independent Children’s Lawyer email a copy of these reason to the Department of Health and Human Services.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5071 of 2016

MS WATERS

Applicant

And

MR HOBBS

Respondent

REASONS FOR JUDGMENT

1. This is the second time this case comes before the Court. The case concerns X born (omitted) 2004 (“X”) who is 12 years old. On both occasions the Department of Health and Human Services (“the Department”) has appeared amicus.

2. The mother commenced these proceedings on 3 June 2016. She sought interim and final orders for X to live with her and spend time with the father four nights a fortnight. In her Notice of Risk she disclosed the father’s allegation is that she had put her fingers in X’s ears put her hands around X’s neck. She stated that the father had notified the Department.

3. The mother has three children with her current partner Ms T.  A is aged six, B will be three in December, and C is six months old.

4. The mother and father were in an on-again off-again relationship and were not in a relationship in X was born.

5. The mother says she was shocked when on Friday, 15 April 2016 the police attended her home and served her with a family violence safety notice made in X’s favour against her. She says on Saturday 9 April 2016 she had become angry with X, pointed her finger at her and smacked her on the bottom and told her to go to her room. She said that it was rare that she needed to discipline X. She denied putting her hands around her neck and putting fingers in X’s ears. The mother says up until this incident she and the respondent had a cooperative parenting arrangement. The father saw X on each Wednesday overnight and every second weekend.

6. X has been living in her father’s full-time care since 15 April 2016. The Department has been involved with the family since then and also has had previous involvement. The mother says she is aware that X later retracted the statements and the Department is also aware of this. The mother says the Department assisted her to spend time with X but this only occurred on two occasions. The first was for a few hours on Mother’s Day and the second was on 15 May 2016 for a few hours. She also saw X for a few hours on 19 and 21 May 2016. The mother says since then the father has refused her requests to see X.

7. The mother thinks the father is jealous of the fact she has other children and wants X to be in his full-time care. When the mother prepared her affidavit she had not seen X for 10 days. She said that was the longest period of time she is not seen X. She thinks X would be confused.

8. The father filed a response on 21 July 2014 seeking orders that he have interim and sole parental responsibility for X and that the mother undergo psychiatric assessments. He also sought the appointment of an Independent Children’s Lawyer (“ICL”). The father identifies a history of physical or emotional and psychological abuse by the mother to X and also says the mother’s current relationship is characterised by family violence. The mother’s partner filed an affidavit in support of the mother.

9. The father deposes in his affidavits affirmed and filed on 21 July 2016 that the mother’s conduct has been unpredictable since X was born and that the mother was in the care of the crisis assessment team for a period of time. It is not say when this occurred but it would seem it was when X was young. The father says X swallowed the mother’s sleeping tablets when she was 18 months old and almost died.

10. The father says X often came to his home with bruises but he assumed it was the result of normal childhood scrapes.

11. In November 2011 X had a large bite mark on her cheek. X said the mother did it. The father took X to the (omitted) police station where they investigated. The mother was prosecuted and placed on a good behaviour bond. The Department substantiated the report with the mother being responsible for harm to X.

12. The father says in 2013 X had a black eye and initially said that her mother did it but then retracted her statement. The father refers to other incidents in his affidavit.

13. In addition to the incident leading to the police issuing the mother with a family violence safety notice on 15 April 2016, father says that a neighbour told him that X was often looking after the younger children.

14. On 13 and 14 July 2016 X told the father that the mother had sent one X’s friends a text message to tell X that she looks like she want to go back to the mother and that the mother had a big surprise for her. The mother also rang a friend of X’s with a similar message.

15. The mother and her family had moved into the home they built across the road from X’s school since X has been in the father’s care. The father deposes that this caused X fear as the mother attended school to pick up the younger children. The father says he wants X to attend (omitted) Secondary College next year.

16. The father deposes that the Department interviewed X on Wednesday, 8 July 2016 and the following day the Department told him that they decided that X should not see the mother. The Department made a protection application to Children’s Court of Victoria (“Children’s Court”) on 15 June 2016. The father says that when he read the reports from the Department he was horrified as he was unaware of the other reports to the Department.

17. The first return date was 27 July 2016. On that occasion I made orders for an Independent Children’s Lawyer to be appointed for X. I directed that a copy of the orders be served on the Department. I also made a notation is that the Department had indicated it would withdraw the Children’s Court proceedings it had commenced noting that this Court would remain seized of the matter and requested that the department continue the support services it has in place for X as referred to in the disposition report dated 5 July 2016 at [2].

18. The mother filed a further affidavit on 19 September 2016. She denies the father’s allegations of abuse. She says the neighbour the father talked is being monitored by the Department with respect her own child and is not trustworthy.

19. The mother says that she was desperate to see X and prepared a text to send to one of X’s friends. She says she decided not to send the message and believes that the younger son A who plays on the iPad accidentally sent it. She expresses regret for sending it as she is aware that she cannot contact X without consent.

20. The mother deposes that in addition to the supervised visits organised by the Department the father allowed the mother have to have two overnights visits with X which were not supervised.

21. The mother’s sister Ms M affirmed an affidavit filed on 15 September 2016 offering to supervise time between X and her mother. She and her husband have six children. She lives near the mother’s home X is familiar and comfortable with her home.

Material from the Department

1. In the matter before me on 20 September 2016 the Department’s disposition report and protection report were tendered.

2. The disposition report records that X is an articulate child who “presents as acutely sensitive to her mother is stressors, and has justified her [sic] some of her mother’s behaviour towards her due to her stress.”

3. The Department records that the mother and her partner’s relationship has had stress or is due to the partner spending significant time working away in the (employer omitted) in northern Australia.  It notes that there was some violence in the relationship but there is been no concerns in this regard since 2010.

4. The report records that X has experienced some trauma in her mother’s care and has experienced significant responsibility in assisting her mother care for the younger children. X has expressed feeling overwhelms at times by the responsibility and does not want that to continue. X has told the Department that she is afraid of her mother and does not want to see her currently and would like to see her when things have improved and the mother is not so angry. She told the Department that she wanted to see her siblings and maternal grandmother. X told the Department she was happy in her father’s care.

5. Stronger Families are working with X and her father have linked in X with the Take Two Berry Street service for mental health support which will also work with X to address the impact of her relationship with the mother on her and will work towards resuming safe contact with her mother.

6. The report identifies the protective concerns with respect to X as including emotional and physical safety and mother’s care, her mental health with respect to the impact on pattern of the history of her mother’s mental health and the focus on X when the mother is angry and the cumulative effect of these incidents. It also identifies a concern about the level of responsibility placed on X to care for her younger siblings.

7. There are protective concerns in relation to X’s relationship with her mother and the impact of current and historical parenting X’s mental health and her sense of safety in her mother’s care. Concerns have been raised from the time X was two years old. In the disposition report which was issued on 15 June 2016 the Department was recommending a nine month family preservation order in the Children’s Court the report sets out a table of the Department child protection history.

8. The protection report was also prepared on 15 June 2016. It summarises the pattern and history of harm and identifies six previous reports to the Department.

9. The first notifications with respect to X date back to 2006 when X was two years old and was exposed to her mother’s suicide attempts. The mother was admitted to a psychiatric ward and then monitored by the crisis assessment and treatment team.

10. In 2010 X was exposed to an incident of family violence between the mother and her partner in 2010 when her partner threw beer bottle and chair at the mother. He was charged with unlawful assault and contravening a family violence intervention order which was in place at that time.

11. In 2011 the mother bit X’s face while she was heavily intoxicated. The Department notes that the reports of abuse coincided with postnatal periods with respect to the mother’s youngest children.

12. The report outlines concerns with respect to X’s school when she was six years old and later when she was nine years old with X having difficulty concentrating and underperforming scores. Concerns were raised that the mother was prioritising her new home rather than assisting X.

13. The Department received a report on 7 March 2016 raising concerns that X was left at home with A and B whilst the mother attended the gym and that this information was that this was a regular occurrence.

14. The report also refers to the incident on 15 April 2016 and also records that X feels significant responsibility for her younger siblings and that she provides significant support for her mother beyond what is appropriate for X’s age.

15. It records that X told the Department later that the mother did not choke her but put her finger under her chin pushing her chin up and causing her pain and fear. X disclosed worrying about her mother and her mother’s high stress with caring for four children. X said that the mother’s partner does not assist. X told the Department she did not mean to lie to police but she initially thought the mother was choking her pushing against the wall and she could not believe that a mother would do that.

16. X spoke about several incidents of concern where her mother has hit her, biting her, giving her a black eye and X spoke about her fear when her mother does this. X says she feels sad and feels the mother does not want her. X disclose having significant responsibilities to care for younger children including getting up in the morning, feeding them, dressing them in getting them ready for school including making their lunches and then waking up their mother to take them to school.

17. The report also records that X wanted to have contact the supervised by her maternal grandmother but that this did not continue as X expressed feeling unsafe.

18. The report records that the decision was made to issue the protection application to monitor and support the parents and address the protective concerns for X through therapeutic assessment counselling and parenting support services.

19. The report records that the mother does not agree that she has caused significant harm to X and believes that X should be returned to her care.

20. The Department records that X needs therapeutic support to address her mental health and sense of self-worth and that this will assist her process what has happened with her mother and what needs to happen to make her feel safe to see her mother.

21. The Department has no protective concerns with respect to the father’s care of X the X feel safe and happy in her father’s care and regularly attends school and enjoys school.

22. In response to the Notices of Risk filed by the parties the Department prepared a response dated 7 September 2016 which helpfully summarises its involvement with X over the years. The information is also recorded in the Department reports prepared for the Children’s Court proceedings referred to above. The response notes that the mother does not agree that she has caused significant harm to X and believes that X should live primarily with her.  The authors of the report observed “an individual is unlikely to change behaviour if they believe they are correct in their opinions about their children.” The mother regularly contacts the Department for updates about X’s progress. On 30 August 2016 Ms R the Stronger Families support worker and Ms J the Take Two senior clinician visited X and her father at their home. X told them she did not want to see her mother until the mother gets better. Ms J confirmed that she plans engage with X and her mother in dyadic therapy once X feels comfortable to begin that work.  The Department recommends that X remain in the care of her father and that contact with the mother is only supported if the mother engages with mental health assessments and services and X’s take to clinician and only once X is ready for dyadic work to be completed with the mother.

23. The Take Two assessment report dated 23 August 2016 was also tendered at the September hearing. X was accepted into Take Two on 2 August 2016. It is important to note that X’s involvement in this program is that its early stages. Ms J states in her report that she has not contacted the mother at this stage is X is hypervigilant with respect to her contact with the mother and she is concerned for its impact on the therapeutic relationship. She says she will seek further opportunities to contact the mother in the future.

24. Ms J contacted the student well-being coordinator at X's school who reported that there were no academic social or behavioural concerns for X however since the most recent child protection involvement she often appears sad and not usual self.

25. Ms J reported that X is articulate and appears comfortable talking about herself and her family. She was hypervigilant about seeing her mother or her mother’s partner and seeing them unexpectedly particularly in the school grounds. X reported from checking the school car park and streets so she could avoid them. She said she felt upset in the stomach and that she wanted to throw up. Her father reported X being quiet and sad.

26. She observed the father and X being comfortable together also noted that X needed reassurance from her father as X expressed worry about him feeling worried about her. X said she has difficulty trusting adults and believing what they say and she was worried about her father being impacted by seeing her looking withdrawn and sad.

27. Ms J says the child protection documents highlight X accumulation of harm and lack of safety in her mother’s care and that her presentation is congruent with her experience of complex trauma. She refers to the family law proceedings adding to the uncertainty and stress for X and the father. There is no doubt that the proceedings are also stressful for the mother and her family.

28. The report makes various recommendations including dyadic therapy and art therapy as well as fortnightly parenting sessions for the father. It recommends a thorough assessment for safety for X before resuming time with her mother and that that time should be supervised by a third person. It is an intensive intervention service.

Material filed post the September hearing

1. The father filed an updating affidavit on 2 October 2016. He says X is extremely anxious about coming into contact with the mother and her partner when he collected from school. Currently he wakes X at 6.00am as he needs to arrive at work by 7.00am. X comes to work with him until he takes her to school at about 7:45am. The father proposes that X be enrolled at (omitted) Secondary College for year seven in 2017. It is a three minute drive from his home. He says one of X’s friends will be attending that school next year and her friend’s family live within walking distance of his home. He has made arrangements with that family for X to spend time at their house in the morning and they will take her to school and will collect her. The father says he will also be able to collect X from school as he has flexible arrangements with his employer and his employer is happy for him to leave early as he works through his breaks. The father has not provided the details of the friend as he is concerned that the mother may contact that friend given her previous conduct.

2. The father also refers to an incident involving Mr Y (who was the maternal grandmother’s partner) and the maternal grandfather. The father says the maternal grandfather has been putting a lot of pressure on X to see her mother.

3. The father says that he supports X having contact with her siblings but that this needs to be managed in conjunction with Take Two.

4. The mother filed a further affidavit on 18 October 2016. She sets out the reasons why she proposes that X remains at her current school and opposes the father’s proposed school. She expresses concern that X will become further isolated and will feel different from her siblings and cousin who be attending (omitted) College next year. She also objects to X being in the care of friends rather than the father or herself and notes that X’s current school also has before and after school care.

5. The mother says she wants to see X as soon as possible and wants X to see her siblings. Her sister is willing to supervise time. The mother says X has a close relationship with her aunt.

6. The mother has engaged with the enhanced maternal and child health nurse Ms L but that has ceased because Ms L does not feel that ongoing engagement is necessary. She engaged in five home visits. The mother is also enrolled with the circle of security parenting program which is an eight-week program which commenced on 13 October 2016. The mother is seeing a psychologist Ms D.

1. The mother expresses concerns that X sent a message to a friend saying she wanted to commit suicide which the father referred to in his affidavit. She says X has never shown any signs of wanting to commit suicide in her care and is concerned that this has happened in September 2016 after a significant period in the father’s care. This comment of the mother’s is concerning because it does not acknowledge any of the serious concerns raised by the Department relating to X’s time in her care rather seeks to blame the father.

2. It is clear that the mother feels that the father has been inappropriately encouraging X in these matters and says as much with respect to the father taking X to the police station to make reports against her.

3. The mother says she has spoken to Ms J and is concerned that all of her sessions have occurred in front of the father and that this may be placing pressure on X. She feels X should talk to someone independent in the absence of the father. She says that Ms J has told her that she will not meet with her because it would be a conflict of interest it concerns the mother as she thought she was to engage wants X was ready for dyadic work. The report from Take Two certainly makes this clear it is also clear however that it is very early days with respect to the therapeutic intervention.

4. The Independent Children’s Lawyer filed an affidavit by Ms J. She is the Senior Clinician at Take Two and an art therapist. She annexed the initial assessment report dated 23 August 2016, referred to above. She also annexed an updated report dated 17 October 2016.

5. Ms J says the Take Two Stronger Families program is part of the family preservation service involving various agencies. She is providing weekly individual therapy for X and dyactic therapy for X and her father. She plans to engage in dyactic therapy with X and her mother when X is ready for that.

6. Ms J says X presentation is congruent with her experience of complex trauma. She experiences moderate fear and hypervigilance towards the mother and her partner, emotional withdrawal, flashbacks, low self-esteem, profound sadness and worry about the future. X’s experience of trauma has impacted on her sense of safety, ability to trust adults and her self-esteem. The therapy is aimed at helping her recover from trauma. X’s emotional and physical safety and her feelings and thoughts about resuming contact with her mother and siblings and other maternal family members needs to be prioritised. She recommends initially when it is deemed safe for time to resume that it be supervised by a third party other than family members or friends. She encourages the mother to engage in her own support services which will be important when work is done to repair her relationship with X. She believes X will benefit from continuing to participate in the program and her family members will benefit from psycho education about childhood trauma and its impact.

Hearing on 21 October 2016

1. The approach the mother’s counsel took on this occasion was concerning. The only counsel who was also present for the previous Court appearance was the Department’s representative Mr Foo.

2. The mother’s counsel pressed for an urgent family report and was critical of Ms J’s qualifications.  She referred to the disclosure X made and heard later admission that she lied to police but did not refer to the further disclosure X made in that same report. She referred to the fact that there was to be a clinic report is part of the Children’s Court proceedings but that that did not go ahead.

3. Significantly the mother’s counsel characterised this case as a wishes case and not a risk case as X had retracted the most significant allegation and because there are no protective concerns with respect to the mother’s three younger children. That submission is not based on the evidence. It ignores the historical as well as the current protective concerns for X. It does not follow that because there are no protective concerns for the younger children there can be no protective concerns for X.

4. She submitted that the mother’s concern is that X is under pressure on adverse influence from her father with respect to her wishes and refers to the evidence before the court currently as being “woefully inadequate”. She refers to Ms J’s reference to relationship repair in her latest report but is critical of it being an absence of actually undertaking that work. That ignores the fact that X’s therapy only commenced in August 2016. The mother’s counsel submitted that the mother’s relationship is at risk of languishing and nothing has been done since April to reunify her with X. She also ignores the fact that this therapy was not commenced with family law proceedings in mind. No one is suggesting that a family report should not be ordered. The issue is the timing of it.

5. The mother complains that Ms J has not engaged with her. The mother alleges that when she contacted Ms J she told the mother she could not talk to her as it would be a conflict of interest. The mother may have misunderstood her. The reports from Ms J clearly state that her intention is to engage with the mother and X when X is ready. That may well be a long way off.

6. She proposed that she commence having supervised time together with X’s siblings each Friday from after school until 730pm. She talked about the mother wanting to be present to keep the thread of a relationship alive while the investigations continue.

7. The mother’s counsel was also critical of the Department’s response to the Notices of Risk complaining that it was a summary and was not prepared by the individual authors. That complaint is misplaced. The requirement particularly with respect report that dates back to 2006 for individual authors to prepare reports is unrealistic it would be costly for no good purpose. These proceedings are at the interim stage. There will be an opportunity to test the evidence in due course. The Department’s summary as well as the presence of the Department on two occasions as amicus has been helpful to the Court.

8. The father’s counsel objected to the mother’s counsel’s approach and complains that it was misleading with respect to X’s allegations and was a whitewash of what had actually occurred. Significantly the mother does not address the concerns that are raised in the protective reports in any of her affidavits which go beyond what she may see as isolated incidents of physical discipline or abuse. Concerns are also raised with respect to the parentification and an unreasonable reliance on X to care for the younger children.

9. The father’s counsel submitted that the mother’s submissions were focused on the mother’s needs and were not child focused and did not address the fact that X is reported more on one occasion that she lives in fear of her mother and that there are multiple concerns raised reports and a need for X to feel safe. Currently X did not feel the contact would be safe even if that was supervised.

10. The father’s counsel was critical of the mother not subpoenaing her own hospital, police and counselling records and not providing a psychological report. He refers to X’s expressed desire for her mother to get better so that she can resume contact with her.

11. The ICL supported the father’s submissions and expressed concerns about the tone of the submissions made on the mother’s behalf which do not acknowledge the child protection history and completely minimises the concerns raised for X. There is no suggestion that the father is behind these concerns and that there is a history of complex trauma. The mother’s submissions were only focusing on her own needs and not X’s. They tried to deflect from the serious allegations made against her

12. The Department’s legal representative submitted that this is an accumulation of harm case. There have been two substantiations of emotional harm to X in the mother’s care. The order for a clinical report was made in July 2016. The mother did not oppose the Department withdrawing from the Children’s Court proceedings.

13. The ICL and the mother’s criticism that the ICL had not provided material to Ms D saying the ICL had contacted the mother’s solicitor and the mother had not returned to the ICL’s questionnaire with the contact information.

14. The issue of the timing of family report was raised on the previous occasion where the legal representative for the Department submitted that there was a risk of X being subjected to systems abuse given the fact that she had recently been interviewed by police, two protection workers and is now engaged with Stronger Families and the workers there including Ms J. He submitted that it would be dangerous for X’s well-being for a family report to be prepared now. The father and the ICL also opposed a family report being ordered on an urgent basis.

X’s school

1. The mother’s counsel argued that X should remain in her current school. The evidence from the school is that X doing well and it would be a massive change for X. The mother says X struggled to previous school and is doing much better at the current school. She has a younger brother attending school and has friends at that school. She refers to the father’s evidence that X has not been late to school since in his care and that whilst the father says X is fearful of running into her mother or being removed that has not happened and there are now orders in place.

2. X has reported her fear of running into her mother and partner to the counsellor in addition to the father. Whilst the school has no concerns for X’s academic, social and behavioural progress, the school counsellor did observe that X has been sad.

3. The father’s counsel referred to the mother’s attempt to contact X through her friends and X’s fear of running into her mother and a partner at school. He refers to the fact that X is in the father’s full-time care and that X needs a break from the maternal family.

4. Realistically there to be no suggestion that at least in the short term X will not remain in the father’s care.

5. The ICL supports X changing schools as there is no prospect of X returning to her mother’s care in the short term.

Considerations and future directions

1. The mother’s counsel’s approach was inappropriately adversarial in what is a sensitive parenting matter. Division 12A of the Family Law Act 1975 (Cth) (“Family Law Act”) applies to this case.    The approach was unhelpful and it is of significant concern that the mother’s case was characterised as about wishes in the face of all of the evidence and concerns before the Court to date. It is common in interim proceedings that the Court is faced with competing allegations and little evidence from sources other than the parties. That is not the case here. The comments of the Full Court of the Family Court in Redmond & Redmond [2014] FamCAFC 155 at [21], [22] and [24]:

   21.    …. there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.

   22.    This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.

   …

   24.    Here, given that the disputed issues of fact were of central importance to the child’s welfare it was necessary for Forrest J to weigh the probabilities and to determine whether controversial assertions ought be acted upon.  …

2. In Deiter & Deiter [2011] FamCAFC 82, where the Full Court said at [61]:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…  X’s best interests of paramount consideration. The Court has the benefit of considerable amount of information from the Department. This case cannot be characterised as a wishes case. There is nothing to suggest in the material to date that the father has acted in a matter other than being concerned and protective of X’s welfare. It is of significant concern that there is a long child protection history with two incidents of substantiated harm.

3. The best interests of X is the paramount consideration. Given the nature of the allegations I am obliged to place more weight on s.60CC(2)(b) than s.60(2)(a) of the Family Law Act 1975. I have considered the relevant s.60CC considerations. X has expressed clear views to the Department and the ICL. At this interim stage X will remain in her father’s sole care and will only see her mother and extended family if she expresses a wish to. That may well mean that she does not see her mother, her siblings and her maternal grandparents for the next several months. There are real concerns raised about the mother’s parenting capacity with respect to X particularly with respect to providing for X’s emotional and psychological needs.

4. It would be counterproductive to order a family report at this time. There is a high likelihood that the report would recommend a further report being prepared once X’s therapy is much further down the track. Whilst it is understandable that the mother is keen for matters to progress quickly and for her to recommence spending time with X, moving too quickly towards that goal in light of the material before the Court currently, which I acknowledge is untested, is likely to be detrimental to X and may set X’s relationship with her mother back even further. I do not see an acceleration of this case as being in X’s best interests despite the uncertainty X feels because of the Court proceedings. The kind of therapy that X is engaged in is not a short-term.

5. X is 12 years old. Her relationship with her mother, siblings and external maternal family is not going to be irreparably damaged by there being a break for X in seeing her maternal family. To the contrary if X is forced to spend time with her mother and maternal family before she is ready there is a real possibility that X will resist future attempts by the mother and her family to spend time with her.

6. I cannot ignore X has expressed views to the father, the Department and the ICL. I cannot ignore X expressing feelings of fear attending school and her desire not to spend time with her mother and maternal family currently. It is of some significance that X is not saying she does not want any relationship with them at all. Rather she needs some breathing space and also wants her mother to get assistance. X is undergoing intensive therapy which can be emotionally draining and confronting at times. It is important that the therapy is given a chance to work. Ms J makes it clear that part of her aim is to engage in therapy between the mother and X. However she has not put a time frame on when that should commence and that is only appropriate given the early stages of X’s therapy and the fact that it is going to have to be guided by when X is ready. It is too early to predict when that will be.

7. It is in X’s best interests that she remain in her father’s care for the time being and that she not be forced to spend time with her mother and maternal family against her wishes. The previous orders already provide for there to be time if X expresses that wish. Whilst I am satisfied that X has been doing well at her current school she is also expressed fear of running into her mother and her partner and feeling stressed about that possibility. X wants to change school. I am satisfied that X should change school. The father says he intends for X to finish the school year at her current school and start her new school at the beginning of the year. This does not preclude X from returning to her current school in the future if she returns to her mother’s care.

8. The father seeks an order for sole parental responsibility on an interim basis. None of the parties addressed this in oral submissions. This is not a criticism as there were many issues which needed to be canvassed.  As I am making an order permitting the father to change X’s school and given that X is already engaged in therapy it is not necessary to make an interim order addressing parental responsibility. This can be revisited when the matter next returns to court if need be.

9. I will list the matter for mention on 2 February 2017. The issue of the family report can be addressed then as well the progress of X’s therapy and the mother’s counselling. It is not in X’s best interests to vary orders 6 and 7 of the orders made on 20 September 2016 with respect to X spending time with her mother and the maternal family. I am mindful that the result may be that X will not have any contact with the maternal family between now 2 February 2017 including over Christmas.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  27 October 2016