Watson and Anor and Fellada

[2018] FamCA 262

FAMILY COURT OF AUSTRALIA

WATSON & ANOR & FELLADA [2018] FamCA 262

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – With whom a child spends time – Best interests of the child – Whether to suspend final orders – Where the paternal grandparents seek time with the child in circumstances where the father is unable to see the child due to a criminal charge – Quantity of time the child should spend with the paternal grandparents – Assessment of risk to the child – Whether the mother should disclose the child’s residential and school addresses – Where final orders exist that restrain either party from changing the child’s residential or school address – Where the mother should disclose to the Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 69ZW

1st APPLICANT: Mr A Watson

2nd APPLICANT: Mr B Watson

RESPONDENT: Ms Fellada

INDEPENDENT CHILDREN’S LAWYER: Silkwoods

FILE NUMBER: ADC 2941 of 2014

DATE DELIVERED: 27 April 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 April 2018

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms Dickson

SOLICITOR FOR THE 1ST APPLICANT: Tindall Gask Bentley

COUNSEL FOR THE 2ND APPLICANT: Ms Lewis

SOLICTOR FOR THE 2ND APPLICANT:	Barnes Brinsley Shaw Lawyers
COUNSEL FOR THE RESPONDENT:	Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Silkwoods

Orders

1. That Orders 2, 3, 4, 5, 6, 11, 12, 13, 14, 15 and 16 of Orders made 24 August 2016 are suspended.

2. That the paternal grandparents spend time with B born … 2012 (“the child”) :-

   (a)        From 10 am to 4 pm each fourth Sunday commencing 10 June 2018;

   (b)Such further and other times as may be agreed between the paternal grandfather and the mother.

3. That the paternal grandparents be restrained from allowing the child to have any contact or communicate with the father.

4. That handover shall be effected to and from a police station that is able to accommodate the handover arrangements in or nearest to the suburb in which the mother and child reside.

5. That the mother be restrained and an injunction granted restraining her from allowing or permitting the child to attend or participate in any counselling or psychological treatment with G Group and/or Child and Adolescent Mental Health Services or any other person or organisation unless agreed between the parties or as ordered by this Honourable Court SAVE AND EXCEPT as may be requested by the Independent Children’s Lawyer on the following terms:-

   (a)That the Independent Children’s Lawyer determines counselling or therapy is warranted and should be undertaken;

   (b)That such counselling or therapy be undertaken with such counsellor or therapist as nominated by the Independent Children’s Lawyer;

   (c)That if counselling or therapy is undertaken it shall be at the joint expense of the parties.

6. That the mother forthwith advise the father of the suburb in which she and the child currently reside.

7. That the mother forthwith advise the Independent Children’s Lawyer of the full details of the child’s residential address and current school.

8. That the mother be restrained and an injunction is granted restraining her from changing the child’s current place of residence and school without the consent of the Independent Children’s Lawyer or order of this Court.

9. All interim proceedings do stand dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson and Anor & Fellada has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2941 of 2014

Mr A Watson

Applicant

And

Mr B Watson
Applicant

And

Ms Fellada

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Mr A Watson (“the father”) and Ms Fellada (“the mother”) are in dispute as to the future parenting arrangements for B born in 2012 (“the child”).

2. On 24 August 2016, complex and protracted proceedings were resolved by a final order by consent that provided for the parties to have equal shared parental responsibility, the child to initially live with the mother but spend increasing time with the father until 10 June 2020 whereupon the child will live with the parties in an equal shared care arrangement.

3. The orders currently provide that the child should spend time with the father each week from the conclusion of school Wednesday to the commencement of school Thursday and in each alternate weekend from the conclusion of school Friday to the commencement of school on Monday.

4. The parties further agreed that each school holiday period would be shared.

5. The mother advised the father on 11 August 2017 that she would not comply with the order enabling the child to spend time with the father and that her decision had been based on advice received from South Australia Police (“SAPOL”).

6. Until the father’s time ceased, he contends that his time with the child was uneventful.  For her part, the mother considers that until she received advice to do otherwise she complied with the orders.

7. The father filed an Application for Contravention on 23 August 2017 alleging that there had been three breaches of the final orders 12, 16 and 23 August 2017 respectively.  The common particulars of the alleged contravention is that the mother, without reasonable excuse, refused to facilitate the child spending time with the father.

8. The father also filed an Initiating Application on 23 August 2017 which sought by way of final orders that the mother attend a parenting course pursuant to s 70NEB of the Family Law Act 1975 (Cth) (“the Act”) and that there be makeup time, that the mother forthwith deliver up the child to the father and in the event of the mother’s failure or refusal to do so that a recovery order pursuant to s 67U of the Act do issue.

9. The interim orders sought were in similar terms to the final orders, but the father sought a further four year extension from the date of the application during which each of the parties were to be restrained from removing or attempting to remove the child from the Commonwealth of Australia.

10. The father filed a further Contravention Application on 26 October 2017 to cover the period from 26 August 2017 to 25 October 2017 during which he alleges that the mother refused to facilitate the child spending time with him.

11. On 27 September 2017 Judge Cole listed the contravention application for hearing on 27 April 2018 and ordered that pursuant to s 69ZW the Department for Child Protection (“DCP”) produce relevant documents that relate to the following:-

    a)Copies of notifications regarding abuse allegations or relating to the child;

    b)Any assessment or investigation of such abuse allegations;

    c)The outcome or findings of such assessment and investigations;

    d)Copies of any reports received by DCP in the course of investigating the notifications.

12. A further s 69ZW order was made directed to SAPOL to produce the following:-

    a)Copies of any reports or notifications of child abuse or allegations of family violence involving either the father, the mother or the child; and

    b)The outcome or findings of any such investigation including antecedent reports for each of the parties.

13. Following a perusal of the s 69ZW reports, the father denied that he had assaulted the child, acted inappropriately or had conducted himself in such a way as to present a risk to the child.  The father specifically denied that he had facilitated or allowed the child to watch age inappropriate movies, or that he had sexually abused the child.

14. On 30 October 2017 the mother filed a Notice of Risk with the particulars of alleged abuse based upon an allegation by the child to the mother on 21 July 2017 that “Daddy hits me”, “Daddy doesn’t like me” and “Daddy calls me a stupid idiot”.

15. The mother provides in the Notice of Risk that on 11 August 2017 Detective  C, a family violence and child abuse investigator with SAPOL told the mother of an investigation being undertaken alleging the father was:-

    (1)The father drinking alcohol every night and giving alcohol to [the child] and her refusing to drink it.

    (2)The father showing [the child] a gun and him having six (6) guns at his home.

    (3)The father sitting on [the child] on the couch in the lounge room at his house and [the child] crying and asking him to stop.

    (4)The father watching scary movies and YouTube videos in [the child’s] presence.

16. By Response filed 30 October 2017 the mother sought that the father’s initiating application and contravention applications be dismissed, but did not seek to agitate final orders different to the orders made 24 August 2016.

17. The mother did seek by way of interim relief that the provisions of the final orders made be suspended, that the mother have sole parental responsibility and that the father be restrained and an injunction granted restraining him from coming within 250 metres of the child, her place of residence or her school.

18. The mother contends that the father presents a risk to the child and took active steps to ensure that the child would not come into contact with the father.  As at the date of her Affidavit filed 30 October 2017 the mother had removed the child from kindergarten on 12 August 2017 in case the father attended to see or collect the child.

19. On 15 January 2018 the father was arrested and charged with one count of persistent exploitation of a child. An interim intervention order was issued that same date that listed the child as the protected person.

20. By order made 31 January 2018 Judge Cole considered that the proceedings were complex and given that the parties agreed that a trial would likely exceed five days, the matter was transferred to the Family Court of Australia.

21. On 15 February 2018 Mr B Watson (“the paternal grandfather”) filed an Application in a Case seeking to intervene in the proceedings and that the child spend time with the paternal grandparents as follows:-

    (1)Each alternate week from the conclusion of school on Wednesday or 3 pm until the commencement of school on Thursday or 9 am;

    (2)Each intervening week from the conclusion of school on Friday or 3 pm until the commencement of school on Monday or 9 am; and

    (3)For such further or other times as may be agreed between the paternal grandfather and the mother.

22. The application is supported by his affidavit.

23. The father filed an Application in a Case on 3 April 2018 seeking to:-

    (1)Restrain the mother from allowing the child to attend further counselling or psychological treatment with the G Group (“G Group”), Child and Adolescent Mental Health Services (“CAMHS”) or any other person or organisation unless agreed by the parties.

    (2)Confirm that the child attends the D School and that the mother resides within a 20 kilometre radius of the said school.

    (3)That the mother provide a copy of the G Group Report if in her possession, but if not then to use her best endeavours to obtain a copy of the report.

24. The mother filed a Response on 17 April 2018 seeking a suspension of the final orders made 24 August 2016, that the child live with her and she have sole parental responsibility and that the child be permitted to attend or participate in counselling with G Group or CAMHS provided that such counselling or therapy is not conducted on the basis that the allegations against the father are proven.

25. The mother’s alternate position is that if the counselling is not permitted with G Group or CAMHS then the child should attend upon such therapist or counsellor as may be nominated by the Independent Children’s Lawyer (“ICL”).

HEARING ON 4 APRIL 2018

1. The father and the paternal grandfather’s applications were listed for hearing.  The parties and the ICL were represented by counsel.

2. There was uncertainty as to the status of the G Group Report.  The importance of the document was considered to be the extent to which it would provide the particulars that underpin the criminal charge of sexual exploitation of a child.

3. It was not known whether the allegations that had been made by the mother in August 2017 from various notifications as appear in the s 69ZW documents are the basis for the charge.

4. Annexure “A” to the Affidavit of the mother’s former solicitor filed 15 November 2017 is correspondence from Detective C dated 15 November 2017.

5. The contents confirm that SAPOL are undertaking a child protection investigation in respect of the child involving alleged offending by the father.  The following is relevant:-

   As part of this investigation I have secured the services of the [G Group (“G Group”)] to conduct a forensic interview of [the child].  To ensure this process is done in a manner suitable for the criminal investigation process and to protect [the child’s] well-being, it is crucial [the child] does not have contact with her father until this interview takes place.  A specific date has not yet been provided by G Group but it is anticipated it will be conducted prior to Christmas.  Please note G Group do not facilitate these interviews for every investigation involving a child under the age of 7 and they will not conduct a forensic interview with a child if that child is still having contact with the alleged perpetrator.  I will be unable to properly investigate this matter if G Group are unwilling to conduct this interview.

6. Interviews with the child occurred on 27 and 29 November 2017.  The records of interview have not been provided either as a copy of the interview or by inclusion in declarations to be provided to the father setting out the circumstances that underpin the alleged offending.

7. It seems that an assumption has been made that if a record of interview has been conducted with the child then a report should follow.

8. Counsel for the mother urged that the Court take a cautious approach in considering the application of the paternal grandfather.  Whilst it was not suggested that the paternal grandparents were in any way involved in the alleged offending or that they were complicit or supportive of the father, until particulars of the offence were disclosed, it could not be excluded from consideration that the premises of the paternal grandparents might have played a part in the alleged offending.

9. The Court was concerned that given the father had been charged on 15 January 2018 that none of the parties nor the ICL have been made aware of the particulars of offending.

10. I adjourned the proceedings to enable the parties to undertake the following:-

    ·Use their best endeavours to ascertain when and if the G Group Report would be released.

    ·Ascertain the future conduct of the criminal proceedings.

    ·Determine whether SAPOL are able to confirm that the paternal grandparents are in some way implicated.

    ·To give the mother an opportunity to file answering documents by 17 April 2018.

PARTICULARS OF THE CRIMINAL CHARGE

1. The parties and in particular the father are not much further advanced in understanding the particulars of the charge.

2. SAPOL was the subject of an order made in the Magistrates Court to provide particulars of the charge by 11 April 2018.  That has not yet occurred.

3. The next relevant court date is in September 2018.

4. The father filed an Affidavit of 11 April 2018 seeking to provide the Court with his understanding of the criminal proceedings.  At the time of filing the affidavit there were two concurrent proceedings namely, the interim intervention order and the charge of persistent exploitation of a child.  The intervention order proceedings are now dismissed.

5. The father is subject to bail conditions and the paternal grandfather agreed to sign the father’s Guarantee of Bail on 15 January 2018. The paternal grandfather has read and considered the Police Apprehension Report dated 17 January 2018 and an Affidavit of Detective C dated 17 January 2018 both in respect of the charge against the father.

6. The father was interviewed prior to his arrest.

7. On the day of arrest the father’s home was the subject of a comprehensive search and a quantity of electronic equipment including the father’s laptop, mobile phone and other electronic devices were seized.

8. The father refers to the Police Apprehension Report and the allegation made by the child during the G Group interview that:-

   … during both forensic interviews she made disclosures about the accused touching her on her “…”. She explained “…” is the … word she uses for her “private area” …

9. It is reported that the child alleged that she had been touched on her “…” on more than one occasion and that the father “did bad things to her all the time”.  It is further recorded that the child is afraid of the father as he has “tried to kill her”.

10. It appears at least some of the allegations were made to the mother who reported to the police that she had been concerned for some time as to the possibility that the father may have engaged inappropriately with the child.

FINAL ORDERS MADE 24 AUGUST 2016

1. The father agrees that paragraphs 2, 3, 4, 5 and 6 should be suspended until further order.

2. The father does not consent to a suspension of orders 11, 12, 13 and 18 of the orders.

3. The current status of the child’s schooling and the related issue of her current whereabouts require determination.  The mother acknowledges that she has moved her place of residence and the child now attends a different school. The mother will disclose the detail of the child’s residence and school to the ICL but refuses to disclose that information to the father.

4. Accordingly, the extent to which there are any safety concerns that might arise from the father ascertaining the child’s whereabouts need to be considered.

5. The mother does not seek to suspend the orders of injunction in paragraph 18 of the orders.

6. The mother seeks that she have sole parental responsibility for the child.  The father seeks to retain the current order.

7. The determination of parental responsibility is a consideration of what is in the best interests of the child and is informed by the primary and additional factors in s 60CC(2) and (3) of the Act.

APPLICATION OF THE PATERNAL GRANDPARENTS

1. The mother and ICL do not oppose the intervention by the paternal grandfather.  The mother is opposed to any order that the child spend time with the paternal grandparents, but if it is to occur then only in circumstances of supervision provided by a children’s contact service.

2. The ICL considers that there is an advantage to the child in maintaining a relationship with the father’s family providing it is safe to do so.  The ICL considers that the paternal grandfather’s proposal represents an excessive level of time and that it would be premature to introduce overnight time.  The broad submission on behalf of the ICL is that there should be regular time spent between the paternal grandparents and the child, but it should be limited to some few hours during the day and with less frequency than is sought.

3. The paternal grandfather contends that he and his wife spent regular time with the child when she was in the father’s care pursuant to the existing orders.  Not dissimilar to the father’s predicament, they have not seen the child since 29 July 2017.

4. The paternal grandfather accepts that he supports his son in the sense that he was prepared to act as guarantor to satisfy the bail conditions.  He is aware of at least some of the allegations, but nonetheless considers that his son is innocent until it is proven otherwise.

1. The paternal grandparents appear respectful towards the mother and seek to reassure the Court that they are mindful of the serious charge that is to be considered and take seriously the need for strict compliance with the bail conditions.

2. The paternal grandfather is prepared to consent to an injunction that in addition to the bail conditions would restrain the paternal grandparents from allowing the child to spend any time with the father.

3. The father does not reside with his parents and there is no circumstance where they would allow that to occur at any time that the child is with them.

4. The mother contends that she has had little or no contact with the paternal grandparents since separation in February 2014.  She refers to some conflict at the time of separation relating to their support of the father and an argument as to the extent of items that the mother was able to remove.

5. She also considers that the paternal grandfather may act aggressively towards the child if discipline is required.

6. She considers that the following may well be experienced by the child:-

   (1)Time with the paternal grandparents would increase the child’s anxiety and distress.

   (2)The child’s behaviour may regress.

   (3)The paternal grandparents may bring the child into contact with the father.

   (4)The paternal grandparents may disclose details to the father such as where the child is living or attending school or discussing the father’s criminal proceedings.

   (5)The paternal grandparents may not return the child to the mother.

   (6)The paternal grandparents may physically discipline the child.

7. The mother also equates the grandfather’s preparedness to sign a guarantee for the father’s bail as evidence that he has an ongoing relationship with the father and has the potential to ignore orders and bring the child into contact with the father.

8. The paternal grandparents were involved in the family assessment in May 2016.  The following paragraphs of the update family report dated 11 May 2016 are of assistance:-

   50.Upon the father’s return with his parents, [the child] quickly kissed and hugged her mother goodbye before running into the arms of her grandmother.  [The father] thanked [the mother] and she respectfully responded prior to leaving.  [The child] then immediately commenced shared play with her father and grandparents.  This resulted in lots of shared laughter and all was a delight to observe.

   51.The paternal grandparents presented as polite, respectful and caring adults.  They presented with no obvious health issues, but rather physically capable adults who were active in their play with [the child].  They also appeared to have a loving, strong and meaningful attachment to [the child].

   And then at [61]:-

   Finally, there appeared no reason to prevent [the father] from relying on his parents from time to time in assisting him to meet the needs of [the child].  They presented as capable, emotionally mature and intelligent adults who had a strong, meaningful and loving attachment to [the child].  [The child] appeared to enjoy her time in their care, and was considered likely to benefit in the long term from maintaining a meaningful attachment to her grandparents through fun times shared together.  Given it was the Consultant’s understanding that [the father] was only likely to require his parents to facilitate handovers in the mornings on his behalf on some occasions, time to time, as opposed to a regular occurrence, this was not a significant concern for [the child], and nor was it considered necessary for the Court to prevent this.

9. The child has not seen either the father since August 2017 or the paternal grandparents since July 2017.  The child is currently aged five years.

10. The mother has conceded that but for the current criminal proceedings there would be no basis for her to seek to set aside the final orders.

11. The mother considers that the police should not be in any way impeded in their ability to investigate and prosecute the current charge.

12. The concern of the police was to ensure that the child was able to undergo a record of interview conducted by G Group.  That has occurred.

13. All parties acknowledge that if there is no substance to the criminal charge then it is in the child’s best interests to resume spending time with the father and by extension, his extended family including the paternal grandparents.

14. The Court is not in a position to make any finding as to whether the father was the perpetrator of sexual exploitation to the child, but of more immediate relevance to a parenting order, whether he presents as an unacceptable risk.

15. Every opportunity has been provided to the parties to present evidence which would suggest that at this stage the paternal grandparents may have some unwitting involvement in the father’s charge.  None has been presented.

16. The father and the child have been the subject of interview by the police.  A charge has been laid.  It is reasonable to assume that if the paternal grandparents were in any way involved then they would also have been the subject of interview or form part of the police investigation.  There is no evidence that has occurred.

17. The next substantive step in the criminal proceedings is a hearing in the Magistrates Court in September 2018.  Subject to any earlier determination that the charge should be withdrawn, the next date would likely be the committal hearing.  Thereafter, the father would be arranged in the District Court and presumably there would be a lengthy delay in the matter being listed for trial.

18. Depending upon the outcome, the matter would then need to come back before me for hearing.  It is reasonable to consider that any comprehensive consideration of the future parenting arrangements in respect of the child would not take place until well into 2019.

19. The Court is alive to the risk that litigation may present to the child.  It is important to set the balance between the need for the child to maintain a meaningful relationship with the father, but to ensure that the child is safe.  The latter must take precedence over the former.

20. It may be a significant psychological or emotional risk to the child to embark upon a process of attempting to restore a relationship between the child and the father some considerable time in the future if the outcome is that the father does not present a risk to the child.

21. It is important to the child’s wellbeing that a balance is maintained.

22. The paternal grandparents impress as responsible people who have the best interests of their granddaughter at the forefront of their actions.

23. They have had a long association with the child and the observed interaction during the family assessment in May 2016 was positive.

24. No adverse inference or conclusion can be drawn by the paternal grandfather’s preparedness to support the father where he intends to plead not guilty and maintain his right of innocence.

25. The paternal grandparents also impress as being respectful of court orders and exhibiting a preparedness to comply.

26. A resumption of a relationship between the child and the paternal grandparents is supported by the ICL.

27. I do not consider that the extent of time sought by the paternal grandfather is warranted.  There is no suggestion that the paternal grandparents should step into the shoes of the father.  They are not a parent and that has not been the nature of their relationship with the child.  They have been supportive of the father rather than being independent and active participants in the parenting arrangements for the child.

28. I consider that the appropriate amount of time for the child to spend with the paternal grandparents is for a period of six hours between 10 am and 4 pm each fourth Sunday to commence after they have returned from their pre-planned holiday.

COUNSELLING FOR THE CHILD

1. The father seeks that the mother be restrained from allowing the child to participate in further counselling with G Group, CAMHS or any other organisation other than as may be agreed.

2. The mother seeks to continue with the child’s counselling as currently undertaken with G Group, or in the alternative, that the child be able to engage in counselling or therapy with the counsellor or therapist as may be nominated by the ICL.

3. The orders sought by the father are premised on his concern that if the child is being counselled for purported trauma and distress caused by the father’s alleged sexual misconduct with the child, then if as he contends there is no substance to the allegations, the counselling may result in an erroneous belief being reinforced.

4. A notation to the final orders is a relevant consideration:-

   C.[The child] presently consults with [Ms E], Social Worker, and in the event that either party seeks for [the child] to consult with any alternative social worker or psychologist then they must first obtain the consent of the other party.

5. There is some history to the child engaging in psychological therapy.

6. Paragraph 19 of the family report dated 11 May 2016 records that the mother sought therapeutic involvement from a counsellor to assist the child in dealing with her distress and upset following the child’s commencement of overnight time with the father.  Apparently the child had received therapeutic support from her counsellor for a period of two years, at first on a fortnightly basis and then reducing to a monthly basis.

7. The father did not accept the mother’s position in relation to the child’s purported anxiety and distress.

8. The father considered that there was no need for the child to engage in ongoing therapeutic intervention.  He claimed that the mother did not inform him of the visits and it was his concern that the ongoing counselling was not appropriate for the child given her age and the potential to reinforce a negative view of the father.

9. In the parties resolving their differences, the notation to the order appears to place reliance on the evaluation and recommendations of the family consultant as contained in the report.

10. The observations of the family consultant was that the child presented as a “happy, well-adjusted and thriving young child, who easily transitioned between the parties, easily settled in the care of the Consultant to engage in discussion, and happily left in her father’s care”.

11. The following appears at [55]:-

    If [the mother’s] claims before the Court about [the child’s] level of anxiety were accepted, then it would be understandable that she was as apprehensive as she was about [the child’s] time spending arrangements with her father.  However, with the information at hand, there appeared to be no independent evidence to support these claims.  If the Court was to accept [the mother’s] position regarding [the child’s] anxiety, then it would be recommended that the way this issue is managed is not by reducing her time with her father, but involving [the child] and [the father] in family therapy to overcome these issues.  However, with the information at hand, it was not the opinion that [the child] was in need of this family therapy.

12. The family consultant recommended that there may be some advantage in the child’s therapeutic intervention continuing with Ms E provided that the father was able to participate in the process.

13. The mother does not provide assistance as to the focus of the counselling that has already been undertaken with G Group.

14. The mother relies upon a recommendation from her G Group counsellor that the child access counselling due to her “high levels of anxiety and the circumstances of her current situation”.

15. If the focus of the proposed counselling is to deal with issues in respect of the child’s ongoing distress and a continuation of the general acceptance by the parties that from time to time the child may be assisted by a therapeutic process as contemplated in Notation C to the order, that would need to be further explained by reference to the cause of the distress.  The mother contended at the time of the final orders that the child needed assistance to more easily make the transition of increasing time to the father as contemplated by the parties’ agreement.  It may be that the child is distressed and anxious because the orders have been effectively suspended for some time.

16. If the basis upon which ongoing counselling is sought is to deal with the child’s reaction to the alleged abuse, then that requires a more cautious approach.

17. The mother supports the child having an ongoing relationship with the father provided it is safe to do so.  At present she considers that the father may present as an unacceptable risk.  If there is no substance to the allegations then it is conceded that the parties, at least initially, return to the terms and conditions of the final orders.

18. The child has apparently been in a therapeutic environment for the majority of her life.  No attempt has been made to provide a report as to the nature and focus of the counselling as proposed by the mother acting upon the advice of G Group.

19. For her part, the mother now concedes that any further counselling for the child should not be conducted on the basis that the allegations against the father are proven.

20. What is not known, but reasonably assumed, is that the need for counselling arises from the allegations of abuse.  If that were not the focus, then there would be no need for the child to seek counselling other than as the parties have already agreed.

21. The mother does not know of the particulars relating to the criminal charge laid against the father.

22. There is no G Group report that would assist and there is now some general consideration that the parties and their legal advisors may have been in error in considering that a G Group report had been prepared but not yet released to the parties.

23. My focus must be to consider the best interests of the child.  I am not able to do that if in the absence of agreement between the parties evidence has not been presented as to the basis upon which ongoing counselling for the child is indicated or recommended.

24. Counselling should not be considered in all cases as a position of first response.  The circumstances in which the child finds herself are complex and not of her making.  If therapeutic intervention is required it must be carefully structured to target not just anxiety experienced by the child, but the basis for that anxiety to ensure that the process is to the child’s ultimate benefit, not detriment.

25. A better way forward is that the child be permitted to participate in counselling or therapy upon such terms and conditions as the parties may agree or as may be considered necessary by the ICL.

26. The parties are properly to consider whether therapeutic intervention is required generally, but the ICL has a specific focus namely, to promote the interests of the child as may be affected by the litigation.

SHOULD THE CHILD’S SCHOOL AND CURRENT ADDRESS BE DISCLOSED?

1. The father seeks that the child attend D School and that the mother cause the child to reside within a 20 kilometre radius of the school.

2. The mother is opposed to the father’s application.  She has taken steps to remove the child from the D School and they now live at a different address.

3. The mother asserts that her decision to change the child’s address and school was made on the advice from and with the support of police and out of concern for the child’s safety.

4. The mother does not wish to disclose her current address or the child’s school, but will provide information to the ICL on the condition that it is not disclosed to the father.

5. The catalyst for the mother’s conduct is to do with safety concerns arising out of the nature of the allegations and the charge against the father.

6. The difficulty is that the particulars of the charge are not known.

7. The father is the subject of strict bail conditions which prohibit him having any contact or involvement with the child.

8. It is not suggested by the mother that the father has behaved in a threatening manner towards either her or the child, nor has there been any allegation that the father has attended at the mother’s previous residence.

9. The father’s concern is that the mother has been opportunistic in relying upon the current criminal proceedings as justification for a change in her place of residence which previously had been opposed by the father.

10. It was an important consideration of the parties that the child attend D School with the intention that she would complete her primary and high school education at that institution.

11. The final orders provide that the parties be restrained:-

    18.5. From changing the residence of [the child] outside a 20 kilometre radius of [D School] without providing the other party with no less than sixty (60) days written notice of that intention; and

    18.6. From changing [the child’s] kindergarten and school, from [D School] without the prior written consent of the parties.

12. The structure of the orders was predicated upon the intention of the parties to share the child’s care and to be involved in all aspects of the child’s life.

13. Generally it should be considered important that parents know the circumstances and environment in which their children live and attend school.  It is particularly important where the parties have an expressed intention to co-parent.

14. The circumstances that impact upon the child are in a state of uncertainty.  The criminal proceedings are at an early stage in the process.  The parties have not yet received particulars of the father’s alleged offending, nor have there been any declarations provided which would enable a consideration of the parameters of the father’s offending and what, if any, safety concerns arise therefrom.

15. The Court should always act out of an abundance of caution and the need to protect the child even if orders to give effect to that intention might appear unnecessary to one or other of the parties.

16. The Court cannot ignore that what underpins the current proceedings are the suspended provisions of the final orders.

17. It is reasonable for the father to argue that if the allegations of the criminal charge are found to be without basis and the Court determines that he does not present as an unacceptable risk, his time with the child should be resumed. 

18. The mother has taken unilateral action in changing the child’s place of residence and school without leave of the Court.

19. There is no information as to whether the mother’s actions may have a fundamental impact on the operation of the final orders should the suspension be lifted.

20. In all the circumstances the Court should tread carefully.  Until the full particulars are known, the mother should not be obliged to disclose the precise whereabouts of the child’s residence and school.  The mother should be obliged to disclose to the father and the paternal grandparents the suburb in which the child resides and the full details of the child’s current address and school should be provided by the mother to the ICL.

21. It will be a matter then for the ICL to consider whether the mother’s current arrangements for the child fundamentally impact upon the final orders and to bring such application as may be necessary to assist the Court in making orders that will best serve the interests of the child.

22. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 April 2018

Associate: 

Date:  27 April 2018