Whalan and Allan and Anor

[2017] FamCA 1061

FAMILY COURT OF AUSTRALIA

WHALAN & ALLAN AND ANOR [2017] FamCA 1061

FAMILY LAW – CHILDREN – With whom a child spends time – Where mother seeks orders for sole parental responsibility, for the child to live with her and have no contact with the father or the paternal grandmother – Where father and paternal grandmother seek equal shared parental responsibility, for the child to live with the mother and spend alternate weekend time with father – Where the ICL proposed interim orders for supervision of the father’s time – Where the father and paternal grandmother agreed to the proposal of the ICL at the conclusion of trial –Where the mother claims that the father and the paternal grandmother pose an unacceptable risk of harm to the child which justify no contact orders – Where the child has only spent supervised time with the father at a contact centre since separation – Where the child has not spent any time with the paternal grandmother – Where there is no evidentiary basis that the paternal grandmother poses any risk of harm to the child – Where father may pose some risk of harm to the child arising from his medication regime and his emotional regulation –Where medical experts were of the view that the father did not pose a risk of harm which would warrant no contact orders – Where father’s risk of harm to child could be adequately mitigated by imposing conditions and supervision of time – Where mother’s claim that the father and paternal grandmother pose an unacceptable risk to the child is an indication of the mother’s attempts to expunge the father and paternal grandmother from the child’s life – Where mother would not facilitate a meaningful relationship with the father or paternal grandmother without court order – Where the child will benefit from a meaningful relationship with the father and paternal grandmother – Where parties’ communication would not support equal shared parental responsibility – Where it is in the child’s best interests for the mother to have sole parental responsibility and for the child to live with her – Where the child is to spend supervised time with the father in combination at a contact centre and supervised by the paternal grandmother, in the interim – Where s65L order made.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65L
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692

APPLICANT: Mr Whalan

FIRST RESPONDENT: Ms Allan

SECOND RESPONDENT: Ms Wayne

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 847 of 2014

DATE DELIVERED: 19 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 27, 28, 29 and 30 November 2017

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Lawrence

SOLICITORS FOR THE RESPONDENT:	Preston Law
THE SECOND RESPONDENT:	In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Cope Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. That all previous child Orders be vacated.

Parental Responsibility

1. The mother shall have sole parental responsibility for the child B born … 2008 (“the child”), save and except that the mother shall not relocate the residence of the child away from Town D without the written consent of the father or an Order of the Court.

2. The mother shall, save in the case of a genuine emergency, consult with the father concerning any major long-term decisions she proposes to make as follows:

   (a)She shall give the father fourteen (14) days email or written notice of any decisions she proposes to make, explaining the reasons for the proposed decision and providing where necessary supporting documents;

   (b)The father shall respond within seven (7) days in writing or by email advising his consent or opposition, and in the case of the latter shall explain the reasons for his oppositions;

   (c)If the father opposes the proposed decision the mother shall consider his reasons in good faith and thereafter advise the father in writing or by email of the decision she has made.

Living Arrangements

1. That the child B born … 2008 (“the child”) shall live with the mother.

2. For the next two (2) months, the child will spend time with and communicate with the father and second respondent paternal grandmother as follows:

   (a)With the father at the Town D Children’s Contact Service on two occasions per month on such days and times as may be made available by the Contact Service.

   (b)With the paternal grandmother at the Town D Children’s Contact Service on two occasions per month, that time to occur during the father’s time with the child at the Children’s Contact Service and to be for no more than one (1) hour of that time.

3. That as of two (2) months of the date of this Order and for a period of four (4) months thereafter the father and paternal grandmother shall spend time with the child as follows:

   (a)the time at the Children’s Contact Service for the paternal grandmother shall cease; and

   (b)the time at the Children’s Contact Service for the father shall occur on a monthly basis; and

   (c)on a monthly basis, the father shall spend time with the child for four (4) hours from 10am to 2pm on a Sunday, such time to take place two weeks after the contact at the Children’s Contact Service, with the father’s time to be supervised by the paternal grandmother.

4. That as of six (6) months of the date of this Order the father and paternal grandmother shall spend time with the child as follows:

   (a)The father will spend time with the child at the Children’s Contact Service on a monthly basis; and

   (b)Also on a monthly basis, the father shall spend time with the child from 10.00am to 6.00pm on a Sunday, such time to take place two weeks after the contact at the Children’s Contact Service, with the father’s time to be in the presence of the paternal grandmother, however strict supervision is no longer required.

5. In relation to supervised time at the Children’s Contact Service:

   (a)If the child is unable to attend a scheduled contact at the children’s contact service by reason of ill-health the mother shall ensure that the Independent Child Lawyer is provided with a medical certificate within seven (7) days;

   (b)The parties shall share equally the costs imposed by the Town D Children’s Contact Service. 

6. That on one occasion each calendar year the mother may suspend the father and paternal grandmother’s time under these orders for a period of up to four (4) weeks.

7. The mother may remove the child from the Town D region or from the Commonwealth of Australia for the purposes of a holiday conditional upon the mother providing to the father fourteen (14) days prior to the proposed travel a copy of the child’s return ticket and travel itinerary.

8. The father and paternal grandmother may each communicate with the child through the sending of gifts letters, cards, emails and photographs to the child and the mother will hand those items to the child.

9. The father and paternal grandmother will each communicate with the child by Skype on Christmas Day, Father’s Day, the father’s birthday, the paternal grandmother’s birthday, the child’s birthday and Easter Sunday and in order to facilitate same the mother shall within fourteen (14) days of the date of this Order provide to the father a Skype address and the father shall initiate the Skype call to the child on those days between 9am and 9.30am on a non-school day and between 5 and 5:30pm on a school day, with the paternal grandmother’s communication to take place during the father’s Skype contact.

Contact Supervision and Counselling

1. The paternal grandmother undertaking the role of Contact Supervisor is conditional upon the paternal grandmother attending upon the Independent Children’s Lawyer for the purpose of having the role and obligations of the Contact Supervisor explained to her and filing an Undertaking with this court to comply with those obligations.

2. That for the purposes of facilitating the paternal grandmother fulfilling the role of Contact Supervisor the mother and paternal grandmother must provide to each other their personal mobile phone number for the purposes of making any necessary arrangements for handover for and communication about supervised contact.

3. That within twenty-one (21) days of the date of this Order the mother, the father and the paternal grandmother shall each enrol in and arrange to attend and complete the Parenting Orders Program with Relationships Australia, and each party shall file an Affidavit annexing their certificate of completion within seven (7) days of receipt of same.

4. That the mother, father and the paternal grandmother shall within twenty-one (21) days of the date of this Order attend at Centacare and undertake intake and engage and make arrangements to engage in therapeutic support as follows:

   (a)individually and jointly to improve the co-parenting relationship between the parents and

   (b)individually and jointly to improve the relationship and communication between the mother and the paternal grandmother with the view to the paternal grandmother becoming the Contact Supervisor.

Section 65L Order

1. That in accordance with s65L a Family Consultant be appointed to assist the parents and the paternal grandmother to ensure compliance with these Orders and provide to the parties to these proceedings such assistance as is reasonably requested by those parties in relation to compliance with and the carrying out of these Parenting Orders.

Other Orders

1. These Orders constitute the mother’s authority to the children’s school to provide to the father copies of the child’s school reports and records and information in relation to the child’s progress generally, both on an educational and behavioural level.

2. The mother, the father and the paternal grandmother are each restrained and an injunction issued requiring each of them to refrain from denigrating, criticising or belittling the other parent or that person’s family in the child’s presence and shall remove the child from any circumstance where some other person may be or is denigrating, criticising or belittling the other parent or that person’s family.

3. The mother, father and the paternal grandmother shall each ensure the other parties are forthwith informed and thereafter kept informed of their postal address, Skype address and mobile telephone number.

4. The parties shall communicate with each other solely by email or text message and solely in relation to child matters and shall communicate by phone only in the case of a genuine emergency.

5. The mother, father and paternal grandmother shall ensure that they keep the Independent Child Lawyer promptly advised of their individual compliance or non-compliance with this Order.

6. That the Independent Children's Lawyer have liberty to apply on seven (7) days written notice.

NOTATION:

A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Whalan & Allan and Anor 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 CAIRNS

FILE NUMBER: CSC847/2014

Mr Whalan

Applicant

And

Ms Allan

First Respondent

And

Ms Wayne
 Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the appropriate parenting orders for B, born in 2008, and hence presently nine years of age (“the child”).  For her part, Ms Allan (“the mother”) seeks final orders that she have sole parental responsibility for the child, who would live with her and spend no time with either Mr Whalan (“the father”) or Ms Wayne (“the paternal grandmother”).  She sought to justify such orders on the basis that the father and paternal grandmother present such a risk of harm to the child, as to outweigh any benefits to him having a relationship with them.  In the alternative, in the event that the Court determined that the child should spend some time with the father and paternal grandmother, she proposed final orders that restricted contact to two hours per month of strictly supervised time.

2. Although when the trial before me commenced, the father and paternal grandmother also sought final orders, which provided for equal shared parental responsibility between the mother and father, and for the child to live with the mother, but spend alternate weekend time with the father, together with every Wednesday afternoon and one half of school holidays, by the conclusion of the trial, whilst not expressly abandoning such orders, they indicated that they were in agreement with the proposed orders of the Independent Children's Lawyer.

3. That proposal was not for final orders, but for interim orders, which would prevail for at least 12 months.  Under those orders, the child would live with the mother, who would have sole parental responsibility for him, but would spend time with both the father and paternal grandmother, initially at a contact centre, but then moving to a combination of contact centre supervision, together with monthly time with the father in the presence of the paternal grandmother.  Implicit in those orders was the rejection of the mother’s claim that the paternal grandmother posed a risk of harm to the child in any form, and a further rejection of the mother’s claim that the father posed such a risk of harm, either that he should spend no time with the child, or that such time as he spent with the child required strict contact centre supervision.

4. At the conclusion of the trial I reserved my decision.  These are my reasons for judgment.

THE FACTS

The paternal grandmother

1. The paternal grandmother was born in 1960 and hence is presently 57 years of age.  Her parents separated when she was about 13 or 14 years of age.  She met the paternal grandfather when she was about 18 years of age, and married him in 1979, with the father being born the following year.  That relationship concluded in 1989, and sometime thereafter she met her next partner, who was from Country V. To that relationship was born a girl, and after her birth the paternal grandmother and her husband moved to live in the Country V, together with both children.  In due course, that relationship concluded, at which time both children remained in the care of the partner.  However, the daughter, then aged three, disclosed that the ex-husband had been molesting her, in consequence of which he was charged, albeit acquitted.  Notwithstanding the acquittal, the children and the paternal grandmother moved back to live in Australia.

2. By then the paternal great-grandmother had remarried, and was living in Town D.  She asked the paternal grandmother to come and live in Town D, after she returned from the Country V.  Whilst living there, the paternal grandmother began working on prawn trawlers, leaving the children in her mother and partner’s care.  At some stage, the father advised the paternal grandmother that the maternal great-grandmother’s husband was sexually abusing him, in consequence of which the paternal grandmother spoke to her mother, who said that she would deal with it by speaking to her partner.  Although the father did not raise anything further until after he had turned 18, it transpired that in fact he had continued to be abused by his step grandfather.  In due course, his step grandfather he was charged with 21 counts of sexual abuse of the father, convicted, and sentenced to six years of imprisonment.  It seems likely that sentence was imposed upon him in about 2004.

3. The paternal grandmother has had an interesting life.  In addition to working on trawlers, she has worked on fishing boats based in City F, has been an observer on large fishing vessels, and has provided assistance to refugees.

The father

1. In discussing the paternal grandmother’s background, I have already traversed some aspects of the father’s life.  He was born in City C in 1980, and hence is presently 37 years old.  He moved to Town D with his mother and father when young, but whilst living there, his parent’s relationship failed, and he moved with his mother to live in the Country V, when aged between two and five.  Then he returned to Town D, and lived with his mother, maternal grandmother and her partner.  Mr G, the Family Report writer, recorded in relation to the father in his first Family Report filed 20 November 2015 that:

   [The father] said that his step-grandfather took “any chance he had to molest me.  I tried to tell my mum once.  She raised it with my grandmother who stood by him.”

   [The father] said he tried to end the sexual abuse and that when he was 14 his step-father had visited from the [Country V], and he left to live with him.  He said that he returned to [Town D] at 17 years of age and he had broken down shortly after his return.

   [The father] said “I started self-harming; overdosing.  I should have been dead several times.  I don’t know how I pulled myself out of the hole but it gave me a real sense of “I wouldn’t wish this on anybody.  It messes with your head.  It messes every facet of your life.”” 

2. At that time the father made complaint to the police, in consequence of which his step-grandfather was charged, committed and imprisoned.  However the father did not get the opportunity to personally confront his step-grandfather before he died.

3. As a child, the father had been diagnosed with ADHD and was medicated for it.  He completed schooling to year 11 in the Country V, and later completed a business course.

4. As to employment, after returning from the Country V, he initially worked in hospitality, and also worked on trawlers. 

5. He was about 24 years of age when he commenced a relationship with the mother in 2004.

The mother

1. The mother was born in City J in 1981, and hence is presently 36 years of age.  She relocated with her family to Town D when she was aged about 12, and concluded her schooling to year 10, obtaining work in hospitality.

2. She left home at 16 and moved in with her then partner, to whom she had two children, Ms H, presently 19 years of age, and E, presently 17 years of age.  Eventually she separated from that partner, and around that time began working as a cleaner.  It seems that it was at this stage of her life, when aged about 23, she met the father and commenced a relationship with him.

The relationship

1. As I have indicated, the parties’ relationship commenced in 2004, and they married in 2006.

2. Ms H and E lived with the parties during the course of their relationship.  The father says that he loved both children, and took care of them as though they were his own.

3. B was born in 2008.

4. In June 2011 the father was injured whilst working as a delivery driver. He suffered significant pain and was unable to work due to those injuries. His employment was terminated on 11 November 2011, and it seems as though the father has not worked since.

1. There were problems with accurately diagnosing the injury which the father suffered arising from his work accident.  Ultimately he was diagnosed in April 2012 with spontaneous compression fractures and idiopathic osteoporosis of the spine and hip.

2. By then he was receiving strong medication to help him cope with the pain from his injuries.  The mother thought he was over-medicating, and according to the father, gave him an ultimatum that he either stopped taking the pain medication, or left the home.  In his trial affidavit the father said “[the mother] told me to choose between my pain medication or my family and when I said I could not move without the medication, she ordered me to leave the family home and rang my mother and demanded that she make arrangements for me to join her.”  That was in April 2012, when it is agreed that the parties separated.  B was then about three and a half years of age.

Post separation

1. Initially, post separation the father went to live with the paternal grandmother in Town T. Whilst there he was properly diagnosed and put on appropriate medication by a pain specialist.

2. It appears not in dispute that whilst living in Town T, the father remained in contact with the mother and the child, and was able to amicably communicate with both.  He and the mother would jointly discuss matters relating to the child, and the father would regularly talk to the child on the phone.  The mother sent him photographs of the child, and advised him of what was happening in her and the child’s life.

3. In about July 2012, the mother commenced her present relationship with Mr Z.  At the end of 2012, with the father’s consent, the mother, the child and Mr Z all relocated to Town M in another town.  Whilst they were there, the father remained in contact with the child, albeit it seems as though the telephone contact was difficult, because there was poor reception in the area where the mother was living.

4. In about mid 2013 the mother, Mr Z and the child returned to live in Town D.  Also in 2013 the paternal grandmother was diagnosed with leukaemia, and required six months of chemotherapy.  During that time, the father looked after his mother, and accompanied her to her various treatments.  It seems not in dispute that during this time, the father still remained in contact with the child.

5. By early 2014, the father reports that his pain levels had stabilised, his mother’s leukaemia was in remission, and he was missing any physical relationship with the child.  He therefore determined to relocate back to Town D, and in May 2014, he advised the mother that he had been able to secure accommodation, and would be returning there.  However when informed of this intention, the mother sent a text message to the father, the effect of which was to say that he would need to get court orders if he wished to see his son, and there was no way that the child was ever going to spend a night with him.  Unfortunately, that has set the tone for events thereafter.

6. In May 2014 the paternal grandmother purchased a two bedroom unit in Town D for the father to live in.  The father has remained living in that unit thereafter.

7. In July 2014, the parties engaged in a dispute resolution conference.  In consequence of their negotiations, they agreed for a regime of Skype time between the father and the child, each alternate Saturday between 9:30am and 10:00am, using a mobile phone which the father was to purchase for the child.  The parties also agreed that they would prepare for the commencement of supervised contact, by undertaking an intake interview with the Town D Contact Centre, but the commencement of time there would be the subject of further negotiation at a further conference in about three to six months’ time.  However the Skype arrangement was very short lived, with the mother contending that the father behaved inappropriately during the sessions, by showing the child the covers of video games which she thought were inappropriate.

8. On 27 November 2014 the parties reconvened their conference, but were unable to reach any agreement.

9. Four days later the mother brought an application for a protection order against the father, and a temporary protection order was made against him on 11 December 2014.

10. On 18 December 2014 the father commenced these proceedings, albeit in the Federal Circuit Court.  The mother’s Response, filed 26 February 2015, was accompanied by a Notice of Risk.  It asserted that the father was a risk of sexual assault or abuse, and serious psychological harm, to the child.

11. On 3 March 2015 interim orders were made in the Federal Circuit Court.  They provided for telephone communication between the child and father each alternate Sunday, and expressly permitted the mother to record those conversations.

12. On 1 May 2015, Magistrate Bentley delivered her Honour’s decision in relation to the final hearing of the mother’s domestic violence application.  Not only did her Honour decline to make a final protection order, but she expressly found that the mother “brought this application for the sole purpose of preventing [the father] from having contact with his child B and not because of alleged acts of domestic violence or any genuinely held fear of him.”  I adopt that finding, and indeed all of the findings of Magistrate Bentley.

13. On 31 August 2015 a psychiatric assessment of both parties by Dr X was provided.  He assessed the father as suffering a severe and chronic personality disorder, but had no significant concerns in relation to the mother.  With some reluctance, he opined that the father would be unlikely to ever qualify for anything other than strictly supervised time with the child.

14. On 7 September 2015 the first Family Report was filed.  At the time of that report being written, the writer had not had the benefit of Dr X’s report, and in due course, he produced an addendum on 20 November 2015.  In that report he recommended that the father spend supervised time with the child at a contact centre, which should move to unsupervised time only if that time was successful, and the co-parenting relationship had improved.

15. That led to consent interim orders being pronounced in the Federal Circuit Court on 11 December 2015.  They provided for the mother to have sole parental responsibility for the child, who would live with her, but spend two hours of supervised time each month with the father at the Town D Contact Centre.  However those orders were not able to be practically implemented, because the Contact Centre indicated that it would not supervise the time, until the child had some counselling to prepare him for reunification with the father.  That led to the December 2015 orders being revisited, and the orders for the father to spend time with the child at the Contact Centre were discharged.

16. On 26 August 2016 the paternal grandmother became formally involved in these proceedings.  She was granted leave to intervene by the Federal Circuit Court on 2 September 2016.

17. The trial of the proceedings commenced in the Federal Circuit Court on 10 November 2016.  However it did not then proceed.  Rather, consent interim orders were made and the matter was transferred to this court.  The consent interim orders reaffirmed that the mother should have sole parental responsibility for the child, who would live with her, but provided for a mechanism by which the child would eventually commence supervised time with the father and paternal grandmother at the Town D Contact Centre.  They also provided for a continuation of the telephone communication regime.

18. In February 2017, the father commenced supervised contact with the child at the Contact Centre.  I shall need to consider the detail of those visits in due course, but for present purposes, it is suffice to say that, generally speaking, they have proceeded without major issue, and the father has now re-established a relationship with the child, who likely identifies that the father is indeed his father.  However, despite the orders of November 2016, the paternal grandmother is yet to spend time with the child at the Contact Centre.  The mother points to the fact that the paternal grandmother did not undertake her intake for the centre until about October 2017, but notwithstanding that, on two occasions, since then, the mother has indicated that, if the paternal grandmother were to attend the Contact Centre for visits with the child, he would not be produced.  In evidence before me, the mother explained that she was not so much concerned about the direct and immediate impact upon the child of spending time with the paternal grandmother, but rather she feared that the paternal grandmother may not thereafter stay a constant in the child’s life, in consequence of which he may suffer some emotional upset.

Current situation

1. As at the time of trial, the mother and father both remained living in Town D, although the mother did not disclose her address, because she asserted that she fears the father would attend her home.  The mother remains in a relationship with Mr Z, and cohabits with him, together with all three of her children.  She is presently studying for a degree, and Mr Z is about to commence to study information technology at a university.

2. The father remains living in the home purchased the paternal grandmother, who now cohabits with him.  He is in receipt of a disability support pension, and the paternal grandmother works with an agency providing support to indigenous persons with acquired brain injuries.

3. Whilst I shall consider the child’s position in due course, it seems likely that he would qualify for a diagnosis of ADHD, but is not presently medicated for it.  He is grade 3 at school, and is evidencing some behavioural issues.  It is said that he regularly soils his underwear, and has taken to hiding faeces at various locations around his mother’s home.  

THE ISSUES

1. At the Trial Management Hearing conducted on 18 October 2017, and with the parties’ assistance, the following were identified as the issues raised by these proceedings, in the sense that their determination is likely to substantially form their outcome:

   1.What is the nature of the relationship between each parent, the paternal grandmother and the child.

   2.What risk, if any, does the father pose to the child, and what means are available to mitigate any such risk.

   3.Does the father have the capacity, emotionally and physically, to provide for the needs of the child, particularly given the child’s intellectual and development needs.

   4.Would the child benefit from a meaningful relationship with the father and/or paternal grandmother, and if so, how might it best be facilitated.

   5.What is the likely effect, including mentally and developmentally, on the child of:

   (a)Requiring him to spend time with the father and/or paternal grandmother;

   (b)Not spending any time with the father and paternal grandmother.

   6.Would the mother facilitate a meaningful relationship between the child and the father and/or paternal grandmother and/or the broader paternal family.

   7.Could the mother and father’s communication and relationship adequately support the exercise of equal shared parental responsibility.

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a consideration of any residually relevant s 60CC considerations, I shall traverse those issues and then determine the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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).

2. Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that 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 either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

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

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

2. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

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

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

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

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

NATURE OF RELATIONSHIP BETWEEN THE PARTIES AND THE CHILD

1. Ultimately there was no controversy in relation to this.  Mr G’s unchallenged evidence was that the child has no present relationship with the paternal grandmother, although he may conceptually know who she is.  As to the father, Mr G opined that the child was commencing to bond with him, and may even be commencing to form some species of attachment with him, although he thought that was probably too strong a word.  Rather he thought there was an emotional bonding which was a positive one, and that the father is identified by the child as being his father, and the child generally enjoys his time with him.

2. As to the mother, Mr G opined that the child enjoys a close and loving relationship with her, and that the child views her as his primary attachment, and derives comfort nurture and support from her.

RISK POSED BY FATHER AND PATERNAL GRANDMOTHER AND AVAILABLE MEANS OF MITIGATION

Overview

1. This was the central battleground in this case, in that the mother primarily sought no contact orders, or at least orders which did not provide for contact between the child and either the father or the paternal grandmother.  However the mother did not clearly articulate what risk she thought either posed, and was generally unsupported by any of the professional witnesses in relation to the existence of a risk of a magnitude that would justify no contact.

The paternal grandmother

1. The mother’s assertion that the paternal grandmother poses such a risk of harm to the child, that she should never speak or communicate with him is frankly ridiculous.  It has absolutely no support on the evidence. Indeed, the mother’s attempts to construct an evidentiary basis to support her claim could best be described as desperate. 

2. She firstly seemed to say that the paternal grandmother posed a risk of physical harm to the child by virtue of her having latent TB, which, in the event that her leukaemia were to recur, could become active and hence infect the child.  She led no expert evidence in relation to this, and it should be dismissed out of hand.

3. Next, she seemed to assert that the paternal grandmother posed a risk of emotional harm to the child, because she may move in and out of his life, and not maintain a strong connection with him.  The mother said that this was a characteristic of the paternal grandmother’s relationship with her own two children.  I reject the mother’s assertions in that respect.  It may be true that the paternal grandmother left the relationship with her partner in Country V, and left the children with him, and it is true that she has had shipboard employment from time to time, which saw her obliged to spend time away from her children whilst at sea, but it is absurd to say that therefore she has thereby somehow or other inflicted emotional harm upon them.  The evidence could not possibly support such a conclusion.  I completely reject the argument that the paternal grandmother poses a risk of emotional harm to the child.

4. Finally, although not actively promoted by the mother, there is a hovering accusation that, because both of the paternal grandmother’s children have been sexually abused whilst children, that somehow or other she poses a risk of harm to this child.  To the extent that suggestion was not expressly disavowed by the mother, it does her no credit.  It is offensive in the extreme to suggest that the paternal grandmother was somehow or other complicit in, accommodating of, or indifferent to, the abuse of her children.  Indeed somewhat ironically, the mother’s own affidavit annexed to it the paternal grandmother’s letter to the relevant authorities opposing the release on parole of her mother’s former partner, who had abused the father.  It does not speak of someone who is anything other than incensed and outraged by child sexual abuse.

5. I wholly reject any suggestion that the paternal grandmother is some risk of sexual harm to the child. Indeed, I wholly reject the suggestion that the paternal grandmother poses any risk of harm to the child of any species.  That the mother was prepared to peddle such a claim, underscores her desperation to expunge the paternal grandmother from both her, and more significantly, the child’s, life.  I am more than satisfied that there was no reasonable basis for her continued assertion of unacceptable risk to be maintained, rather than abandoned.

The father

1. Although it was never expressly articulated by her counsel, the mother’s primary case seems to be that the father poses an unacceptable risk of physical and emotional harm to the child.  The physical risk is seemingly said to arise from the father’s medication regime, in consequence of which he may not be adequately vigilant in relation to controlling the child.  The emotional risk is seemingly said to arise from the fact that he might, on occasion, raise inappropriate topics of conversation with the child, as he has, in the opinion of the workers at the Contact Centre, done from time to time.

2. Frankly, how either of those translate into a risk of the magnitude that the father should be wholly excluded from the child’s life, is not merely difficult to conceive, but nigh impossible.  This part of the mother’s claim, advanced as recently as her Outline of Case filed 24 November 2017, is fanciful and absurd. Advancing it, when there was no reasonable basis for it, positively damaged the mother’s case, because it made her look extreme, desperate, vindictive, and irrational.

3. That said, the father does present some risk of harm to the child.  However no expert contended that it was of a kind or of a magnitude that cannot be sufficiently mitigated by the imposition of appropriate conditions.

4. Mr G opined that his only concern was in relation to the father’s capacity to properly emotionally self-regulate.  He said that the father was an overly emotional person, but emphasised that is the person the father is, in consequence of his own traumatic background.  However he did not think that the father would take that out on the child, but was likely, during times where he became overly emotional, to turn in on himself.  During those period he might become unavailable to the child, but he would in due course reconstruct himself.  He said that he believed the father would seek to protect the child from himself during times when he was overly emotional.

5. Mr G was not overly concerned about any impulsive or angry responses by the father, in consequence of his diagnosed adult ADHD.

6. As to the father’s opioid use, he opined that the father has insight into his past difficulty in relation to overuse of medication on occasion, and had taken responsibility for it.  He was of the view that it was no longer a current concern.

7. Somewhat interestingly, in relation to the effect on the child if the father were to fail to properly emotionally regulate when in the child’s presence, whilst Mr G said that that would not necessarily be helpful for the child, he did say that children need to appreciate eventually that their parents are not 100% perfect, and have foibles and features, just as, indeed, does everyone.

8. He thought that there may be some risk that the father may seek to denigrate the mother to the child, but noted that the father had not done that to date.  He thought that if the father were to denigrate the mother to the child, it would put the child at risk of some emotional harm.

9. Notwithstanding his assessment of the low risk which the father posed, he still thought that supervision was warranted, not so much to protect the child in relation to the risk of harm, but rather because in the past the father had obtained real benefit from the workers at the Contact Centre who had, on occasion, redirected him when he was introducing what they thought to be inappropriate topics into conversation.  Further, even the father identified that he had obtained benefit from such workers. Therefore Mr G’s recommendation for supervised time, albeit on an interim basis, was not so much in relation to risk mitigation, but rather to promote the prospects of the father’s relationship with the child being a successful one.

10. Dr X had slightly stronger views in relation to supervision.  He was particularly troubled about the father’s current heavy medication regime.  Indeed it must be said that the father’s medication regime is considerable: his own GP conceded that, if she were to take the medication which the father presently does, she would be in a coma.

11. Dr X identified that the medication posed two risks of harm to the child.  The first arose from the father’s own physical state from time to time, including that he may be drowsy or lethargic.  The second arose from the fact that the father is, on occasion, depressed, and during those times he may not be able to provide a psychologically nurturing environment for the child.

12. However Dr X expressly disavowed that either of those risks required strict Contact Centre supervision.  He thought that the paternal grandmother may be able to provide such supervision as is required, which was really more in the nature of ensuring that the child was kept physically safe during any periods where the father may be physically unable to control him, and further, to ensure that the child was adequately psychologically provided for during the course of the father’s time.

13. Far more upbeat assessments for the father were provided by his therapists.  All of them expressly disavowed that the father posed any risk of harm to the child, and none of them identified the need for supervision.

14. Turning to the specific individual risks, I am satisfied that indeed the father is very heavily medicated.  Further, he does, on occasions of high stress, resort to self-harm as a means of coping.  Plainly if the child were exposed to that, it could significantly distress him, and may even permanently emotionally harm him.  However to date the father has not self-harmed in a way that the child is aware of.

15. As to the risk of physical harm to the child which that poses, I have to say that I assess it as fairly remote.  The mother points to the fact that on one occasion the father has fallen off a chair (the father says it was missing a wheel and that is why he fell off) and fallen asleep in his car at 11:00pm after having been out and consumed one beer at a night club.  It is true that both of those events occurred, and that in consequence, one cannot exclude the risk that the father may, inadvertently, expose the child to a risk of physical harm by being unable to properly monitor or control him when he is in his care.  However that can be adequately mitigated by the means proposed by the Independent Children's Lawyer, namely requiring the father’s time with the child to be either professionally supervised, (albeit not directly as a response to that risk) or loosely supervised by the paternal grandmother, as suggested by Dr X.

16. As to the risk of emotional harm by virtue of the father being unable to properly nurture the child if he is adversely affected by his medication, again that risk cannot be excluded.  However it is more than adequately mitigated by either professional supervision, or the paternal grandmother being in the vicinity and loosely supervising the father’s time.

17. A dismal attempt was made to smear the paternal grandmother as being unable to control the father.  It was dismal partly because there was no basis for advancing it on the evidence, and in that sense was weak, but it was also dismal because it demonstrated the level of desperation which the mother is willing to resort to in seeking to denigrate the paternal family generally.

18. The paternal grandmother is the exemplar of a robust woman.  However I would not want it thought that she does not have a soft side.  She does.  The woman who has worked on trawlers and fishing boats, formed an attachment with a refugee who was self-harming.  The deal she struck with him was that she would financially support his wife and partner in Country N if he stopped self-harming.  She has kept her part of the deal.  More, when he finally made his way out of detention, she allowed him to live with her and the father in their home in Town D.

19. I had the benefit of not only seeing the paternal grandmother in the witness box, but also throughout the course of the trial.  She regularly physically touched the father in an effort to placate him during the stressful proceedings.  She has plainly been a driving force in relation to much of this litigation.  To suggest that she is somehow or other incapable of asserting herself effectively in relation to what she may believe to be poor conduct on behalf of her son, must be rejected.

20. A most striking example of her willingness to stand up to her son is her referral of him having stolen from her (by using her credit card without her permission) to police, which resulted in his subsequent criminal prosecution.  This is not a woman who permits the father to control, or walk over, her.  She is strong and independent, and yet sensitive, kind and caring.  She can sufficiently control the father.

21. Finally I should advert to the mother’s fears, articulated in her Notice of Risk, that the father poses a risk of sexual harm to the child.  For instance, the mother asserts that the father exposed E to inappropriate topics, by pointing out to him a strip club in Town D.  More concerningly, her affidavit says that the father showed D homosexual pornography and inquired whether it aroused him.  The father denies that he so acted.

22. Mr G expressly disavowed that the father posed any risk of sexual harm to the child, by virtue of the father having himself been sexually abused as a child. I accept that evidence, and I am well satisfied that the father poses no risk of sexual harm to the child beyond that which any typical member of the community poses.  The fact that he is a victim himself of childhood sexual abuse – as, sadly, are many parents – does not disqualify him from being a parent.  Specifically, it does not disqualify him from loving his child, or wanting to be involved in his life.  I wholly and emphatically reject any suggestion that the father poses a risk of sexual harm to the child.

FATHER’S CAPACITY TO PROVIDE FOR CHILD

1. Mr G opined that the father could emotionally provide for the child, and had demonstrated a willingness to learn about the child and his needs, and had adjusted his behaviour and interaction with the child in a way that demonstrated that he was child focussed.  He thought that the father had a lot of potential in relation to providing for the child.  Particularly, the fact that the father himself has ADHD, as does the child, is likely to assist the child in that the father knows how ADHD is likely to impact upon the child, during his development and adult life.  It was thought that that fact gave the child some real advantage in having the father engaged in his life.

2. I am well satisfied that the father has the capacity to recognise the child’s emotional needs, and to meet them.  That said, sometimes he has trespassed into areas which should probably not have been raised with the child during supervised contact.  However the father has been amendable to re-direction by the workers at the Contact Centre, and had insight into the reasons why raising topics (for instance the child’s passport application) with the child was inappropriate.

3. As to the father’s capacity to physically provide for the child, at one stage the father was considerably overweight, in consequence of which he had serious mobility issues.  However he has lost 40kg of weight since then, and is now quite mobile and able to walk unassisted.  Not only has that weight reduction had physical benefits for the father (including an ability to sleep more easily) but it had psychological benefits for him, as well.  There is nothing to suggest that the father is incapable of physically providing for the child, whether in relation to his needs, or the ability to supervise him.  For instance the father said that he and the child play “tag” at the Contact Centre, and whilst it is difficult for the father, he can do so.

4. I am satisfied that the father has the capacity to emotionally and physically provide for the needs of the child.  Moreover I am satisfied that given that both the father and the child have ADHD, the child is likely to obtain some particular benefit from the father’s involvement in his life.

BENEFIT TO CHILD FROM MEANINGFUL RELATIONSHIP WITH FATHER AND PATERNAL GRANDMOTHER

1. Other than the risks which she asserted the father posed to the child, the mother did not seem to seriously advance an argument that the child would not benefit from a meaningful relationship with the father and paternal grandmother.  Indeed the mother repeatedly emphasised during the course of her oral evidence that she believed that children needed to have a relationship with their biological father.  Sadly, in my view, those repeated protestations were hollow, and have not been borne out in her conduct to date.

1. Mr G specifically said that, not only on a general level do children benefit from a meaningful relationship with their biological parents, but that in particular, this child would benefit from a meaningful relationship with this father.

2. As to the paternal grandmother, he said that this was untested, but I am satisfied that the paternal grandmother has much to offer this child, including love, support, and exposure to her somewhat extraordinary life experience.

3. I am satisfied that the best means of facilitating the benefits of the meaningful relationship is by the child spending face-to-face time with each of them.

EFFECT ON CHILD OF PARTIES’ PROPOSALS

Spending time with father and paternal grandmother

1. Mr G said that the effect on the child of requiring him to spend time with the father was likely to increase and improve their levels of bonding, and may lead to the child having an attachment with the father.  He thought that when the child then returned to the mother’s care, there may be some further difficult behaviour, although he thought that that may well reduce over time, as the child adjusted to the situation.  I accept that evidence.

2. I am satisfied that the likely effect on the child of requiring him to spend time with the paternal grandmother, is probably neutral.  The mother herself did not identify any direct impact on the child as being the basis for her threatening to withhold the child from contact with the father, if the paternal grandmother also attended, but rather that the child may suffer, some time in the future, if the paternal grandmother did not remain a constant feature in his life.  I am well satisfied that the paternal grandmother intends to maintain a relationship with the child if she can initiate one, and that the mother’s fears in this respect are groundless.

3. Therefore I am satisfied that the likely effect on the child of requiring him to spend time with the father and paternal grandmother will be a positive one.  It may even lead to him forming an attachment with the father, and particularly given that both the father and the child both have a diagnosis of ADHD, that is likely to be a particular benefit to the child.

4. As to grandparents, this court has a long history of recognising the substantial and significant contribution which grandparents can make to a child’s welfare.  Often, in times of severe breakdown, grandparents can assume, temporarily or even permanently, parental responsibilities in relation to children.  I am well satisfied that this child is likely to derive significant benefit from having a relationship with the paternal grandmother.

Spending no or limited supervised time with the father and paternal grandmother

1. Mr G’s opinion was that he was not sure about what the effect of ceasing time with the father would be on the child.  He thought it may not be productive of any massive effect since, for most of his recent life, the child has been without contact with the father.  However he thought that now that the child had got to know who his father was, and was aware that the father loved him and was interested in his life, if he were to now disappear from his life, could cause him to feel abandoned.  Certainly he thought that as the child aged, he would be likely to wonder who he (the child) was, and hence think back to his genetic background.  He thought that an analogy might be adopted children, who seem to have a desire to reconnect with their biological parents.  If that occurred, and the child felt that he had been deprived of father in his life, that could lead to rebellious behaviour, and could affect his development of identity and self-esteem, and impede him having a healthy sense of self.

2. He also thought that on that scenario, the child may grow to resent the mother, or at least there was a risk of it.  He thought that there was a prospect even that the child would become estranged from the mother if he realised that he had been actively influenced by her, or misled by her, in relation to the father.

3. On balance the evidence satisfies me that there is some risk to the child on an emotional level of not having a relationship with the father and paternal grandmother, or having a very limited relationship.  However I do not assess that risk as substantial.

WOULD MOTHER FACILITATE RELATIONSHIP BETWEEN CHILD AND FATHER AND PATERNAL FAMILY

1. The mother asserts in her oral evidence that she believes that there is a benefit to children of having a meaningful relationship with both biological parents.  However her protestations are not borne out in her conduct, or indeed, in the child’s disclosures.  I am well satisfied that the mother presently has no intention of facilitating a meaningful relationship between the child and the father, or the paternal grandmother.  True to her word, any time that the father has physically spent with the child since 2014 has only been pursuant to court order.

2. The best indicator of the mother’s true belief in relation to the father and the paternal family more broadly comes from the child’s own mouth.  Alarmingly, as long ago as 2015, in response to Mr G asking him about “dad,” the child said “[Mr Whalan]” and then “I’m not supposed to talk about [Mr Whalan].”  The Contact Centre reports are replete with further instances of the child so behaving.  For instance (and it is only one of several) on 30 April 2017 the father, whilst spending time with the child at the Contact Centre, asked the child to draw a card for the paternal grandmother.  The child responded that he was not interested in doing this, saying “mum will not let me.”  To like effect, in a later visit on 28 May 2017 the Contact Centre notes record that the child said to the co-ordinator “that he liked coming to the Centre,” however added “but don’t tell my mum I said that.”

3. The mother disavowed that she had ever said any such thing to the child.  She further said that she had actively encouraged and supported the child spending time with the father, but the child’s utterances demonstrate beyond any doubt that, even if she has so acted, the child has not perceived it in the way that the mother intended.

4. The sad fact is that the only way in which this child will ever have a relationship with the father is likely under court order, and it is quite foreseeable that the court orders will need to be enforced by contravention applications.

5. As to the paternal grandmother, I am well satisfied that the mother has no intention whatsoever, unless there is threat of sanction upon her, of permitting the paternal grandmother to be involved in the child’s life.  Her actions on the last two weekends prior to the trial speak volumes.  Notwithstanding the orders of November 2016, the fact that the father had re-established a relationship with the child, and that the paternal grandmother had successfully completed an intake for the Town D Contact Centre, the mother vetoed the paternal grandmother being reintroduced to the child.  I am well satisfied that she did so strategically, knowing that the trial was looming, and that the reintroduction of the paternal grandmother into the child’s life might forensically disadvantage her in these proceedings.  There is simply no excuse for her so withholding the child, or threatening to withhold the child.  Her conduct in doing so was irresponsible, petty and vindictive.  It was also in clear breach of the orders of Judge Willis.

6. However this is not a case in which the father presents, at least currently, as an alternative candidate for the primary care of the child.  If he were to do so in the future, the mother should be well warned that, if she cannot support a relationship between the child and the paternal family, then active steps may need to be taken to ensure that occurs.

COULD PARENTS COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. Unfortunately the answer to this question is a plain no.  These parents have not been able to conduct civil communication since the father returned to Town D, and there is no reasonable prospect of them being able to do so in the future.  For what it is worth, I am satisfied that the cause of that lies with the mother rather than the father, but even so, it is plain that that civil communication cannot be established, at least at this point in time.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations, and a number of the additional considerations, when traversing the issues.  Nonetheless I make the further following observations.

2. The father pays child support in relation to the child.  There are no arrears.  Further, the paternal grandmother has paid the child’s school fees for one year.  There is said to be an outstanding account in the vicinity of $1,000.00 to the child’s present counsellor, which pursuant to the orders of Judge Willis, ought be paid by the father.  He does not have the means to pay it.  Why the mother chose to select a counsellor who would not bulk bill is not explained in the evidence, and I am suspicious that she intended her choice of counsellor to be a financial impost upon the father.  I draw no inference from the father having not paid the account.

3. The mother asserts that there has been family violence directed towards her by the father.  There have been family violence proceedings, and interim orders between the parties, however the mother was unsuccessful in retaining final orders against the father, but worse, was found by the Magistrate to have concocted the application with a view to impeding the father spending time with the child.  I have indicated that I adopt that finding.  It was plainly correct.  It is also consistent with her conduct since then.

4. It would be preferable to make an order which finally concluded this litigation.  However, given that the mother has not permitted the reintroduction of the paternal grandmother into the child’s life, effectively that is impossible.  More, given the present recommendations of the experts in relation to less robust supervision of the father’s time with the child, which has not been trialled, the prospect of presently making final orders which actively promote the relationship between the child and the paternal family is problematic.  The desire to put to rest the litigation is but one factor for the court to consider in determining best interests.

PARENTAL RESPONSIBILITY

1. These parties are incapable of conducting respectful, child focussed, communication.  Sadly that may never improve.  However, for the time being at least, any attempt by these parties to communicate in relation to decision making about the child, would be doomed to fail.

2. Ironically, to the extent that I am satisfied there has been family violence, it is that it was perpetrated by the mother rather than the father.  Counterintuitively however, notwithstanding that she is the likely perpetrator, given that the child will, on any view, for the foreseeable future primarily reside with her, parental responsibility must rest with her, save that she must not be permitted to move the child’s residence in a way which would adversely impact upon the child’s capacity to have a relationship with the father.

3. As I have indicated, I have very grave misgivings about the mother’s willingness to facilitate a relationship between the father and the child, but that does not persuade me that nonetheless it is not presently in the best interests of the child for her to have sole parental responsibility for him.  There will be an order to that effect.

WITH WHOM SHOULD CHILD LIVE

1. There is no dispute that the child should live with the mother.  I am satisfied that is presently in the child’s best interests.  His primary attachment is to her.  Notwithstanding her lack of willingness to facilitate a relationship between the child and the paternal family, she is otherwise a good mother.  There will therefore be an order that the child live with the mother.

TIME AND COMMUNICATION WITH FATHER AND PATERNAL GRANDMOTHER

1. This was the nub of the case.  The mother’s primary position was that the father and paternal grandmother should have no relationship with the child, in that they should neither spend time nor communicate with him ever again.  That must be dismissed out of hand.  There is no basis for that argument in this case.  I have already observed that not abandoning that contention does no credit to the mother.

2. That then brings into focus the circumstances in which the father and paternal grandmother should spend time with the child.  The competing contentions are, on the one hand, the mother saying that there should be what might be described as recognition contact only, and the father, paternal grandmother and the Independent Children's Lawyer saying that there should be a blend of supervised time and loosely supervised time.

3. The following points tell in favour of recognition of only contact, or tell against the Independent Children's Lawyer’s proposals:

   ·It would appease the mother’s anxieties in relation to the father and paternal grandmother;

   ·It would mitigate against any risk which the father poses to the child.

4. On the other hand, the following points tell in favour of the Independent Children's Lawyer’s proposal, or are contrary to the mother’s proposal:

   ·The mother’s proposal would not enable anything other than a recognition relationship;

   ·The child would benefit from a meaningful relationship with both the father and the paternal grandmother;

   ·The Independent Children's Lawyer’s proposal would conservatively mitigate against the risks which the father poses to the child (noting that the paternal grandmother poses no risk to the child);

   ·Unless there are ordered contact regimes, the mother will not otherwise facilitate a relationship between the child and the paternal family, and is likely to actively discourage it.

5. Weighing those matters in the balance, convincingly tells in favour of the orders proposed by the Independent Children's Lawyer.  Indeed it may fairly be said that the mother’s proposal of recognition only contact was wholly unwarranted. It was unreasonable, and did not reflect the evidence.  It does not reflect the best interests of the child; indeed, it does not even begin to grapple with them.

6. That then raises the question of the level of the time, and the mix between strictly supervised time, and loosely supervised time by the paternal grandmother.

7. The father derives continuing benefit from Contact Centre staff being able to educate him in relation ways to interacting with the child, and deflect him from inappropriate ways of doing so.  He conceded that he obtains benefit from that.  It should continue.  However, the child should be given an opportunity to experience the father outside of the Contact Centre, in a less strictly supervised environment.

8. In my view the Independent Children's Lawyer’s proposal adequately balances those two considerations.  By continuing to have a blend of Contact Centre time with the father, and non-Contact Centre time with the child, it gives the father an opportunity to extend his competence in dealing with the child, and provides an opportunity for the father to continue to receive benefit from Contact Centre staff’s guidance.

9. Insofar as it deals with the paternal grandmother, I am well satisfied that the Independent Children's Lawyer’s proposal effects the introduction of the grandmother into the child’s life in a safe environment with which the child is well familiar, but then enables that relationship to continue in more natural circumstances.  Given that I am satisfied that the paternal grandmother poses no risk of harm whatsoever to the child, the orders proposed are conservative.

10. I am well satisfied that the proposal of the Independent Children's Lawyer in relation to the father’s and paternal grandmother’s time is in the child’s best interests, and will so order.

OTHER ORDERS

1. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are in the child’s best interests and will pronounce them.

CONCLUSION

1. For these reasons there will be orders as proposed by the Independent Children's Lawyer.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 December 2017.

Associate: 

Date: 19 December 2017