Zackary and Rabassa (No.2)

[2019] FCCA 2902

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACKARY & RABASSA (No.2) [2019] FCCA 2902

Catchwords:
FAMILY LAW – Parenting – interim – mother withholding child from father – observations of child with mother and father – child not at an unacceptable risk in father’s care.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(b), 67Z, 69ZW

Goode & Goode [2006] FamCA 1346
Stott & Holgar and Anor [2017] FamCAFC 152

Applicant: MR ZACKARY

Respondent: MS RABASSA

File Number: MLC 6269 of 2016

Judgment of: Judge Harland

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Melbourne

Delivered on: 23 September 2019

REPRESENTATION

The Applicant appearing in person.

The Respondent appearing in person.

Counsel for the Independent Children’s Lawyer: Ms Sdraulig

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. Order 10(b) of the final Orders dated 27 June 2018 be discharged, and the remainder of the final Orders made on 27 June 2018 remain in full force and effect.

2. The father spend time with the child, X born in 2016 (“the child”), from 10:00am Wednesday 25 September 2019 to 4:00pm Thursday 26 September 2019.

3. The father spend time with the child from 10:00am Wednesday 2 October 2019 to 4:00pm Friday 4 October 2019, and each alternate week thereafter.

4. The father spend time with the child from 10:00am Friday 11 October 2019 to 10:00am Monday 14 October 2019, and each alternate weekend thereafter.

5. The Independent Children’s Lawyer be granted leave to relist the matter on short notice.

6. The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the s.69ZW order made 19 September 2019 in these proceedings.

7. The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES THAT:

(A)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(B)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(D)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

(E)The information produced in order 6 is confidential and cannot be disclosed to any other person without an order of this Court.

(F)Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Zackary & Rabassa (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6269 of 2016

MR ZACKARY

Applicant

And

MS RABASSA

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application with respect to parenting orders for X, who is not yet four years old. I refer to the oral reasons I gave last Thursday 19 September 2019, and I will not repeat those. Those reasons will need to be read together with these reasons.

3. The law with respect to interim parenting matters is well established, as set out by the Full Court in Goode & Goode [2006] FamCA 1346 and several other authorities. In interim matters where evidence has not been tested, the Court is restricted in its ability to make findings, but it is also the case that it cannot ignore serious allegations and is not limited to only considering the agreed facts. In these types of disputes, the independent documents become important.

4. In assessing what is in X's best interests pending the expedited trial, it is a question of balancing risk issues. Really, the crux of this case is going to be s.60CC(2)(b) with respect to the need to protect X from family violence and from physical and/or psychological harm. With respect to the issue of risk, I also refer to the Full Court's decision of Stott & Holgar and Anor [2017] FamCAFC 152, which refers to the unacceptable risk test, where there are two limbs: firstly, to identify if there is a risk; and secondly, is it an unacceptable risk and are there orders that can be made to alleviate that risk.

5. I referred to the parties' respective positions last Thursday and I read the affidavits that the parties have filed, and also have extensive exhibits before me which I have considered. One of the disputes at trial that will need to be explored is whether or not it is in X's best interests for the parties to continue to exercise equal shared parental responsibility and what living arrangement is going to be in X's best interests that will best promote his relationship with both parents in a manner that is safe. There are also the contravention applications that the father has filed, which I have also adjourned to that trial.

6. The father's case is that there have been problems with the orders almost immediately after the final consent orders were made, and he says that the mother breached the orders on numerous occasions well before the incident of withholding X in March 2019. The mother disputes that and says that there were agreements to change the arrangements, and both refer to each other as being to blame for the orders not working. Both see the other as being obstructive and difficult, and it is reflective of what has been in issue in this case in the previous proceedings as well, before final consent orders were made. In this regard, I refer to Dr D’s psychiatric assessment of the parties which was tendered as exhibit G, where he talks about the parties' contrasting personality styles and presentation, and where, at that stage, he did not identify there being a risk for X in either parent's care.

7. I accept that the psychiatric assessment by Dr D and the two family reports by Mr E have not been tested as the parties resolved the matter by consent when the matter was listed for trial in June 2018. The two reports prepared by Mr E were tendered as exhibit H. In the first report, he observed X to be a very happy, health and sociable, engaging young boy, who moved effortlessly between both of his parents and sought physical comfort and contact from both his parents. He emphasised that what was important to note was that X was developing extremely well, which was significant, notwithstanding the level of conflict between the parents and the allegations and counter-allegations that they made against each other. Paragraph 4 of his first report is insightful, and I set it out:

   Notwithstanding the many positives in relation to this family, both Mr Zackary and Ms Rabassa agreed that their relationship was tumultuous, that conflict between them escalated quickly and that they were not able to adhere to an agreed plan in any regard. I had direct experience of this with them. Their conflict escalates in a fairly predictable manner in that they seem compelled to try to convince the other that their position in relation to any matter is not correct, and that the other should change their position and perspective in order to accommodate their own. This interactional style creates a fertile environment for the germination of chronic conflict. This was very clearly a feature of their past relationship, and is likely to be a feature of their future interaction.

8. He referred to their clearly tumultuous relationship and the allegations and counter-allegations, but noted, to their credit, that X was happy and well-adjusted. One of the difficulties throughout the previous proceedings has been the distance between the parties, with the mother having moved to City A without the father's consent, and the father living in Melbourne.

9. By the time of the second report by Mr E released in December 2017, the conflict between the parties had escalated. It was clear from the volume of emails between them that they had trouble agreeing to things, and it showed the escalating nature of the conflict and the nature of the allegations between them. At paragraph 5 of that second report, Mr E referred to the mother's affidavit evidence at that time as "free-floating expression" of her anxiety, and a tendency for her to over-represent emotional facts. He referred to the father's concern about the mother's non-compliance with orders and that the mother sees orders as advice rather than something that must be complied with. He also complained about the mother feeling that she was the overwhelming authority with respect to X, and that she was constantly changing position and dictating terms.

10. Significantly, Mr E observed that X continued to show easy, warm interactions with both his parents, but now was showing some discomfort in that middle ground between his parents, showing that he was aware of the tension between his parents. That is a very difficult psychological space for a child to be in, as it is stressful for them and causes uncertainty, and if that is something that is not addressed, that can have long-term impacts on him as he gets older.

11. He referred to the tension and competitiveness between the parties, and he referred to both parties operating from an external locus of control, or, in other words, blaming each other for what was happening rather than taking any responsibility for their own actions. He flagged in that report the concerns about the mother's ability or willingness to facilitate a relationship between X and his father in the future if those concerns were made out.

12. At paragraph 26, he noted that there was no real reason why X could not live primarily with the father, though the mother has undoubtedly been the primary carer and is the primary person that X turns to for his needs.

13. Again, paragraph 32 of that report is particularly pertinent. It reads:

    Ultimately, for X, the best outcome is not predicated on with whom he lives or how much time he spends with each parent, but on the quality of his relationship with his parents and the impact of them and their conflict on him. Ultimately, if there is to be a testing of evidence it is this issue that should be the linchpin to decisions made.

14. The father seeks orders for an interim change of residence. It is his position that that is the only way that X will be able to maintain a relationship with both his parents. He has no faith that the mother will comply with orders that the Court makes, and is of the view that the mother will withhold X from spending time with him again.

15. The mother's position, as outlined in the two affidavits that she filed on 9 September 2019, is that X is at risk in his father's care, especially for longer periods of time. She talks about him being angry and controlling, and sought that initially time be reintroduced with supervised visits before progressing to overnights. That remained her position when the interim hearing began last week. Today, the mother says her position has changed, and having heard from the family consultant Ms F - and I will refer to her evidence later - she says she accepts her opinion and wants X to start spending time with his father again, but seeks that there be a gradual reintroduction, given the length of time that X has not seen his father. There are some concerns, both on the father's behalf and also the Independent Children's Lawyer's behalf, as to whether the change in the mother's position today is one that will last, and the genuineness of it.

16. It is agreed that X has not spent any time with his father before today since 3 March 2019. Before turning to the events that led to that incident, I will refer to some of the material in the exhibits.

17. Exhibit F is the first s.67Z response from the Department of Health and Human Services (“the Department”) in 2016. In 2016, the Department carried out an investigation and interviewed both parties. The concerns were with respect to family violence and the mother's concerns that the father was negligent in caring for X. The Department was not concerned about the mental health of either party. After interviewing the parties at their homes, the Department commented that both had appropriate set-ups at home for a child of X's age, both were seen to be responsive to X's needs in their respective cares, and both were able to identify X's developmental needs and appeared to be prioritising his well-being. Neither party presented as being under the influence of drugs or alcohol. The Department supported that X remain in the mother's primary care and develop a close relationship with his father, and also strongly recommended that the parents address their conflictual relationship and learn how to co-parent effectively. It is palpably clear that that is not something that has occurred, and indeed, what is very clear is that the conflict and the nature and types of allegations the parties made against each other have escalated.

18. With respect to the issues of family violence, which is an issue that the Court takes very seriously, and in this regard I will refer to the Family Violence Best Practice Principles and a very broad definition of family violence in the Family Law Act 1975. Family violence is not limited to physical violence, but also extends to emotional and psychological violence and controlling and coercive behaviour.

19. The allegations with respect to family violence and the history of family violence needs to be seen in the context of the final consent orders that were made 27 June 2018 when the matter was listed for trial. The matter had previously been listed for trial in January 2018 and adjourned, and as is apparent from the experts' material, there have been subpoenas issued in the course of the earlier proceedings, including with respect to the family violence issues.

20. One of the matters that the mother emphasised in her material was the nine charges made against the father, two of which include indictable offences, and the fact that the father accepted guilt and was placed on a diversion program, and that diversion orders were made after the final orders were made. However, it is also apparent from the subpoenaed material, in particular exhibit D, which is the Magistrates’ Court of Victoria file, that all of the charges relate to incidents that occurred well before the final orders were made. So whilst they were not finalised and dealt with by the Magistrates’ Court prior to the final orders, the incidents and the fact that there were charges on foot was well known.

21. The Magistrates’ Court provided a covering letter to their material indicating that the matter was referred to the Criminal Justice Diversion Program, which is program for first time offenders that commit lower level offences or accept responsibility and are offered the opportunity to avoid a criminal record if a suitable program and compliance with conditions are met. It diverts them from the mainstream criminal justice system and is designed to address the root causes of their behaviour, and also, where appropriate, engage with the victim. The father is due to complete his diversion plan on 27 September 2019 and it will be discharged on that date on the basis that he has complied with the conditions, which included him paying a sum for a domestic violence program, attending a Men's Behavioural Change Program, writing an apology letter to the mother and remaining on good behaviour. The charge sheets are set out in that bundled document.

22. The indictable offences related to a threat to kill made on 22 May 2017, and using a carriage service in a manner which a reasonable person would regard as being harassing on 17 June 2017. The other charges relate to breaches of an intervention order and an assault on the mother on 19 December 2016. The charges relate to four dates, being 19 December 2016, 22 May 2017, 17 June 2017 and 31 July 2017. All of this well pre-dates the final orders being made. It is not clear from the material produced from the Magistrates’ Court as to whether some of the charges were withdrawn, as the father says, or whether the diversion relates to all nine charges. It is indicated the factor that is significant is the historical nature of those charges.

23. I also refer to the police records marked as exhibit E, which are the LEAP records, which provide some further information with respect to these incidents. As I invited the parties to do when this matter was before me on Monday last week, both parties tagged parts of the exhibited material that they wished to bring to my attention, and the whole of those records were marked as exhibits.

24. One incident that is referred to that is also raised in the material subsequently is an incident on 16 December 2017 where X was returned to the mother with a black eye. The father referred to it occurring as a result of a fall at the park. The mother called an ambulance and referred to X having a bruised eye and being in an altered state of consciousness. The ambulance examined X, found no other marks and bruises on him, noted that the only injury was a bruise to his right eye and recorded that X was not in distress and appeared happy and alert. They advised the mother she did not need to attend or take X to the hospital. The Sexual Offences and Child Abuse Investigation Teams (“SOCIT”) also interviewed the father about that incident, and he showed the police photographs of X before and after. The police did not detect an offence. The reason for drawing attention to this is that the mother sought to draw the Court's attention to this entry and refers to this as being a serious injury to X. The father draws the Court's attention to this entry for the comment that X appeared happy and alert, and there is certainly nothing in that material that indicates that X was seriously injured on that occasion.

25. It is clear also from those records of some of the earlier incidents in 2016, that there were times when the mother was recorded as the respondent and the father the affected family member, and at times when that was reversed. Both parties have had intervention orders against each other. The mother currently has a full intervention order against the father with the family law exception there, and X is also named as a protected person on that intervention order.

26. I will turn to incidents that are identified post the final orders being made on 27 June 2018. In November 2018, both parties report the separate previous incidents against each other, the most serious being where the mother was assaulted. The father complained to police that the mother had breached the orders and had a video-recording of them arguing over child arrangements. The police record that the phone call was heated and that both parties felt they were right. The police further recorded that both parties had breached their respective intervention orders during the course of those recordings. One of the issues of concern was that, as there was a full intervention order against the father, recording the conversation at all was a breach of the intervention order as it was keeping the mother under surveillance.

27. Significantly, the police record the following:

    The arguing between both parties is petty and neither are able to or want to help the other out. Both are focused on winning the argument rather than thinking about the child in the middle of the dispute.

    The police did not have concerns for either party’s safety and they determined not to take any further action.

1. There was a LEAP entry on 10 November 2018 where, curiously, it refers to there being no family law orders in place, which is clearly incorrect. It records the mother telling the police that she is entitled to contact the father by any means to negotiate childcare arrangements but that the father is prohibited from contacting her by any means at all, unless through a mediator or solicitor. That is, in fact, not correct, given that the intervention order was made with the family law exceptions in place. What is significant is the disclosure about both of them having contacted each other by telephone for periods of time and things going well for a period but then, conflict between them worsening. Part of the issues were with respect to financial matters and the entry records that the mother sought to make a complaint about breaches of the intervention order and the police officer recorded that she indicated she had evidence of the breaches but did not have them with her.

2. It was clear that the mother was facilitating breaches of the intervention order by telephoning the father and, after investigation, the police determined to take no further action. There is a further LEAP entry on 18 November 2018 where the mother made a complaint about the father filming her at changeover and that police were called. Reading through the previous family violence incidents, it seemed that both parties were making similar attempts in order to try and gain a win over the other party.

3. On 12 September 2019, the mother attended at the police station wanting to report multiple breaches of the intervention order and complained about the father texting her about child arrangements and showed numerous texts to the police. The police record in that entry that they advised her that it was not a breach of the intervention order because of the family law orders and records that the mother wanted the father to be breached for contacting the childcare centre as well. She complained about him wanting to be an emergency contact with the childcare centre and said that she felt that this was harassing of her and that she did not want any contact with the father at all.

4. The police member making the entry recorded that it appeared that the mother was attempting to go to multiple police members at different stations in an attempt to get the upper hand and try and breach the respondent. Both parties flagged this entry to bring to the Court’s attention. The mother objected to that last sentence and says that she only reports matters where she lives. But what it also indicates, and this is indicated in the mother’s affidavit material as well, is that some of the communication from the father she interprets as being harassing is somewhat unreasonable.

5. The parties have equal shared parental responsibility. The father is entitled to contact the childcare centre and it is of concern if it is still the case that his full details are not recorded with the childcare centre and that he is not listed as an emergency contact. He should be. It is reasonable for the father to want to be provided information by the childcare centre.

6. On 3 March 2019, after X was returned to the mother’s care after spending time with the father, the mother made a complaint to SOCIT and the Department after what she says is that X, after returning home, had taken off his clothes and she saw bruising on his leg near his buttocks and asked what had happened and that X told her that his daddy hit him and when she asked him why he said, his “daddy was naughty”.

7. The mother took photographs and texted the photographs to the father and asked him why he had hit X and informed the father that she was not going to make X available, given that disclosure of physical abuse. The records from both the police and the Department deal with this issue in some detail and I will not set out the contents of those documents in any length.

8. One of the things that the father points to in that material is the lack of any corroborating evidence and the failure of X to make a disclosure to anyone other than the mother. That, of course, is a very common thing in incidents of this nature and is not something that I would place any weight on. It is also not surprising, given X’s age that other disclosures were not made. That is neither here nor there with respect to that issue, but what is significant is the conclusions of SOCIT and the Department. The SOCIT records refer to after carrying out an investigation and examining all the documents in evidence, there was some doubt as to the credibility of the mother and some suspicion about whether or not she had fabricated allegations because of the current family law proceedings and her fear that the father was trying to obtain custody of X.

9. Again, both parties flagged this entry for different reasons, with the father referring to the doubt in the mother’s credibility and the mother stating that SOCIT did not contact her and that if they had she would have provided the text messages from the father confirming bruises in her care. One of the issues that is raised is some inconsistency in what the mother has said is in her statement to police. She says she was not aware of any injury to X until after X was returned to her care. But what is in the exhibits are text exchanges between the parties, where the father had sent the mother a text the day before on 2 March 2019 and also sent photographs of X playing on the beach, and told her that he had had a small accident with a bush where he scratched himself. The mother’s statement to the police, which is also part of the exhibits, is inconsistent with this and she says that the father told her about the scratch when he dropped X back to her and made no mention of the previous texts.

10. There is no suggestion that the issue of bruising on X’s legs was raised. Indeed, the father’s position is that he was not aware of them and, in the exchanges between the parties on 3 March 2019, the father denied hitting X and referred to him being an active boy who runs around and that the marks were clearly not from someone hitting him. There are colour photographs of the bruises in the exhibits before the Court. They were noted by SOCIT to be small and circular in appearance and that, given their location and presentation, it was more likely that they were accidental rather than being caused by the father deliberately.

11. SOCIT did not authorise any charges to be brought. Of course, the fact that briefs are not authorised by police does not mean that they are not matters that are properly raised as issues of concern before this court because the criminal standard of proof is quite different to the task that this court has to undertake with respect to assessment of risk. The records from the Department set out the mother’s concerns with respect to this incident and X’s disclosures that his father hurt him and hit him The Department records the mother’s concerns that, since withholding X, the father was threatening to take X away from her completely and also her fear that the father would hurt X again, if he was allowed to have unsupervised contact.

12. The Department records that there had been previous concerns about the ongoing conflict between the parties and concerns about X experiencing physical abuse whilst in the father’s care. Both parties were interviewed by SOCIT with respect to the incident. Those records, which are part of exhibit C, include two identical letters addressed to each of the parties dated 9 July 2019 stating that the matter had been fully investigated and that there was insufficient evidence to proceed with the criminal charges. The father points to this as an indication of the mother knowing that that was not proceeding, yet still not making X available to spend time with him. No doubt, that issue will be a matter for contest at trial.

13. What is of some concern in the mother’s affidavits and also in the statements that the mother made to the police and the Department after this incident, is a description, an escalation of allegations, about previous occasions of X returning to her care after visits with the father with bruises. She says that they occurred every week but that, because of X’s age, she could not communicate with him to find out what happened. Of particular concern is reference to the mother referring to a previous incident where she now says there was bruising on X’s face and the father’s hand and fingerprint on X’s face where she, at the time, believed what the father said was the reason for that.

14. Given the number of times both of the parties have made complaints to the police and made allegations against each other, it seems unlikely that the mother would not have made a report based on seeing a handprint on X’s face, as that would be very concerning.

15. One of the issues that was also of some concern last week was the position of the Department because, unfortunately, in their most recent response to s.67Z notices, the Department’s penultimate sentence was ambiguous about whether the Department’s position was that it supported the current arrangement being in place, which is where there has been no time occurring, or some other arrangement.

16. Due to that ambiguity and the mother’s indication to Counsel for the Independent Children’s Lawyer that her understanding from the Department was that they support it, her position of there not being time, or being supervised time, I arranged for Chambers to make inquiries of the Department’s liaison officer as to whether or not she could clarify the position with the Department. The liaison officer, Ms C, was able to speak to the Department workers and then gave evidence in Court as to the information that she had been provided. Unfortunately, by that stage, the mother had left Court and had refused to return that day and the matter had proceeded in her absence, as had been made clear to her that would happen.

17. In short, Ms C clarified that the Department’s position was that the father should be spending time with X, in accordance with the final orders. Ms C also indicated that there had been a further report to the Department on 17 September 2019 where that information had been assessed and the intake closed on 19 September 2019. Given that, I made a further order for the Department to produce material with respect to that intake assessment. Exhibit I, which was produced this morning after the parties had an opportunity to inspect it, is the further material with respect to that.

18. The Department records show that new allegations with respect to harm to X were not being raised and the Department’s position was that these were historical concerns that had already been assessed and investigated by the Department. There is a CRIS case note of a phone conversation with respect to the mother and a Department worker late on 20 September 2019. The worker indicates that she advised the mother that the Department would not be investigating those concerns as they had previously been raised and assessed and that the mother told the worker that she wanted the Department to remain involved as the father was likely to be given contact by the court.

19. The worker also records the mother asking what the position was of the Department with respect to X having contact with the father. She was advised that the disputes can be further explored through the Federal Circuit Court proceedings and that the Department would not be further involved and that the Department would assess any new concerns reported. If the Department assessed that those new concerns placed X at significant risk of harm the matter would proceed to an investigation.

20. The relevance of that entry goes to concerns about the mother’s willingness or ability to facilitate X’s relationship with his father on an ongoing basis. One of the orders that I made on Thursday was for the parties to attend on a family consultant this morning with X so that there could be observations and further report back from the family consultant. I note that the family consultant is not aware of the history of this dispute at any length and did not have the opportunity to read the material, which is not expected of a consultant conducting such a limited preliminary assessment. Indeed, it is very unusual to have an assessment such as this at this stage of the proceedings. However, I was concerned about the fact that X, not being four, had not seen his father for some seven months and therefore, an observation would be useful. There were also concerns with respect to whether or not it would be necessary to effect a change of residence or indeed, at worst, make a recovery order which would involve the police attending and removing X.

21. It is most fortunate that that has not had to occur and that the mother brought X to the child dispute section today and the consultant was able to conduct those observations and interview the parties. The observations of X and his father were positive. Unsurprisingly, at first, X was hesitant and that is unsurprising because of his young age and the length of time that he had not seen his father. But X played with his father and they engaged in conversation and Ms F describes the mood as light and easy, with no sense that X did not know his father or did not like him.

22. She referred to the father being moist eyed at the conclusion of that observation, which X may have noticed, and certainly, at times, the father has broken into tears today. He has expressed his distress today and last week at not seeing X for such a period of time and his position remains that X should be placed in his care immediately.

23. Ms F records that when she observed the mother with X afterwards, X referred to seeing his dad and that the mother responded asking him if it was good to see dad and then X was talking about wanting to see his father and became upset. The mother soothed and cuddled X. Concerningly, Ms F refers to the mother turning to her somewhat accusatorily asking what had been said between X and his father to cause him upset.

24. What is concerning about this is that it is an indication, and there are indications elsewhere, that the mother’s interpretation of these events is going to be the most negative. Her immediate thought is, what negative thing has been said with respect to X and his father, rather than the fact that there has been a lengthy period of separation between them.

25. That, amongst other material, highlights a concern about whether, despite the submissions that the mother has made today, she will continue to make X available to spend time with his father in accordance with orders I made. Certainly, the mother’s position today is that, as I have indicated, having heard from the expert, she agrees that there should be recommencement of the time with X but with a graduated introduction.

26. Having considered the lengthy material from independent sources that I have referred to, and noting the limitations with respect to the fact that the parties’ evidence and the evidence of experts has not been tested at trial, I am satisfied that X is not at an unacceptable risk if he spends unsupervised time with his father. One of the concerns that will need to be explored at trial is whether there is a long-term risk to X’s emotional and psychological wellbeing if he is not able to have a relationship with both his parents, provided those relationships are safe. Certainly the material indicates that, despite the escalating nature of the allegations and the separation and interruption to the father’s time with X, X continues to have a good attachment and bond with both his parents.

27. Ideally, X will have a substantial and significant relationship with both his parents moving forward, with his parents sharing parental responsibility and making decisions for the major issues concerning his welfare together. That would be the ideal, but the court does not deal with ideal situations when matters proceed to contested trials. As I have indicated, one of the real issues is going to be issues of safety for X, both with respect to his physical safety and exposure to family violence and physical abuse, as well as psychological abuse, but also harm to his emotional and psychological wellbeing in the long-term, in many years to come, if he is not able to have a relationship with both his parents.

28. It may well come down to the court having to look at what the least worst outcome would be for him and not an optimal outcome. Whether that means he has a relationship with one parent, whether that be the mother or the father and, at worst, not with the other at all, or, a much more limited or restricted relationship with the other parent with one parent only being responsible for the major issues concerning his care, welfare and development. There is little to indicate that the parents are able to exercise equal shared parental responsibility currently. If that situation does not change, then it may well be the case that the court will have to award parental responsibility to one person or perhaps parental responsibility with respect to particular issues such as education and health to one party, because it would not be in his best interests for there to be an equal shared parental responsibility order, where one outcome could be that the major decisions are not made for him in any timely manner which has been an unfortunate outcome in other cases such as this.

29. Certainly, whilst the father would say that the mother is deliberate in withholding X and lying to authorities and the Court, that is something that the mother denies. This also, it seems to me, on the material, that what it could well be is that the mother has an anxiety about X in the father’s care and an anxiety that seems to have increased significantly over time. It may well not be a reasonable anxiety but an anxiety nonetheless. That raises the issue about the mother’s ability to facilitate that relationship and that may well be something that is explored at a trial.

30. I am of the view that, at this stage, it is not in X’s best interests to make an order for an immediate change of residence. That would be unsettling for X and somewhat traumatic for him, given that the mother has been his primary carer. However, the mother is well and truly on notice that that may well be an outcome if there continues to be difficulties with the father spending time with X in the absence of there being unacceptable risk. I should, of course, indicate and it is somewhat trite to say, but it is impossible to eliminate risks altogether in any context.

31. I do think it is very important that the father’s time resume with X as quickly as possible and I will order that there be a step up of time rather than there being an immediate resumption of the final orders. I am of the view that overnight time should commence this week.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  15 October 2019