ABERCROMBIE & DAMON
[2019] FCCA 3543
•27 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABERCROMBIE & DAMON | [2019] FCCA 3543 |
| Catchwords: FAMILY LAW – Parenting – interim dispute – where DHHS appears amicus curiae – question of time with arrangements for children with father on an interim basis – suspension of final orders – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 67Z |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS ABERCROMBIE |
| Respondent: | MR DAMON |
| File Number: | DGC 3440 of 2011 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 27 November 2019 |
| Date of Last Submission: | 27 November 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 27 November 2019 |
REPRESENTATION
| Advocate for the applicant: | Ms Oldham |
| Solicitors for the applicant: | Cathleen Corridon and Associates |
| Advocate for the respondent: | In person |
| Solicitors for the respondent: | None |
| Amicus curiae for the Department of Health and Human Services: | Ms Raponi |
ORDERS UNTIL FURTHER ORDER
The matter be adjourned to 19 March 2020 at 10:00am for mention before Judge O’Sullivan.
Pursuant to section 11F of the Family Law Act 1975, the parties and the children X born in 2007 and Y born in 2011 (“the children”) attend upon a family consultant of the Federal Circuit Court of Australia at Dandenong (“the family consultant”) for the purposes of a child inclusive conference on 11 March 2020; AND:
(a)the mother and children to attend at 9:00am; and
(b)the father to attend at 10:00am.
The family consultant shall have leave to inspect any subpoenaed documents.
Pursuant to section 68L(2) of the Family Law Act 1975 the said children X born in 2007 and Y born in 2011 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.
The final orders made on 28 July 2014 be suspended.
The children X born in 2007 and Y born in 2011 (“the children”) live with the mother.
The children’s time with the father be suspended.
Pending further order of the Court on the adjourned date, each of the parents forthwith do all acts and things necessary to make an application to V Contact Centre, Suburb W for the purpose of the father spending supervised time with the children at V Contact Centre.
Pursuant to section 91B of the Family Law Act 1975 it is requested that the Department of Health and Human Services intervene in these proceedings.
Upon request from the said Department, the Court do provide copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in these proceedings.
The father forthwith do all acts and things necessary to attend upon a psychiatrist as nominated by the Independent Children’s Lawyer for the purpose of the preparation of a report providing an assessment of the father’s psychiatric state, such report to be released prior to the adjourned date, and that the psychiatrist be requested to address:
(a)the father’s history (including relevant medical history);
(b)the father’s psychiatric, psychological and emotional health and functioning;
(c)any relevant diagnosis or description of the father’s personality, presentation or functioning;
(d)if appropriate, suggested treatment or management, and the likely prognosis; and
(e)any incidents of the father’s functioning that may be relevant to his capacity to parent and meet the needs of their children.
The cost of the report be borne by the father AND THAT Victoria Legal Aid be requested by him to fund same.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)A transcript of the reasons for judgment delivered ex tempore by his Honour Judge O’Sullivan will be provided to all parties, including the Department of Health and Human Services.
(B)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(C)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
(D)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.
(E)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.
(F)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(G)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Abercrombie & Damon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3440 of 2011
| MS ABERCROMBIE |
Applicant
And
| MR DAMON |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
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.
Background
Before the Court today are proceedings involving a dispute over parenting orders under the Family Law Act 1975 (Cth) for X born in 2007 (“X”) and Y born in 2011 (“Y”) (collectively, “the children”).
The applicant in this matter is MS ABERCROMBIE (“the mother”) and the respondent is MR DAMON (“the father”).
The mother is 37 years old, lives in Suburb W and says she does not work outside the home. The father is 45 years old, lives in Suburb K, describes his occupation as “volunteer” but admits he has not undertaken paid employment for some time.
The parties married in 2006. The date of separation is in dispute but it appears to have occurred some time between 2008 and 2011. For present purposes, it is not necessary to resolve the date of separation, although I note that on one version of events, the child Y would have been born after the parties separated.
The parties have been before the family law courts, involved in the Children’s Court of Victoria and come to the attention of the Victorian child protection authorities over many years.
The mother commenced the current proceedings by application for parenting orders filed on 24 September 2019. The application was given a first return date on 25 November 2019. The father was served with the application and filed a response on 13 November 2019.
When the matter came before the Court on 25 November 2019, the mother was represented by Ms Oldham. The father appeared in person and Counsel appeared on behalf of the Victorian Department of Health and Human Services (“the Department”). Counsel for the Department sought and was granted leave to appear as amicus curiae.
The raison d'etre for the Department’s application to appear amicus can be found in the responses that have been provided to the Court following the notices of risk filed by both the mother and the father and because of the Department’s involvement in the Children’s Court of Victoria. The mother filed a notice of risk accompanying her initiating application in September 2019.
On 19 November 2019, the Department provided the following information to the Court:
“The following information is provided by the Department of Health and Human Services (DHHS) in response to the above FCC Section 67Z Notice of Risk. The Department of Health and Human Services, Child Protection has received the Notice of Risk and in accordance with the protocol between the Department and the Family Court of Australia and the Federal Circuit Court of Australia, the Department intends to:
·Appear as amicus curiae in proceedings
·Withdraw further proceedings in the Children's Court of Victoria
The Department has notified the Children's Court of Victoria of its intention to withdraw an application to extend a Family Preservation Order to Ms Abercrombie pending an application to the Federal Circuit Court of Australia. The Children's Court of Victoria has listed the matter for a mention hearing on 25/11/19 in order to dismiss the current application in line with the Department's recommendation.
Statement of Child Protection History
There have been 10 previous reports made to Child Protection from November 2012 to March 2016. The reports appear to be largely malicious in nature and relate to Family Law Court proceedings. Previous concerns raised to Child Protection include:
November 2012 – Children exposed to family violence between father and step-father. Assessed as custody and access issue for Family Law Court. No investigation.
February 2013 – Concern that Y allegedly received a burn in mother's care in September 2012. Concerns consistent with previous report and no information to suggest the children were at immediate risk of harm. No investigation.
August 2013 – Concerns that Y returned from father's care with faeces in her nappy. No investigation.
October 2013 – Concerns raised by reporter in relation the father making threats to harm the children during access (sic). During Child Protection investigation and intervention, concerns noted in relation to the father's mental health; the father presented as erratic and fixated on the mother and the current situation. Likelihood of physical and emotional harm was substantiated by Child Protection in relation to the father's mental health and he was assessed as responsible for harm. As mother obtained full exclusion IVO for her and the children, was pursuing the matter in Family Law Court and was acting protectively it was assessed that there was no need for legal intervention at the time.
December 2013 – Report regarding concerns that parenting orders had been made in the Family Law Court allowing the father overnight contact which did not properly recognise the concerns in relation to his mental health. No investigation as it was assessed as inappropriate for Child Protection to seek to override Family Law Court orders.
December 2013 – Further concerns raised in relation to father's mental health but mother remains vigilant during access handover. No investigation.
January 2014 – Report related to father seeking additional access with the children. No role identified for Child Protection and no investigation.
March 2015 – Alleged that the mother had left the children unsupervised. X was recorded by his father on 12/01/15 stating he was left alone for 5 minutes whilst the mother went to the shops; however, it was difficult to establish what the child was saying and the context of the allegations· . Information was vague and limited and matter remains before Family Law Court. No investigation.
February 2016 – It was alleged that the mother had breached the Family Law Court orders in relation to communicating with the father around Y's diabetes. No evidence that Y's health at risk and ongoing tension between parents noted. No investigation.
March 2016 – Concerns relating to adherence to Family Law Court agreement and children arriving late for the father's access. No investigation as children not at risk of harm and concerns relate to Family Law Court order.
Summary of Current Protective Concerns and Outcomes
The current child protection report related to the administration of insulin to manage Y's diabetes in the context of access arrangements with the father and communication challenges between the parents. During investigation and intervention there were additional concerns raised in relation to the father making threats to kill the children (historical) and the father exposing X and Y to emotional and psychological harm, family violence, medical neglect, inappropriate physical discipline, lack of parenting capacity and parental mental health concerns. Whilst child protection was involved Mr Damon was also highly obstructive of Y receiving an insulin pump in order to be able to better manage her diabetes.
X and Y have remained in the care of their mother and step-father Mr B for the duration of the child protection intervention. There have been no concerns in relation to their capacity to care for the children during this time on a Family Preservation Order and the Department hold no protective concerns with regard to them.
Since a Family Preservation Order was made for the children on 29/05/18, Y has seen her father once on 08/08/18 and X has not seen his father. Further contact was arranged between Y and her father on 05/10/18 but did not proceed as Y became extremely upset and stated "I thought I had to" when asked whether she wanted to see her father. Both children have consistently maintained that they do not wish to see Mr Damon and as such have had no contact with him. Feedback from the children's psychologists indicate that they present with anxiety about their father and have both disclosed feeling fearful of seeing him. On 18/11/19 X stated for the first time that he felt like he should see his father as he is his father but Y continued to present as anxious about potentially being forced to see her father.
The Department hold serious concerns about Mr Damon’s capacity to perceive and respond to the children's need, his threats to harm the children, his unresolved anger, attempts to control the mother, and the children's refusal to see him, which he does not accept. He remains highly focused on historical incidents and his perception of injustice rather than rebuilding his relationship with the children. Mr Damon prioritises his individual needs and refuses to listen to responses to questions that he asks. Mr Damon presents as highly controlling, manipulative and frequently emails the various DHHS staff and members of the executive, members of parliament, the Court registry, Victoria police, the ombudsman and L Medical Centre staff.
In a psychological assessment of Mr Damon, Ms Z noted potential difficulties with regard to psychosis, behavioural control, relationships and behaving in a socially acceptable manner because of the intensity of his thoughts and feelings. She recommended a psychiatric assessment which was completed by Dr M. Dr M did not identify any psychiatric symptoms but noted that the father could be considered unusually preoccupied and impassioned. He advised that the father's behaviour was consistent with the construct 'post traumatic embitterment' which is not an endorsed diagnosis in DSM-V or ICD-10 but is increasingly recognised as a helpful means for formulation.
Given that the mother continues to provide appropriate care for the children and act protectively, it is the view of the Department that there is no ongoing role for Child Protection and that the matter is better suited to the Federal Circuit Court at this time. The ongoing issue is X and Y's unwillingness to see the father for over a year and the father's inability to accept this which prevents any progress being made to re-establish the relationship.”[1]
[1] Marked For Identification 1.
The father filed a notice of risk along with his response on 13 November 2019. When the matter came before the Court on 25 November 2019, the Department was yet to provide the Court with a s.67Z response to that notice of risk. So the matter was stood over in the duty list to the following day.
The s.67Z response to the notice of risk filed by the father was provided by the Department to the Court on 26 November 2019 and is as follows:
“The following information is provided by the Department of Health and Human Services (DHHS) in response to the above FCC Section 67Z Notice of Risk filed on behalf of Mr Damon. The Department of Health and Human Services, Child Protection has received the Notice of Risk and in accordance with the protocol between the Department and the Family Court of Australia and the Federal Circuit Court of Australia, the Department has:
·Appeared as amicus curiae in proceedings
·Withdrawn further proceedings in the Children’s Court of Victoria
On 25/11/19 the Children’s Court of Victoria struck out the Department’s application to extend the Family Preservation Orders (29/05/2018 – 28/05/2019) relating to X and Y.
A statement of child protection history and summary of current protective concerns and outcomes is detailed in the Department’s response to the FCC Section 67Z Notice of Risk filed on behalf of Ms Abercrombie (attached).
Summary of Child Protection Information relating to allegations raised by Mr Damon
1.Mr Damon states that he believes the children were psychologically harmed based on the content of the Family Report dated 10 January 2014. Child Protection received a report on 29/01/14 in which the reporter alleged that X has disclosed being smacked by the step father Mr B the weekend prior. The reporter who presented in person was described as “agitated and on edge” throughout the interview. SOCIT were notified in relation to the smacking incident but took no further action. The reporter provided a copy of the Family Report which was reviewed. Whilst the reporter raised X’s differentiation between his ‘good dad’ and ‘bad dad’ referred to in paragraphs 57 and 67, this was not the primary focus of the report and it was not established that it placed the children at risk of emotional harm. The Department assessed that the matter was being address through the Federal Circuit Court and that there was no evidence to indicate that the children were at immediate risk of significant harm. As such, the matter was not investigated.
2.The allegation that Y was seriously burned in the mother’s care was first raised with the Department on 26/11/12 at which time the reporter explained that the burn occurred whilst Y was helping the mother cook. The information was secondary to the reporter’s concerns that the children had been exposed to family violence between the father and step father. It was the view of the Department that appropriate action was being taken through the Federal Circuit Court and IVO applications at the time. The allegation was again raised on 25/02/13 at which time the reporter stated that the burn occurred in September 2012 as a result of a heater in the mother’s home. The reporter was unable to provide any information to indicate that the alleged burn was a result of direct harm or neglect and the reporter was aware that the father had not sought medical attention for the burn. SOCIT were advised but took no further action and child protection took no further action.
3.The father alleges that the step father assaulted both himself and Y on 23/11/12. The report to children protection on 26/11/12 addresses this (sic). The reporter advised that the father attended the mother’s home to collect the children for access and the step father put his hand out and gently pushed Y back into the family home when she tried to run to the father. When questioned the reporter stated that Y didn’t fall and wasn’t pushed. The reporter alleged that a physical altercation followed whereby the step father attempted to choke the father and the father punched the step father. The reporter advised that police were called and both the mother and the father made allegations against one another. Although the children were likely exposed to family violence, there was nothing in the report to indicate that a child was physically harmed and the contact arrangements were subject to ongoing Federal Circuit Court proceedings.
4.I am unable to locate any information on the Department’s file relating to the allegation that the mother assaulted the father on 04/02/13. Child protection received a report on 25/02/13 and spoke with the father during the intake phase. At this time the father did not raise any concerns regarding the alleged assault.
5.In relation to the accessibility of the mother and step father, the Department’s file indicates ongoing animosity and communication issues between them and the father. It appears that there have been repeated issues with contact arrangements and dissatisfaction regarding decisions made through the Federal Circuit Court. Although poor communication has complicated contact, there is no information to indicate that the children have been at risk of harm in relation to communication specifically.
6.The father refers to “multiple fabrications and pre-historic false events” but it is unclear what this specifically relates to or how it places a child at risk. Throughout the most recent child protection intervention both the mother and step-father have remained focussed on the present circumstances of the children and meeting their current needs. In contrast, the father has been predominantly focussed on historical interactions with child protection, his interactions with the children more than a year ago and the family report completed for the Federal Circuit Court more than five years previously. This has prevented the father from rebuilding his relationship with the children or attempting communication strategies such as writing letters as he is unwilling to accept that the children’s attitude towards him has changed.
In summary, it is the view of the Department that X and Y are not at risk of harm in the mother’s care and that she continues to act protectively.”[2]
[2] Marked For Identification 2.
Interim orders sought
On 25 November 2019, the mother and Counsel for the Department provided the Court with a minute of the interim orders that they sought.[3] The mother and the Department were ad idem as to the appropriate interim orders for the children. They were:
[3] Exhibit A1.
1.The final parenting orders dated 28 July 2014 be suspended.
2.The children X born in 2007 and Y born in 2011 (“the children”) live with the mother.
3.The parties do all such acts and things necessary to enrol in the V Contact Service at Suburb W and remain on the waiting list until further order.
4.Pursuant to section 68L(2) of the Family Law Act 1975 (Cth), the interests if the children be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
5.Pursuant to section 11 of the Family Law Act 1975 (Cth), the parties and the children attend upon a family consultant of the Federal Circuit Court of Australia for the purposes of a Child Inclusive Conference.
6.Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
7.Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
On 25 November 2019, the father told the Court the interim orders he sought were as contained in his response filed 13 November 2019. That position embodied in the interim orders sought in his response has been marked as Exhibit R1. They were:
1.The mother and the father have shared equal custody of the children (sic)
2.Such further and other orders as this honourable court deems appropriate (sic)
Interim or procedural orders sought:
3.The Final orders dated 28 July 2014 be re-instated (sic)
4.The 2014 Family Report be up-dated “this matter should be reviewed” by Ms U (as per content 57/67 Reserved Final Orders) (sic)
5.Father contact with the children “X 30/6/2007” and “Y 8/3/2011” have regular fortnightly access from 5pm Friday until 5pm Sunday. (sic)
6.The mother to drop off the children at the nearest Mc Donald’s location nearest to the father (sic) residence. The father to return the children to the mother to the nearest Mc Donald’s to the mother (sic) residence. (or visa/a/versa, equal travel) (sic)
7.The father to have equal access time during each of the school holidays.
8.The mother and father to communicate by phone calls (sic) and texts regarding the children and for the purpose of the father to speak with the children.
9.The father and mother to attend Y’s diabetes appointments.
10.The mother and father have equal shared time during Christmas, Easter and children’s birthdays at times to be agreed.
11.Mr B must not communicate with the father and must not interfere or facilitate change overs.
12.The honourable court to “reserve” it’s (sic) final decision until such complete and impartial understanding of the historical facts can be determined and rightfully established and can be determined. (sic)
Agreed chronology
Given the period of time the Department has been involved with the mother, the father, and, more importantly, the children, the parties prepared and tendered an agreed chronology. This chronology outlines the parties’ involvement with the Children’s Court of Victoria from 27 April 2018 to 25 November 2019. It provides as follows:
“27/4/18 Protection Application issued.
Bail justice makes an Interim Accommodation order (‘IAO’) to mother.
30/4/2018 1st Court Appearance
IAO to mother made with the following conditions:
1.Mother and stepfather must accept visits from and cooperate with DHHS.
2.Father must accept visits from and cooperate with DHHS.
3.Mother and stepfather must accept support services as agreed with DHHS.
4.Father must accept support services as agreed with DHHS.
5.Father must not live or have contact with the mother, stepfather and children other than court ordered contact.
6.Father must not expose the children to physical or verbal violence.
7.Father must not threaten or assault DHHS staff.
8.Father may have contact with the children for a minimum of once per week at times and places as agreed between the parties. DHHS or its nominee will supervise contact unless DHHS deems that supervision is not necessary. If the children do not wish to attend contact contact (sic) will not go ahead.
9.Father must engage with family violence counselling through ‘Speak Up’ men’s behaviour change group as directed by DHHS and must allow reports to be given to DHHS.
10.Father must not have unsupervised contact until child protection have an assessment outcome from the Speak Up Men’s Behaviour Change Group Specialist.
29 May 2018 2nd Court Appearance
Protection application proven
Family Preservation Order made to the mother for a period of 12 months
Conditions as per the I.A.O made on 30/4/2018 save that:
(i)the condition that the father is to engage in Men’s Behaviour Change is amended to ‘continue to engage’ as the father had already commenced the course.
(ii)additional condition that the child may have respite as agreed between the mother and DHHS.
(iii)additional condition that the father must not hit or hurt the child for any reason.
(iv)the condition that the father must not have unsupervised contact until child protection have an assessment outcome from the Men’s Behaviour Change Group Specialist is removed.
*Proof of the protection application and the family preservation order was made by consent.
It is noted on the court order that “the father does not agree to the allegations regarding proof but does not oppose the order in order to avoid a final contest.
20 May 2019 DHHS issue an application to extend the family preservation order.
Application seeks the order be extended for 3 months so the following can occur:
(i)recommendations of Dr M’s psychiatric report can be followed
(ii)allow an application to the Federal Circuit Court.
28 June 2019 1st Court Appearance for Extension Application
·The matter was not listed in front of the ‘docketed’ Magistrate – matter adjourned to be heard in front of Magistrate AA.
There is a notation on the court order that “DHHS intends to withdraw involvement upon suitable family law orders being obtained by the mother and the father opposes this course”.
4 July 2019 2nd Court Appearance for Extension Application
·Matter was not listed in front of the ‘docket Magistrate’ who was not sitting on 4/7/2019 – matter adjourned to be heard by Magistrate AA.
There was a notation on the order – “The Dep (sic) intends to withdraw involvement upon suitable family court orders being obtained by the mother.
Father opposes this course of action.
“Stay Children (sic) Court as DHHS refused FCC return 8 May 2018 at time judge and father agreed.”
22 October 2019 3rd Court Appearance for Extension Application
·Magistrate AA indicates that he can’t do anything about the fact that the children don’t want to see their father – matter should be dealt with at the FCC on 25/11/19.
·Mother’s IVO application (including the children and stepfather) are adjourned to Dandenong Magistrates Court for a Directions Hearing on 11/12/19.
·Magistrate indicates that the real issue is about contact which is not a child protection matter.
25 November 2019 4th Court Appearance for Extension Application
Magistrate (sic) Court makes the following orders:
1. DHHS application to withdraw is granted.
2.DHHS application to extend the Family Preservation Order is withdrawn/struck out.
3.All other applications not yet finalised (except Protection Applications) are struck out.”
It does not appear controversial that by virtue of the order made by the Children’s Court of Victoria on 25 November 2019, the extant orders for the children are those parenting orders under the Family Law Act 1975 (Cth) that were made on 28 July 2014 (“2014 Orders”). Those orders provide:
“THE COURT ORDERS:
1.THAT there be orders in terms of the Minute of Proposed Orders signed by the parties sealed and attached hereto (“the Minute”).
2.THAT the Minute be placed upon the court file and marked “Exhibit A”.
IT IS DIRECTED:
3.THAT the solicitors for the applicant mother do engross the Minute and provide an electronic duly certified copy in MS WORD format of the same via email (“the Copy”) to the registry of this court within 7 days.
4.THAT upon delivery of the Copy to the court, the within orders be extracted and the copy be attached thereto.
AND THE COURT NOTES:
5.THAT pursuant to ss.65DA(2) and 62 of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
EXHIBIT A
IT IS ORDERED BY CONSENT:
1.That all previous parenting Orders be discharged.
2.That the mother and father have equal share parental responsibility for the children namely X born in 2007 and Y born in 2011 (“the children”).
2A.In the event that the parties cannot agree in relation to
matters concerning the long term care welfare and development of the children they will do all acts and things necessary to attend mediation at an agreed authorized relationship centre with such mediation to occur no more than once in a calendar year from 20153.That the children live with the Mother.
4.That the children spend time and communicate with the Father as follows:
i.During the school term from the conclusion of school if possible or otherwise from 6.00 p.m. on Friday until 5.00 pm on Sunday each alternate weekend commencing Friday, 8 August 2014;
ii.From the Term 1 holidays in 2015 for a period of 1 week during each of the school term holidays by agreement and failing agreement from 6.00 p.m. on the last Friday of the school term until 6.00 p.m. on the following Friday;
iii.In 2015 from 10.00 a.m. on Christmas Eve until 3.00 p.m. on Christmas Day and each alternate year thereafter;
iv.From 3.00 p.m. on Christmas Day until 6.00 p.m. Boxing Day in 2014 and each alternate year thereafter:
v.During the long summer holidays for 2 periods of 5 nights by agreement and failing agreement from 6.00 p.m. on Boxing Day until 10.00 a.m. on 31 December and from 10.00 a.m. on 14 January until 10.00 a.m. on 19 January until the child Y turns 7 years;
vi.From the conclusion of school in 2015 for one half of the long summer holiday period at times to be agreed between the parties and in default of agreement on a week about basis commencing on the first Saturday after Christmas Day;
vii.From 5.00 p.m. on Father’s Day Eve until 5.00 p.m. on Father’s Day;
viii.For 3 hours on each of the children’s birthdays at times to be agreed between the parties and in default of agreement from 3.30 p.m. until 6.30 p.m.
ix.By telephone each Wednesday between 5.00 p.m. and 6.00 p.m. and each alternate Sunday when the children are not in the father’s care between 5.00 p.m. and 6.00 p.m. and as otherwise requested by the children with the father to initiate the call to the mother’s mobile and the mother to facilitate the call or in the event the mother cannot facilitate the call she will return the call as soon as possible;
x.On the ‘Oz Tennis Day’ in January each year from 10.00 a.m. until 5.00 p.m. or as otherwise agreed between the parties;
xi.Such further and other times as may be agreed between the parties in writing.
6.The changeover occur wherever possible at the children’s school or kindergarten and otherwise as agreed between the parties in writing and in default of agreement at 6.00 p.m. in the Foyer of the Suburb F Police Station at the commencement of the children’s time with the father and at 5.00 p.m. in the Foyer of the Suburb BB Police Station at the conclusion of the children’s time with the father or at such other times as provided for in these orders.
7.The parties communicate all issues in relation to the children by text message.
8.That the father’s time with the children pursuant to these orders be suspended as follows:
i.In 2014 from 10.00 a.m. on Christmas Eve until 3.00 p.m. on Christmas Day and each alternate year thereafter;
ii.From 3.00 p.m. on Christmas Day until 6.00 p.m. Boxing Day in 2015 and each alternate year thereafter:
iii.From 5.00 p.m. on Mothers’ Day Eve;
iv.For 3 hours on each of the children’s and their siblings’ birthdays at times to be agreed between the parties and in default of agreement from 3.30 p.m. until 6.30 p.m.
9.The parties ensure that at all times they provide to the other party their current contact telephone number and residential address.
10.Each party inform the other party of any serious medical emergency, illness, hospitalisation or injury sustained by the children whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the children together with the contact details for the treating doctor/s.
11.Each party be and is hereby restrained from denigrating any other party in these proceedings or any member of any other party’s family in the presence of hearing of the children or allowing any other person to do so.
12.Each party be and is hereby restrained from discussing these proceedings or any matters in dispute arising from these proceedings in the presence of hearing of the children.
13.Each party will authorize the other party to obtain copies of school or kindergarten reports and any other written information available to a parent from the school or kindergarten and otherwise to attend any school or kindergarten events and activities ordinarily attended by parents.
14.Each party will authorize the other party to contact and communicate with any medical or allied health professionals involved with the children and notify the other party of any changes to the children’s treatment providers.
15.Each party will follow all reasonable directions and recommendations of any medical or allied health professionals involved with the children, including arranging and attending appointments as required.
16.Without admitting the necessity for the same, the mother will do all acts and things necessary to encourage the children to call the mother’s partner, “Mr B” and the father, “Dad”.
17.Each party be permitted to telephone the children during term holidays when they are in the care of the other parent each Wednesday between 5.00 p.m. and 6.00 p.m. with the absent parent to initiate the call to the mobile phone of the parent who has care of the children and that parent to facilitate the call.
18.Certify for advocacy.
19.Pursuant to s65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
20.That all applications be otherwise dismissed and removed from the pending cases list.
IT IS NOTED:
A.The father seeks the Court to note that the contents of paragraphs 57 and 67 of the Family Report dated 10 January 2014 be reserved.
B.The father will use his best endeavours to ensure that any tenants cannot access the section of the home in which the father lives during any time the children are in his care.
C.The children’s time with their father during the school term will always recommence after each holiday as if the holiday time had not occurred.
D.If the father can pick the children up from school or kindergarten on each alternate Friday during term time he will provide the mother with 24 hours notice in writing (sms/text).
E.Unless otherwise agreed in writing, Mr B will not facilitate changeover.”
Interim dispute
The mother seeks that the 2014 Orders be suspended until further order. This position is supported by the Department to the extent that it is consistent with the recommendations made in their s.67Z responses to the Court.
The father’s position is that the 2014 Orders are in the children’s best interests and should be allowed to continue. However it is not controversial that the children have not spent time with the father since August 2018, and the children have been the subject of orders made by the Children’s Court of Victoria since approximately April 2018 until 25 November 2019.
The mother’s position for the purposes of the interim hearing has altered slightly since the filing of her application. That is understandable given the application was made in advance of the orders made by the Children’s Court of Victoria on 25 November 2019. The mother’s affidavit in support of her initiating application records that the Department had advised her to make this application.[4]
[4] Affidavit of Ms Abercrombie affirmed and filed 24 September 2019.
The chronology prepared by the parties demonstrates that the Department had been seeking to extend an order of the Children’s Court of Victoria which, by operation of the Family Law Act 1975 (Cth) (“the Act”) and the relevant Victorian State legislation, essentially overrides the operation of the 2014 Orders.
The mother’s interim application was made in anticipation of any orders being made by this Court coming into effect upon:
a)the expiry of any orders made in the Children’s Court of Victoria; and
b)the Department withdrawing their involvement with the family.
This happened on 25 November 2019 and the matter was adjourned to yesterday 26 November 2019 to await the response from the Department to the father’s notice of risk. The matter was adjourned from yesterday to today to enable the parties to make submissions in relation to the mother’s application.
Evidence
The mother deposed in her affidavit material that initially following the parties’ separation, the father was seeing the children regularly.
However, the mother appears to chart the change in her post-separation relationship with the father from at or around the time that she told the father that she had become involved with, and was then going to be in a relationship with, the person who is now her new husband and with whom she has since had four other children.[5]
[5] Affidavit of Ms Abercrombie affirmed and filed 24 September 2019.
The mother summarises the Court’s initial involvement with the parties in 2013 as follows:
a)final orders were made in July 2013;
b)the mother alleges there were threats made by the father in October 2013, and as a result of those threats and concerns for the children, the children did not spend any time with the father from October to December 2013; and
c)there were then further final orders made in July 2014 (the 2014 Orders).
Broadly speaking, the 2014 Orders provide for:
a)the parties to have equal shared parental responsibility for the children;
b)the children to live with the mother; and
c)the children to spend what is usually described as substantial and significant time with the father.
The mother deposes to the existence of ongoing problems since the 2014 Orders were made, including:
a)contravention proceedings which were dismissed in 2015;
b)an application brought by the father which was dismissed in February 2018;
c)the Department’s involvement with the children in 2018 as a result of concerns the Department had held since as long ago as 2013.
d)the family preservation order made in the Children’s Court of Victoria in May 2018; and
e)the application for an extension of the abovementioned family preservation order made by the Department, which, given the events which have transpired since then, was either not entertained or dismissed by the Children’s Court of Victoria.
The father’s affidavit details a litany of complaints, not only about the mother going back many years, but also the involvement and conduct of the Department.[6]
[6] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019.
In his affidavit, the father:
a)repeatedly denied the claims made by the mother;
b)maintained that he is always concerned for the welfare of the children;[7]
c)referenced what he described as ‘prehistoric events’ which appeared to have occurred in 2012, 2013 and 2014;
d)maintained that all of the allegations made against him are fabrications, in a trenchant and steadfast manner;
e)claimed his concerns about the mother, her partner, and their behaviour towards the children, or the damage done to the children due to the Department’s involvement, have been ignored by the Department;[8]
f)claimed that the Department has manufactured material against him;
g)maintained that the children have been influenced by the mother and/or by the Department;
h)stated he has sought a review of the applications brought by the Department in 2018; and
i)attached a copy of a psychiatric report completed by Dr M[9] in compliance with orders made in the Children’s Court of Victoria (“the psychiatric report”).
[7] For example, see paragraph [46].
[8] For example, see paragraph [112].
[9] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1.
Dr M is qualified to offer an opinion as to whether the father suffers from a psychiatric or mental health issue which would pose a risk to the children. The psychiatric report at paragraphs [1] to [13] said:
1.Mr Damon is a 44 year-old man. His development is marked by the absence of a secure and stable relationship with his biological father. His mother and abusive stepfather raised him. He learnt that his stepfather was not his biological father when he was aged 12. He first met his biological father when he was aged 19. His father told him he was a mistake. The combination of developmental difficulties likely influenced Mr Damon’s determination to establish and maintain a stable family unit as an adult. He was adamant he would not subject his children to similar instability and dysfunction when he became a father.
2.Mr Damon proudly reported that he managed to independently create a satisfying and rewarding life. He was particularly proud that he established an impressive home base in Suburb K. He had hoped to foster a family unit that flourished in the home environment.
3.Mr Damon’s relationship with his ex-wife Ms Abercrombie was troubled. He reported that he promptly fell in love with Ms Abercrombie, but problems promptly emerged in the context of an intrusive mother-in-law. He attributed untenable relationship dynamics to his mother-in-law. The marriage was marked by multiple separations and reconciliations.
4.Mr Damon definitively separated from Ms Damon in 2008 but had a second child in 2011. The specific chronological details of the separation and living arrangements are unclear. Nevertheless, Mr Damon reported that Ms Abercrombie informed him she was going away for a period when she was in the midst of forming a new relationship with Mr B. This complex situation soon led to the institution of an Intervention Order. Mr Damon explained that he tried to convey his love for Ms Abercrombie in the form of displaying photographs and writing ‘I love you’. I gather this conduct constituted ‘stalking’, as it was unwanted communication. Without further details pertaining to this historical incident it is not possible to offer a further opinion.
5.Mr Damon was clearly deeply aggrieved with the final separation and struggled to adjust. His dream to maintain a stable family unit was extinguished. It appears Mr Damon and Abercrombie became embroiled in complex Family Law matters based on the Family Report he provided. I have not received the complete list of documents, including Final Judgement and Orders, but matters appears to have marked by complexities, including allegations that Mr Damon threatened to harm the children at the G Street Dam. Mr Damon is adamant that this allegation, and other allegations, was malicious and false. The DHHS would be advised to obtain the full records of past proceedings to ensure there is complete and impartial understanding of the historical facts.
6.Mr Damon is adamant he never committed family violence, including verbal and physical. He noted that the Family Report highlighted that Ms Abercrombie confirmed that he was not physically violent. However, Ms Abercrombie noted the relationship was marked by hostilities.
7.Mr Damon expressed considerable frustration with the DHHS in responding to the recent complaints relating to his management of Y’s diabetes. He seemed to provide a reasonably plausible explanation for his reluctance to agree to utilise an insulin pump based on concerns that he and Ms Abercrombie were not engaging in adequate communication to ensure the insulin pump could be safely managed. The DHHS may need to investigate the medical recommendations regarding separated parents managing an insulin pump. This issue appears to be obsolete now, as he has agreed to it being used following direct advice from Y’s doctor. Mr Damon refuted that he was not capable of managing Y’s diabetes. He noted that he had appropriately taken Y to hospital on an occasion when she was not eating and he provided a medical letter confirming the same.
8.Mr Damon’s presentation is noted in the mental state section of this assessment. He was distinctly impassioned and aggrieved that the DHHS, in his opinion, had inappropriately responded without full consideration of the relevant issues. The intensity of his response is arguably unusually strong, but perhaps more understandable with consideration of his developmental history, relationship history, and determination to maintain a relationship with his children. He also reported that he had previously enjoyed a close relationship with his children. I am unable to provide an opinion as to whether his perspective is meritorious or not.
9.Mr Damon’s presentation does not represent a definable mental illness. He could be considered to have an underlying vulnerable personality structure. He likely lacks skills with effective emotional regulation and he probably has a tendency to feel persecuted in situations when matters don’t resolve in a manner that he feels is just. His presentation has paranoid qualities that possibly represent a paranoid-type personality structure. This opinion is based on a sense that he is possibly broadly mistrusting, hypersensitive and suspicious. I am not persuaded that he has an underlying delusional disorder or psychotic illness as was surmised in the psychological report.
10.Mr Damon might be considered to be unusually preoccupied and impassioned with his circumstances. An alternative description of Mr Damon’s presentation could be ‘post traumatic entitlement’; a descriptor for a person who has experienced significant emotional or behaviour problems which appear after a common stressful event (in this case divorce). This construct is not an endorsed diagnosis in DSM-V or ICD-10, but increasingly recognised as a helpful means for formulation. The triggering event is experienced as unfair and unjust and it leads to feelings of embitterment, frustration and anger. Mr Damon’s heightened emotional response when reflecting on his circumstances is commensurate with his pent frustration and sense of helplessness. He dearly wants to be understood and heard and is eagerly waiting an opportunity to be validated in Court. He has signs of being a querulant based on his apparently obsessive pursuit of justice by complaining to multiple authorities.
11.Without assessing the children and learning more about their lived experience with Mr Damon as their father it is not possible to opine whether he has been able to function as a good father as he has asserted. A person with a personality type such as Mr Damon might be experienced as uncomfortably intense and overbearing as a child. Mr Damon’s insight into his manner would appear to be lacking. He is adamant that he has historically had a sound relationship with his children. He has highlighted that the Family Report refers to concerns that Mr B denigrating him to the children and engaged in deliberately alienating X from Mr Damon (point 57). He also claims Ms Abercrombie similarly marginalised the children from him. This aspect to this case needs further evaluation.
12.Mr Damon is clearly anguished and distressed by his circumstances. It is difficult to provide a definitive opinion regarding his capacity to meet his children’s needs and make parental decisions in the best interests of the children without more objective and reliable information. Mr Damon protests that he has been a very capable father. The dynamic between the relevant parties are too complex to synthesize in this singular assessment.
13.Mr Damon may benefit from working with an experienced psychologist family with such complex family matters to support him through the process together with assisting him in more effectively regulating his emotions and manage his decisions more effectively. Mr Damon’s apparently limited insight and entitlement may limit his engagement and flexibility to consider altering his manner and approach.[10]
[10] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1.
By way of summary, Dr M stated that the father:
a)may have an underlying vulnerable personality structure;[11]
[11] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 9.
b)lacks emotional regulation;[12]
[12] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 9.
c)has a tendency to feel persecuted;[13]
d)possibly has a paranoid-type personality structure;[14]
e)presented as unusually impassioned;[15]
f)was possibly labouring under what was described as “post‑traumatic embitterment”;[16]
g)could be described as uncomfortably intense and overbearing;[17]
h)appeared to be lacking insight;[18]
i)should receive psychological treatment;[19]
j)had limited insight into his capacities;[20]
k)had an “entitled” attitude which limited his insight;[21] and
l)that it was difficult to provide an opinion regarding the father’s (parenting) capacity.[22]
[13] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 9.
[14] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 9.
[15] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 10.
[16] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 10.
[17] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 11.
[18] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 11.
[19] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 13.
[20] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 13.
[21] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 13.
[22] Affidavit of Mr Damon affirmed 12 and filed 13 November 2019, Annexure 1 at paragraph 12.
The father may not have realised the import of the psychiatric report. However, the father makes allegations that the mother selectively quoted from the psychiatric report; yet the father himself engages in the very same vice in his material.
The mother’s submissions
Submissions made on behalf of the mother were to the effect that, for the reasons set out both in the Department’s s. 67Z responses:[23]
a)the 2014 Orders should be suspended;
b)the children should live with the mother until further order; and
c)the children’s time with the father should be reserved.
[23] Marked For Identification 1; Marked For Identification 2.
The other orders sought by the mother, as contained in Exhibit A1, include:
a)pending further order, the parties enrolling at a supervised contact service for the purposes of spending supervised time with the father;
b)an Independent Children’s Lawyer should be appointed; and
c)the parties and the children should attend, once other steps have been taken, a child inclusive conference, pursuant to section 11F.
Counsel for the mother urged the Court to err on the side of caution, in light of:
a)the mother’s material;
b)the agreed chronology;
c)the mother’s genuine fears about the safety of the children;
d)concerns about the father’s mental health; and
e)the children’s ongoing need for therapeutic intervention.
The mother further submitted that:
a)orders made by the Court as proposed by her would ease the children’s ongoing and heightened anxieties;
b)the dispute between these parties had the most profound effect not only on the mother, but on the children, as both children were seeing psychologists and yet were only aged 8 and 12; and
c)given the significant intervention by the Department, their ongoing support of the mother and the emotional risks to the children if the Court did not suspend the 2014 Orders, the Court should make the interim orders sought by her client.
The Department’s submissions
Counsel for the Department essentially adopted the submissions made on behalf of the mother.
Counsel indicated that her instructor’s s.67Z reports to the Court spoke for themselves. On the basis of the Department’s involvement with these children over a considerable period of time, it was submitted that it is not in their best interests to “be forced to see their father”. It should be done, it was said only carefully.
It was noted that each of the children were seeing psychologists. It was further submitted that the children would be at risk in the father’s unsupervised care unless the Court took the step of suspending the 2014 Orders.
The father’s submissions
The father’s submissions were somewhat difficult to follow, but:
a)he repeatedly referred to what he described as “prehistoric events”;
b)he made it clear he would never harm his children and he said repeatedly, “I just want to see them”; and
c)he denied being fixated on his relationship with the mother, and declared clearly and passionately, “I’ve moved on”.
Eventually, when challenged by the Court, he accepted it was possible for someone to experience him as unusually intense and overbearing, (as Dr M had opined). He nevertheless told the Court he disagreed with that view.
He acknowledged that one of the recommendations made in the psychiatric report was that he should seek psychological help and he had no material filed with the Court proving his attempts to do so. However he said “I’ve got that information in the car if you just let me show you”. The father also acknowledged it had been over six months since the psychiatric report was prepared.
The father repeated his claim that he has been a victim of grave injustices at the hands of the mother, the Department, and other government bodies and tribunals in the Victorian state system.
The father asserted that Dr M did not assess that he had any mental health concerns. However, when he was taken to the specific paragraphs in the psychiatric report, he conceded that Dr M had said otherwise.
Legal principles
The relevant principles in relation to making parenting orders were summarised in Goode & Goode [2006] FamCA 1346 (“Goode”) and the High Court of Australia in MRR & GR [2010] 240 CLR 461.
The Full Court in Goode set out the process that the Court should follow in making interim parenting orders:
“[81]In making interim decisions the Court will still often be
faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.[82]In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant
and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);(e)deciding whether the presumption in s 61DA that equal
shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f) if the presumption does apply, deciding whether it is
rebutted because application of it would not be in the child’s best interests;(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[24]
[24] Goode & Goode [2006] FamCA 1346 at [81]-[82].
I have already identified the material that the parties rely on, and their competing positions. As far as possible, within the confines of this very limited interim hearing, I have already set out the agreed or uncontested relevant background facts.
The Full Court of the Family Court in Marvel & Marvel [2010] FamCAFC 101 considered the question as to the making of findings on contested evidence and highlighted the difficulties occasioned to judges at first instance making decisions on interim parenting disputes by the following remarks:
“As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full court decisions (see Goode at para 82(d)). In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:
a.the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and
b. the incidents reported by the mother constituted "low level violence" as the violence identified fulfilled the statutory definition of family violence in the Act.
In SS & AH [2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed at para 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.”[25]
[25] Marvel & Marvel [2010] FamCAFC 101 at [120]-[122].
In SS & AH [2010] FamCAFC 13, the majority of the Full Court said:
“…findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that a finding will be borne out after a full testing of the evidence.”[26]
[26] SS & AH [2010] FamCAFC 13 at [88].
Their Honours continued:
”The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”[27]
[27] SS & AH [2010] FamCAFC 13 at [100].
In Deiter & Deiter [2011] FamCAFC 82, the Full Court considered the situation where the contested facts related to an assessment of risk, which must be undertaken here:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”[28]
[28] Deiter & Deiter [2011] FamCAFC 82 at [61].
In Banks & Banks (2015) FLC 93-637 at [47] to [50], the Full Court noted that a paucity of uncontroversial evidence means that only limited consideration may be given to the factors prescribed by section 60CC of the Family Law Act 1975 (Cth), and further interim disputes should be confined to only those issues which the best interests of the child require be determined prior to a proper determination at trial. Not every section 60CC factor need be discussed in that process.
Putting this matter in the context of Part VII of the Act, the Court has to decide which of the parties’ proposals is likely to be more powerfully in the children’s best interests until further order, giving due consideration to the relevant matters set out in section 60CC, having dealt with section 61DA.
Conclusion
It is agreed that the children have lived with the mother since separation. They last saw the father in August 2018 and only briefly. It appears that the 2014 Orders have not been successful in quelling the dispute between the mother and the father over what is in the children’s best interests.
As Goode makes clear, Part VII of the Act provides that a presumption of equal shared parental responsibility applies when making a parenting order, unless the Court decides that it is not appropriate that the presumption be applied pursuant to section 61DA(3).
This is particularly the case in these interim proceedings due to both the stage of the proceedings, and the disparate positions of the parties as to facts which are necessary to make findings that in the children’s best interests.
Beyond this, the position of the parties as to what this Court should order is set out in their respective minutes. It does not appear to be disputed that, at least on an interim basis, the parties are ad idem that the children should live with the mother until further order.
The present dispute is whether, as the father contends, he should recommence spending time with the children on a substantial and significant basis consistent with the 2014 Orders. Such time includes each alternate weekend, on special occasions, school holidays and so on.
On the other hand, the mother says that time should be reserved pending therapeutic and other professional investigations being undertaken to address what has been clearly identified by both her and the Department as the risk posed to the children by the father’s mental health.
The psychiatric report is essentially determinative of that. Whilst Dr M identified a number of potential mental health issues confronting the father, the father acknowledged that since that report, he has not sought the recommended psychological assistance.
The mother’s position is that the father presents a risk to the children in his unsupervised care, and the Department supports this position.
The difficulty confronting the father is the weight of independent evidence, including from the Department that supports the concerns raised by the mother.
This Court cannot ignore a report provided by the Department. In an interim contest, the Court is required to weigh a probability of risk. The Department’s reports tip the scales more heavily in favour of the orders ought by the mother.
The psychiatric report clearly identifies the father’s shortcomings and raises concerns as to his insight and matters relevant to his parenting capacity and a risk to the children in his unsupervised care.
Further, it was agreed the children have not spent anything by way of meaningful time with the father since at least August 2018.
If the information provided by the mother and the Department is to be taken at face value, both children already have concerning mental health problems and regularly engage with mental health professionals.
Of particular relevance in this matter are the provisions of section 60CC(2)(b), namely “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
None of the parties’ submissions addressed any of the other relevant additional considerations for the purposes of section 60CC(3). In these reasons, I have already addressed matters that are relevant for that purpose, going to parenting capacity, insight, the attitude to parental responsibilities and so on, and so far as is necessary for the purposes of this interim decision.
It is a grave step to make an order that a child spend no time with a parent. However, it is justified where the risk to the children is unacceptable without appropriate safeguards (and I have been unable to identify any today) and/or up to date professional evidence.
In light of the above reasons, it is appropriate that there be interim orders as sought by the mother and the Department.
I am mindful that this is an interim dispute and I will endeavour to case manage this matter as intensively as possible.
However, for the above reasons, I make the orders as set out at the beginning of these reasons.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 7 February 2020
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