ABERCROMBIE & DAMON (No.2)
[2020] FCCA 910
•2 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABERCROMBIE & DAMON (No.2) | [2020] FCCA 910 |
| Catchwords: FAMILY LAW – Parenting – interim dispute – following completion of psychiatric report and child inclusive conference – dispute over spend time with father – interim parenting orders in children’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CC, 61DA, 60CC |
| Cases cited: Abercrombie & Damon (2019) FCCA 543 |
| Applicant: | MS ABERCROMBIE |
| Respondent: | MR DAMON |
| File Number: | DGC 3440 of 2011 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | By Telephone |
| Delivered on: | 2 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Oldham |
| Solicitors for the Applicant: | Cathleen Corridon & Associates |
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Mr Bult |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates Pty Ltd |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Order 5 and 6 of the substantive 27 November 2019 orders remain in full force and effect.
Orders 7 and 8 of the 27 November 2019 Orders are hereby discharged.
The children X born in 2007 (“X”) and Y born in 2011 (“Y”) (collectively “the children”) spend time and communicate with the Father as follows:-
(a)on Saturday 11 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC;
(b)on Saturday 18 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father, with changeover determined by Ms CC.
(c)on Saturday 25 April 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father be text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;
(d)on Saturday 2 May 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement, at Suburb F Park;
(e)on Saturday 9 May 2020, between 10.00am and 2.00pm;
(f)on Saturday 16 May 2020, between 10.00am and 2.00pm;
(g)on Saturday 23 May 2020, between 10.00am and 3.00pm;
(h)on Saturday 30 May 2020, between 10.00am and 3.00pm;
(i)on Saturday 6 June 2020, between 10.00am and 4.00pm;
(j)on Saturday 13 June 2020, between 10.00am and 4.00pm;
(k)on Saturday, 20 June 2020, between 10.00am and 5.00pm;
(l)on Saturday 27 June 2020, between 10.00am and 5.00pm;
(m)on Saturday 4 July 2020, between 10.00am and 6.00pm;
(n)on Saturday 11 July 2020, between 10.00am and 6.00pm;
(o)from 10.00am on Saturday 18 July 2020, to 10.00am on Sunday 19 July 2020;
(p)from 10.00am on Saturday 25 July 2020, to 10.00am on Sunday 26 July 2020;
(q)from 10.00am on Saturday 1 August 2020, to 12.00pm on Sunday 2 August 2020;
(r)from 10.00am on Saturday 8 August 2020, to 12.00pm on Sunday 9 August 2020;
(s)from 10.00am on Saturday 15 August 2020, to 2.00pm on Sunday 16 August 2020;
(t)from 10.00am on Saturday 22 August 2020, to 2.00pm on Sunday 23 August 2020;
(u)from 10.00am on Saturday 29 August 2020, to 4.00pm on Sunday 30 August 2020;
(v)from 10.00am on Saturday 5 September 2020, to 4.00pm on Sunday 6 September 2020;
(w)from 10.00am on Saturday 12 September 2020, to 6.00pm on Sunday 13 September 2020;
(x)from 10.00am on Saturday 19 September 2020, to 6.00pm on Sunday 20 September 2020;
(y)from 3.30 pm (or the conclusion of school) on Friday 25 September 2020, to 6.00pm on Sunday 27 September 2020 and each alternate weekend thereafter, until further Order, or the Final Hearing date detailed in Order 1 herein;
(z)by telephone, skype or Facetime communication, on Wednesday in each week, between 6.00pm and 6.30pm, with the Father to place the call on a mobile telephone number nominated by the Mother, with the Solicitors for the Mother to provide the Father and the Independent Children’s Lawyer with a mobile telephone number within 24 hours for this purpose and the Mother to facilitate the call, uninterrupted; and
(aa)at such other and further times as may be agreed between the Father and Mother, by the exchange of text messages and/or email.
The Father shall be responsible for the costs of the Family Contact Service detailed in Order 3(a) and 3(b) herein, detailed in Notation C herein.
Within 72 hours, the Mother and Father do all things necessary to make application and enrol in the ‘Family Contact Service’, in relation to the two supervised time periods detailed in order 3(a) and (b) herein.
Following the two periods of supervised time detailed in order 3(a) and (b) herein, the Father do all things necessary to obtain a Supervised Time Progress Report from the ‘Family Contact Service’ at his cost and provide a copy to the other parties.
Changeover for all time spent between the children and the Father detailed in order 3(c) – (y) and (aa) detailed above shall take place in the foyer of Suburb F Police Station, DD Street, Suburb F, at the commencement and conclusion of all time spent, unless otherwise agreed between the Mother and Father in writing, by the exchange of text messages and/ or emails.
Within 14 days, the Mother do acts and things necessary to attend upon her general practitioner, to obtain a referral pursuant to a mental health care plan, to a psychologist, for ongoing psychological counselling, aimed at increasing her understanding of the effect of the children of them being involved in an ongoing conflict between their parents and the inevitable involvement of the children in this conflict, at her cost (if any).
Within 14 days, the Father do acts and things necessary to make an appointment to attend upon the child Y’s diabetes specialist/s, to obtain information about her diabetes type one medical condition, including any and all medication required to be taken by her and any further follow-up care required in the appropriate treatment of this medical condition.
Within 14 days Within 14 days, the Mother and Father do all things necessary to enrol in a 'Parenting After Separation' one day intensive Parenting Program at H Centre, Suburb J or H Centre, Suburb EE, at their respective cost, if any and upon commencement of the program follow all of directions of the program, including attending any required appointments and upon completion of this program. Upon completion of this program they shall provide the other parties with a certificate of completion of this program.
The Mother do all things necessary to facilitate the children attending upon their General Practitioner to obtain a referral pursuant to a Mental Health Care Plan, to a child psychologist, for ongoing psychological counselling, aimed at assisting the children with any ongoing anxiety they may be experiencing, at the Mother’s cost, if any.
Within 14 days, the Mother do acts and things necessary to authorise the father to obtain copies of school reports and related school documentation in relation to the attendance of the children at school, normally provided to parents and otherwise authorise the father to attend all normal school and extracurricular activities normally attended by parents and parent teacher interviews and this order shall serve as authority for same.
The Mother and Father are hereby restrained by Injunction from:-
(a)discussing any aspect of this Court Proceeding, or the conflict between the mother and father, within the hearing or presence of the children X and/ or Y, either personally or through the servants or agents;
(b)denigrating each other, within the hearing or presence of the children X and/or Y, either personally or through the servants or agents;
(c)inappropriately disciplining or chastising the children X and/or Y, either personally or through the servants or arrangements.
The Mother is hereby restrained by Injunction from allowing her partner Mr B to come into contact with the Father.
The Mother and Father shall advise each other of any serious injury or serious medical condition suffered or required by the children X and/or Y, whilst the children are in their respective care and this order shall serve as an authority for the Mother and Father to speak to any medical specialist or practitioner treating the children X and/or Y and this order shall serve as authority for same.
Within 14 days, the Mother and Father to all things necessary to download the parenting communication "2 Houses Apart", at their individual cost, if any and thereafter utilise this parenting communication application, to communicate in relation to only issues concerning the care, welfare and development of the children X and/or Y.
THE COURT ORDERS THAT:
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children, X born in 2007 and Y born in 2011 attend upon a Family Consultant AND IT IS REQUESTED that Ms U be appointed for the purposes of the preparation of a Family Report to be given to the Court 7 December 2020,and that:
(a)the Family Report address the matters relevant to ss60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the children.
(b)the parties comply with all reasonable directions of the Family Consultant.
(c)the Family Consultant have leave to inspect the subpoenaed material produced to the Court.
(d)within 7 days of being notified of the family consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) deliver to the family consultant copies of the following documents:
(e)all relevant applications, responses and relevant affidavits filed by or on behalf of his/her client in the within proceedings; AND
(f)any intervention or restraining orders currently in force.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
The matter be adjourned for a mention on 4 September 2020 commencing at 10:00 am at the Federal Circuit Court of Australia at Dandenong; and then
The matter be adjourned to 8 February 2021 at commencing at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Dandenong.
The applicant do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 28 days prior to the trial.
The respondent do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 14 days prior to the trial.
The Independent Children’s Lawyer do file and serve one trial affidavit (only) from each witness that they intend to rely on in the proceedings not later than 7 days prior to the trial.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (sec 60cc factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (sec 61da), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (sec 65daa);
(g)a list of other relevant considerations (including the relevant section number, eg secs 60cg, 61f, 65dab, 65dac, etc); and
(h)the actual orders sought.
No further documents shall be filed in these proceedings, save for as set out above, without leave of the Court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the Mother and the Independent Children’s Lawyer to employ an Advocate to appear at Court today.
Pursuant to Sections 65DA 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)The orders detailed herein are generally in accordance with the recommendations made by Family Consultant Ms P in her 13 March 2020 Child Inclusive Conference Memorandum to Court.
(B)The Independent Children’s Lawyer met with the children X and Y on 11 February 2020 and intends on meeting with him again prior to the Final Hearing date detailed in order 22 herein and the Mother and Father confirm today that they both consent to this further meeting taking place.
(C)The Independent Children’s Lawyer has spoken to Ms CC at the ‘Family Contact Service’ on 27 March 2020, who can facilitate supervised time detailed in order 3(a) and 3(b) herein with the following costs, payable by the Father:-
(a)in intake fee of $250.00;
(b)an hourly fee of $110.00 on a Saturday with a 2 hour minimum; and
(c)a report fee of $190.00 for 2 visits.
(D)The Independent Children’s Lawyer spoke with ‘H Centre, Suburb J' on 27 March 2020, who indicated that they have an intensive one day program available in Suburb EE in May 2020 and in Suburb J in August 2020 and there is an ability for the Mother and Father to attend separately.
(E)At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
(F)Section 121 of the Family Law Act 1975 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.
(G)Paragraph 7(a) and (b) of the ‘Stay at Home Directions’ dated 31 march 2020 issued by the Deputy Chief Health Officer under s.200 of the Public Health and Wellbeing Act 2008 (Vic).
IT IS NOTED that publication of this judgment under the pseudonym Abercrombie & Damon (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3440 of 2011
| MS ABERCROMBIE |
Applicant
And
| MR DAMON |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
These are short form reasons delivered pursuant to s.69ZL of the Family Law Act 1975 (“the Act”).
Before the Court today, 2 April 2020 are proceedings concerning X born in 2007, and Y born in 2011 (“the children”).
The background to these proceedings is set out in a decision of the Court published as Abercrombie & Damon (2019) FCCA 543. The proceedings returned to Court today via telephone link (in the context of the onset of the COVID-19 pandemic in Australia).
The applicant mother is represented by Ms Oldham, the respondent father appears in person, and Mr Bult appears as Independent Children’s Lawyer. The matter was fixed for a telephone hearing today by order made on 19 March 2020 which provided:
“1.All extant applications are listed for an interim defended hearing on 2 April 2020 at 11:00am to be conducted by telephone link and not to exceed 1.5 hours.
2.By 4:00pm on Monday 23 March 2020, the applicant mother (through her solicitor) prepare and provide to the associate of Judge O’Sullivan and the other parties, a minute of interim orders sought on the interim defended hearing date.
3.By 4:00pm on Wednesday 25 March 2020, the respondent father prepare and provide to the associate of Judge O’Sullivan and the other parties, a minute of interim orders sought on the interim defended hearing date.
4.By 4:00pm on Friday 27 March 2020, the Independent Children’s Lawyer prepare and provide to the associate of Judge O’Sullivan and the other parties, a minute of interim orders sought on the interim defended hearing date.
5.Save for the report of Dr R dated 11 February 2020 to be filed by the Independent Children’s Lawyer upon receipt, no further material is to be filed by any party prior to the adjourned date, without an order of the Court.”
Child Inclusive Conference
Those orders were made in the shadow of the child inclusive conference, an order for which had been made earlier in these proceedings. The memorandum, which was dated 13 March 2020, had been released to the parties prior to the last Court date and following the conference held on 11 March 2020. It provides important context for the purposes of today’s hearing, and outlined the following:
“ISSUES IN DISPUTE
1.During interview, Mr Damon proposed that the children X (born in 2007) and Y (born in 2011) live in an equal shared care arrangement. Whether the children live primarily with one parent or in an equal share care arrangement.
2.The time the children spend with the other parent.
3.Whether the spend time with the other parent should be supervised.
RISK FACTORS
Family violence
4.There is a current Interim Intervention Order (IVO) dated 22 October 2018 protecting Ms Abercrombie and the children and naming Mr Damon as the respondent. Mr Damon is contesting this IVO and the matter is returning to Court on 26 March 2020.
5.Ms Abercrombie reported that she has not had any contact with Mr Damon in over one year. She alleged that Mr Damon previously engaged in intimidating behaviour at changeovers by following her to her car and would speak into her face. A further allegation was made that Mr Damon would send her frequent text messages not always about the children, however, was unable to provide details of these claims. Mr Damon denied these allegations.
6.Mr Damon stated that when the Department of Health and Human Services (DHHS) intervened in relation to the children in 2018 he was directed to complete a Men’s Behaviour Change program. He stated that he completed 12 individual sessions with a counsellor as organised by the DHHS in 2018.
Child safety and wellbeing
7.Ms Abercrombie alleged that the children are at risk in the care of their father on the basis of information from the DHHS, however, she was unable to provide details of this information because it was “redacted” and she did not ask them what their concerns were. She reported having concerns for the children’s safety in the care of their father based on a historical allegation that Mr Damon threatened to hurt the children. A further concern was in relation to Mr Damon’s capacity to manage Y’s diabetes. Mr Damon strongly denied any incapacity to manage Y’s diabetes and reported having completed all his diabetes training which included joint sessions with Ms Abercrombie.
8.Mr Damon raised concerns for the children’s emotional and psychological wellbeing on the basis of the inconsistent relationship they have been allowed to share with him and because of the alleged influence of the children by Ms Abercrombie and her husband, Mr B.
9.The Department of Health and Human Services (DHHS) reported that there has been 11 reports made since November 2012. It was assessed by the DHHS that the majority of the reports were malicious in nature and raise concerns assessed in the Federal Court system. In October 2013, a report was made alleging that Mr Damon made threats to harm the children during access. This matter was investigated and concerns were raised in relation to Mr Damon’s mental health as he presented as “erratic” and “fixated.” At this time, the likelihood of physical and emotional harm was substantiated by Child Protection in relation to Mr Damon’s mental health and he was assessed as responsible for harm, however, curiously spend time arrangements continued. The DHHS obtained a Family Preservation Order for one year dated 29 May 2018 in relation to Mr Damon’s alleged refusal to allow Y to obtain an insulin pump to assist with the management of her diabetes. At this time, the DHHS reported that concerns were raised by L Hospital in relation to Mr Damon’s capacity to manage Y’s diabetes. There were three reports made to the DHHS in relation to Mr Damon’s management of Y’s diabetes.
Drugs and alcohol
10.No issues identified.
Mental health
11.Issues in relation to Mr Damon’s mental health were raised by Ms Abercrombie on the basis of information from the DHHS. However, she was unable to provide any specific information as to any mental health issues experienced by Mr Damon and recalled that he took “sleeping tablets” during the relationship. She did not raise any concerns in relation to her own mental health, however, reported being recently diagnosed with breast cancer and undergoing recent rigorous treatment.
12.Mr Damon advised that he is currently undertaking counselling with a Clinical Psychologist, Mr FF. He has undertaken a Psychological assessment in October 2019 for the DHHS, a Psychiatric assessment in November 2019 for the DHHS and a more recent Psychiatric assessment in February 2020 for these current proceedings.
13.Mr Damon speculated that Ms Abercrombie may have experienced Post Natal Depression (PND) following the birth of X. Ms Abercrombie advised that she experienced “baby blues” following the births of her children.
ADULT RELATIONSHIPS
14.Ms Abercrombie presented during interview as evasive and lacking a child focus. There is concern in relation to Ms Abercrombie’s narrative and the unclear and ambiguous information reported. She spoke of fearing for the children’s safety in the care of their father based on information provided by the DHHS, however, was unable to be specific and stated “all the information was redacted so I don’t know what the concerns were.”
15.The issue of management of Y’s diabetes was raised by Ms Abercrombie. She reported that she holds the view that Mr Damon does not understand Y’s needs and is unable to fully meet her needs whilst in his care. An allegation that Mr Damon denied. It was also raised that the children’s behaviour was unusual after returning from their father’s and they became withdrawn, clingy and “they were different.” Ms Abercrombie implied that there were problems with their father because of their presentation and appeared reluctant to accept any alternative explanation for their behaviour that was outside of her narrative.
16.The intervention by the DHHS resulted in spend time between the children and their father stopping. A critical decision by the DHHS was to allow the children to decide themselves, at the young ages of 7 years and 10 years, to spend time with their father. Ms Abercrombie reported during interview that she did not agree with this decision being left to the children, however, did not act to change this decision. During this time, it is possible that Ms Abercrombie engaged in a level of permissiveness disguised as nurturing behaviour and emotionally persuasive communication with the children to reject their father as neither child, during this time, expressed a desire to regularly spend time with him despite spending each alternate weekend with him for four years.
17.The allegations raised in relation to possible influence of the children by Mr B was denied by Ms Abercrombie. She reported that she is unsure why the children provided the information that they did, however, Mr B denied this behaviour to her. Ms Abercrombie’s unwavering support of Mr B and what appeared to be her inability to prioritise the children over her husband is concerning. She presented as lacking insight into the children’s needs, their need for a relationship with their father and lacking support for the relationship between the children and their father.
18.Mr Damon presented during interview as frustrated, critical of Ms Abercrombie and her husband Mr B, however, maintained a child focus and demonstrated insight. He was able to engage in conversations in relation to the children’s needs and he accepted an alternative view and feedback. However, he was at times difficult to communicate with as he required regular redirection back to topic. The file information indicated that there has been difficulties in relation to Mr Damon’s communication style. His communication style did present as impassioned and earnest, however, he presented with the capacity to regulate his emotions. He appeared to have a strong sense of fairness and expressed clearly the injustice he believed he has experienced since the beginning of Court proceedings.
19.It was acknowledged by Mr Damon that he did not consent to Y getting the insulin pump for two main reasons. Firstly, he and Ms Abercrombie were not communicating and it was stressed in their training that communication between parents was crucial and secondly, because he wanted to explore further the implications for Y to have the pump hanging on the side of her body for the rest of her life. These explanations present as reasonable and child focused and the need for the DHHS intervention suggested that the parties were possibly not cooperating or co-parenting which was a major requirement for the procedure.
20.The information provided in the two Psychiatric assessments presented as somewhat consistent in relation to Mr Damon’s presentation and communication style. Whilst the most recent psychiatric assessment has provided a diagnosis for Mr Damon, it has not suggested that this diagnosis of mental health difficulties places the children at risk of harm in his care. His mental health difficulties can be further addressed in the context of his current counselling which can assist to mitigate any concerns of risk to the children by their father.
21.Issues in relation to communication were expressed by both parties. They each reported that the communication occurred via text message and was challenging. Ms Abercrombie alleged she was bombarded with text messages by Mr Damon and he alleged that Ms Abercrombie would not respond to messages.
22.X, in particular, appeared to be highly attuned to his mother’s presentation and was aware of when his mother presented as “stressed” and needing to “stay out of the way.” If Ms Abercrombie is stressed, worried and anxious, it is likely that both children, being so reliant and dependent upon their mother, will also feel her stress, anxiety and worry. The level of influence and alignment between the children and their mother presented as high and possibly the greatest risk to the children’s emotional, behavioural and developmental trajectory. They appeared caught in a loyalty conflict between their parents resulting in emotional distress and confusion.
23.The children have been assessed and questioned regularly for the past 8 years which may have contributed to possible modified memories and appeared to have manifest into a narrative of fear of their father. When they were given the inappropriate adult responsibility of choosing whether to spend time with their father at young and vulnerable ages, it ultimately resulted in their rejection of him. It appeared that the ongoing assessment and questioning of the children may have resulted from the ongoing high level conflict between the parties. The acrimonious relationship between the parents presented as a considerable risk factor to the children’s emotional and psychological wellbeing into the future.
24.Ms Abercrombie advised that the children are at risk in the care of their father due to a historical allegation that he threatened to harm them 7 years earlier which was investigated by the DHHS. For the purposes of this assessment, there has not been any assessed risk to the children in the care of their father. There has been an assessed risk to the children’s emotional and psychological wellbeing in the care of their mother due to what appears to be a high level of alignment and influence of them to reject their father. On this basis, it is recommended that spend time between the children and their father begin without delay and is has been assessed this does not require supervision.
CHILDREN
25.X is a 12 year old child who attends GG School and is in year 7. He reported enjoying school and having many friends.
26.Y is a 9 year old child who attends HH School in Suburb BB and is in year 4. She is progressing well both academically and socially and despite her insulin pump is wanting to play football next term.
27.The narrative of both children was immediately concerning. They each reported negative information about their father without prompting by questions. Each advised that they were frightened that their father would take them to live with him without any explanation as to why this may be a possibility.
28.The level of information in relation to Court proceedings appeared to be high and detailed. The children reported instances of their father’s treatment of them, such as their father throwing wood at X, hitting Y on the head with a vacuum cleaner “10 times” and attending at the mother’s house resulting in an altercation between him and Mr B. It should be noted that when Y reported the incident with the vacuum cleaner, her affect was incongruent with the content of her narrative as she appeared upbeat and somewhat cheerful. The age and stage of development of the children at the time of these alleged events makes them more susceptible to memory error. Child development and child memory functioning would suggest that the level of recollection and detail, at the age of these children at these times, is most unlikely.
29.Both children, in particular X, tended to be highly protective of his mother and Mr B. He was adamant that his mother and Mr B do not tell him what to say, they do not just think about themselves and they always say when they are going to Court. His narrative presented as somewhat reflective of information that may have been shared with him or he has overheard such as his father is “greedy and selfish” and “he could have let this go”, however, was unable to explain these statements. It was reported that their mother and Mr B talk about Mr Damon, however, “they don’t talk mean about him.” Alternatively, it was reported by the children that Mr Damon “says mean stuff about mum” or “sometimes it will be nice, but sarcastic.”
30.The children’s response to not see or spend time with their father presented as disproportionate to the explanations provided by them. Explanations such as “dad made us jaywalk”, “dad made us cross a busy road” or “he always wanted photos and asked us to smile.” Both children reported being fearful of their father, however, presented unable to provide information suggesting their lived experience with him was frightening. The children discussed their “terrible” weekends with their father which included bike rides, going swimming, going to playgrounds or the shops together.
31.It appeared that the children’s narrative of their father is characterised by unjustified and disproportionate responses to spending time with him. There also appeared to be a level of unreasonable fear displayed by the children that they will be taken from their mother. The children reported that they call their father ‘dad’, however, throughout interview both children referred to their father as ‘Mr Damon’ indicating the possibility of coaching of the children’s narrative.
32.Ms Abercrombie was advised that the children saw their father on the day of assessment. Upon Ms Abercrombie entering the playroom to pick up the children, neither child told their mother that they had seen their father only 5 minutes earlier. This behaviour from both children is curious given they had not seen their father since mid-2018, suggesting the possibility they receive negative reactions when talking about their father with their mother.
OBSERVATIONS BETWEEN THE CHILDREN AND THEIR FATHER
33.It was assessed as appropriate for an observation to be conducted between the children and their father. The children were advised that the observation was to occur with each pleading that it not occur. It was observed that the children’s affect when pleading was incongruent with their narrative and Y appeared to follow X’ lead.
34.Mr B entered the childcare room and went to the children with enthusiasm and hugged and kissed them both. Neither of the children responded and they continued to play their video game. However, within 15 seconds when Mr B asked for a hug from Y, she jumped up and sprung into his arms and warmly embraced him before sitting on his lap. X’ response to his father appeared awkward, however, he spoke with his father and remained in the room. Neither child presented as fearful of their father.
35.Mr B was respectful of the children, he asked appropriate questions and engaged the children in conversation about topics of interest for the children. Whilst X remained somewhat restrained, he maintained eye contact and engaged in conversation with his father. Mr B was affectionate with the children, in particular, Y as she presented as somewhat more responsive than X, however, he was not pushing his affections onto X, but rather sensitive to X’ apprehension.
36.There is little doubt that the children have experienced an inconsistent bond with their father. However, given the brief nature of the observation, it appeared that this bond has remained somewhat intact despite the lengthy separation.
ISSUES FOR THE CHILDREN
37.The parties’ capacity to prioritise the children’s needs above their own.
38.The father’s alleged mental health issues.
39.The father’s alleged difficulties managing Y’s diabetes.
40.The effect on the children’s emotional and psychological wellbeing due to being exposed to considerable conflict between their parents and what appeared to be significant adult information by their mother and possibly their step-father.
41.The parties’ narrative to children containing specific adult details and denigrating the other parent.
42.The parenting capacity of both parties.
43.The acrimonious relationship between the parties and children’s exposure to this.
44.The possible influence of children by their mother and the effect on the relationship between children and their father.
45.The mother’s lack of support by the mother for the relationship between the children and their father.
46.Both parties lack of insight into the effect on the children’s emotional and psychological development due to the ongoing, high level parental conflict.
47.The children’s confusion in relation to how they refer to their father and their step-father.
AGREEMENTS REACHED
48.No agreements have been reached between the parties.
FUTURE DIRECTIONS
In light of the above assessment the following recommendations are made:
49.The children live with the mother.
50.The children spend time with the father as follows:
·Each Saturday or Sunday for a period of 2 hours in a public place for two weeks.
·Each Saturday or Sunday for a period of 4 hours for two weeks.
·Each Saturday or Sunday for a period of 8 hours for three weeks.
·Each Saturday from 10am to 10am Sunday for three weeks.
·Each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday.
51.It is recommended that changeovers for the first 10 weeks are supervised through a Children’s Contact Centre to assist with the reintroduction of spend time and a report be provided to the Court should further information be required.
52.The mother participate in no less than 6 sessions of counselling in relation to the effect on the children of influence to reject a parent.
53.The mother provide an affidavit to the Court in her own words and handwriting outlining what she has learnt from her counselling.
54.The father be permitted to make separate appointments with Y’s diabetes specialists in order to obtain information about her medical condition and in order to remain up to date with the level of care required for her diabetes.
55.Both parties complete a Parenting after Separation program through H Centre, Suburb J, and follow all referrals and recommendations of the program.
56.Both parties are authorised to obtain all information that parents are normally entitled to from the children’s school at their own request.
57.Both parties be at liberty to:
·Attend all sport and extracurricular activities the children may attend.
·Attend all school events that parents are usually invited to attend.
·Be at liberty to arrange separate independent parent/teacher interviews.
·Should the parties be at the same event they do not come into contact with each other and no contact between the father and Mr B.
58.Each party, and their agents, be restrained by injunction from:
·Insulting, belittling, abusing or otherwise denigrating the other parent, or a member of their household, in the presence or hearing of the children, and
·Discussing these proceedings or providing documents relating to the proceedings to the children.
59.Each parent shall keep the other parent informed of all serious medical and dental treatment that the child is required to undergo and authorise treating practitioners to communicate with the other parent.
60.That the parties consider communicating through a parenting App such as “My Family Wizard” or “App Close”.
61.A copy of this memorandum to be released to any relevant professionals at the discretion of the ICL.”
Interim position(s)
It was against the background of those recommendations that the parties indicated on 19 March 2020 they required a determination by the Court as to the interim orders that should be made for the children. The orders of 19 March 2020 provided a process by which the parties would exchange their respective proposals.
The mother’s position (at least prior to today) was:
“1.The children live with the Mother.
2.That the parties do all such acts and things to enrol in the Family Contact Service [“The Contact Service”].
3.That upon a place being available at Family Contact Service or V Children’s Contact Service, the children spend time and communicate with the Father for a minimum of two hours per fortnight with such time to be supervised by V Contact Service with the Father to bear all costs.
4.The Father do all such acts and things necessary to provide a contact centre report after every 3 sessions at his expense.
5.After the Father has attended to six consecutive sessions pursuant to Order 3 herein, the Father spend time and communicate with the children as follows:
(i)Each Saturday from 10.00am to 1.00pm for two consecutive weeks;
(ii)Each Saturday from 10.00am to 2.00pm for two consecutive weeks;
(iii)Each Saturday from 10.00am to 3.00pm for two consecutive weeks;
(iv)Each Saturday from 10.00am to 4.00pm for two consecutive weeks;
(v)Each Saturday from 10.00am to 5.00pm for two consecutive weeks;
(vi)Each Saturday from 10.00am to 6.00pm.
6.That the time pursuant to paragraph 5(i) and 6(ii) is to occur in a public place as agreed between the parties in writing.
7.Each party be restrained by injunction from:
(a)Discussing these proceedings with the children or in the presence or hearing of the children, or allowing anyone else to do so;
(b)Denigrating the other parent, their partner, or a member of their family in the presence or hearing of the children or allowing anyone else to do so;
(c)Exposing the children to family violence or allowing any other person to do so; and
(d)Using any form of corporal punishment or physical discipline on the children.”
The father’s position was:
“1.The Mother and Father have shared custody of “the children” named X born in 2007 and named Y born in 2011.
2.The children to live with the mother.
(a)The mother be required to undertake a psychological assessment and this report be made available to the court for next hearing date.
(b)The mother participate in no less than 6 sessions of counseling in relation to the effect on the children of influences on the rejection of a parent.
(c)The mother provide an affidavit to the court in her own words and hand writing outlining what she has learnt from her counseling.
(d)Within 14 days, the mother do all things necessary to facilitate the children attending upon their general practitioner to obtain a referral to a Mental Health Care Plan, to a child psychologist, for ongoing psychological counseling aimed at assisting the children with any ongoing anxiety at the mothers cost if any. These appointments should include a session of the damage done to the father and children's relationship through unfounded statements about the father mental health made by Department of Human Services staff directly made to the children. The mother also be requested to reassure the children that the father is not “sick”.
(e)Within 14 days, the mother do acts and things necessary to authorize the father to obtain copies of school reports and related school documentation in relation to the attendance of the children at school, normally provided to parents and otherwise authorized and advise the father to attend all normal school and extracurricular activities normally attended by parents and teacher interviews and this order shall serve as authority for same.
(f)The mother and father shall advise each other of any serious injury or serious medical condition suffered or required by the children, whilst in each their respective care and this shall serve as an authority for the mother and father to speak to any medical specialist or practitioner treating the children and this order shall serve as authority for same.
3.The children to spend time with the father as follows:
(a)On Saturday 4 April 2020, between 10.00am and 12.00pm
(b)On Saturday 11 April 2020, between 10.00am and 12.00pm
(c)On Saturday 18 April 2020, between 10.00am and 2.00pm
(d)On Saturday 25 April 2020, between 10.00am and 2.00pm
(e)On Saturday 2 May 2020, between 10.00am and 6.00pm
(f)On Saturday 9 May 2020, between 10.00am and 6.00pm
(g)On Saturday 16 May 2020, between 10.00am and 6.00pm
(h)From 10.00am on Saturday 23 May 2020, to 10.00am on Sunday 24 May 2020
(i)From 10.00am on Saturday 30 May 2020, to 10.00am on Sunday 31 May 2020
(j)From 10.00am on Saturday 6 June 2020, to 10.00am on Sunday 7 June 2020
(k)From 6.00pm each “alternate weekend” (26 weekends per year) thereafter the mother will drop off the children and when available the father may alternatively pick up the children from the conclusion of school starting Friday 19 June to the commencement of school on Monday 22 June. (Note: if the access weekend was to include a public holiday the school arrangements will remain the same. The children will be may be collected and returned to school by the father).
(l)By Telephone, Skype or Facetime communication, on Sunday and Wednesday in each week, between 5.00pm and 6.00pm, with the Father to place the call to X’s Phone (number to be provided ) and the Mother to facilitate and encourage the call, and be uninterrupted. The father and children may “at additional times” text each other directly.
4.Changeover will commence at the nearest McDonalds location of each parent home and if this is not available – drop off at home door-to-door were the parent should remain in the car or at school.
5.Diabetes Management:
(a)Within 14 dates, the father do all acts and things necessary to make an appointment to attend at a later date being available by L Hospital to attend the diabetes specialist with Y to attend as was advised by L Hospital, and to obtain information about her medical condition.
(b)As advised by L Hospital, the parents are to attend alternate review sessions held quarterly with Y and the parent attending to inform the non-attending parent of the outcome.
(c)As advised by L Hospital, a communication diary is to be provided by the mother during each father access for the purpose of Y’s diabetes management.
(d)L Hospital is required at all times to provide equal information of the management of Y diabetes to both parents.
(e)All diabetes medications that are required will be provided by the mother during each father access.
(f)Y's diabetes food schedule requires consistent eating times. All previous court ordered times be discharged and all current orders to be with no interrupted “TIMES”. for “special” events such as birthdays etc.
(g)In order to control and monitor Y diabetes the children MUST NOT bring any food, drink or lollies when staying with the father.
(h)The mother and father must provide each other with their current residential address and direct phone number details.
(i)Communication is to by way of text, diary, email and in case of any emergency - by way of telephone.
6.Each party be restrained by injunction from:
(a)Discussing these proceedings with the children or in the presence or hearing of the children, or allowing anyone else to do so;
(b)Denigrating the other parent, their partner, or a member of their family in the presence or hearing of the children or allowing anyone else to do so;
(c)Exposing the children to family violence or allowing any other person to do so; and
(d)Using any form of corporal punishment or physical discipline or chastising on the children.
(e)Mr B MUST NOT interfere, MUST NOT be present at any L Hospital joint medical appointment and must not be present during any changeover. The Mother must enforce this immediately.”
The Independent Children’s Lawyer’s position (at least prior to today) was:
“1.All extant Interim Applications be listed for Final Hearing on________________________, at 10.00am, as a _____matter.
Substantive Orders – by Consent / by the Court
2.Until further Order, Order 5 and 6 of the substantive 27 November 2019 Orders remain in full force and effect.
3.Orders 7 and 8 of the 27 November 2019 Orders are hereby discharged.
4.Until further Order, the children X born in 2007 (“X”) and Y born in 2011 (“Y”) (collectively “the children”) spend time and communicate with the Father as follows:-
(a)On Saturday 11 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father;
(b)On Saturday 18 April 2020, between 10.00am and 12.00pm, as facilitated by the ‘Family Contact Service’ (Ms CC), at the cost of the Father.
(c)On Saturday 25 April 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father be text message and/or email no less than 72 hours prior to this period of time and failing agreement at _____________________________park in_________________________________________;
(d)On Saturday 2 May 2020, between 10.00am and 1.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement at_____________________________park in_________________________________________;
(e) On Saturday 9 May 2020, between 10.00am and 2.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement at_____________________________park in_________________________________________;
(f)On Saturday 16 May 2020, between 10.00am and 2.00pm, at a public place, as agreed between the Mother and Father by text message and/or email no less than 72 hours prior to this period of time and failing agreement at _____________________________park in_________________________________________;
(g)On Saturday 23 May 2020, between 10.00am and 3.00pm;
(h)On Saturday 30 May 2020, between 10.00am and 3.00pm;
(i)On Saturday 6 June 2020, between 10.00am and 4.00pm;
(j)On Saturday 13 June 2020, between 10.00am and 4.00pm;
(k)On Saturday, 20 June 2020, between 10.00am and 5.00pm;
(l)On Saturday 27 June 2020, between 10.00am and 5.00pm;
(m)On Saturday 4 July 2020, between 10.00am and 6.00pm;
(n)On Saturday 11 July 2020, between 10.00am and 6.00pm;
(o)From 10.00am on Saturday 18 July 2020, to 10.00am on Sunday 19 July 2020;
(p)From 10.00am on Saturday 25 July 2020, to 10.00am on Sunday 26 July 2020;
(q)From 10.00am on Saturday 1 August 2020, to 12.00pm on Sunday 2 August 2020;
(r)From 10.00am on Saturday 8 August 2020, to 12.00pm on Sunday 9 August 2020;
(s)From 10.00am on Saturday 15 August 2020, to 2.00pm on Sunday 16 August 2020;
(t)From 10.00am on Saturday 22 August 2020, to 2.00pm on Sunday 23 August 2020;
(u)From 10.00am on Saturday 29 August 2020, to 4.00pm on Sunday 30 August 2020;
(v)From 10.00am on Saturday 5 September 2020, to 4.00pm on Sunday 6 September 2020;
(w)From 10.00am on Saturday 12 September 2020, to 6.00pm on Sunday 13 September 2020;
(x)From 10.00am on Saturday 19 September 2020, to 6.00pm on Sunday 20 September 2020;
(y)From 3.30 pm (or the conclusion of school) on Friday 25 September 2020, to 6.00pm on Sunday 27 September 2020 and each alternate weekend thereafter, until further Order, or the Final Hearing date detailed in Order 1 herein;
(z)By telephone, skpe or Facetime communication, on Wednesday in each week, between 6.30pm and 7.00pm, with the Father to place the call to _____________________or any other telephone number nominated by the Mother and the Mother to facilitate the call, uninterrupted; and
(aa)At such other and further times as may be agreed between the Father and Mother, by the exchange of text messages and/or email.
5.The Father shall be responsible for the costs of the Family Contact Service detailed in Order 4(a) and 4(b) herein, detained in Notation C herein.
6.Within 72 hours, the Mother and Father do all things necessary to make application and enrol in the ‘Family Contact Service’, in relation to the 2 supervised time periods detailed in Order 4 (a) and (b) herein.
7.Following the 2 periods of supervised time detailed in Order 4 (a) and (b) herein, the Father do all things necessary to obtain a Supervised Time Progress Report from the ‘Family Contact Service’ at his cost and provide a copy to the other parties.
8.Changeover for all time spent between the children and the Father detailed in Order 4(a) – (y) and (aa) detailed above shall take place in the foyer of Suburb F Police Station, DD Street, Suburb F, at the commencement and conclusion of all time spent, unless otherwise agreed between the Mother and Father in writing, by the exchange of text messages and/ or emails.
9.Within 14 days, the Mother do acts and things necessary to attend upon her general practitioner, to obtain a referral pursuant to a mental health care plan, to a psychologist, for ongoing psychological counselling, aimed at increasing her understanding of the effect of the children of them being involved in an ongoing conflict between their parents and the inevitable involvement of the children in this conflict, at her cost (if any).
10.Within 14 days, the Father do acts and things necessary to make an appointment to attend upon the child Y’s diabetes specialist/s, to obtain information about her diabetes type one medical condition, including any and all medication required to be taken by her and any further follow-up care required in the appropriate treatment of this medical condition.
11.Within 14 days Within 14 days, the Mother and Father do all things necessary to enrol in a 'Parenting After Separation' one day intensive Parenting Program at H Centre, Suburb J' or 'H Centre, Suburb EE', at their respective cost, if any and upon commencement of the program follow all of directions of the program, including attending any required appointments and upon completion of this program. Upon completion of this program they shall provide the other parties with a certificate of completion of this program.
12.The Mother do all things necessary to facilitate the children attending upon their General Practitioner to obtain a referral pursuant to a Mental Health Care Plan, to a child psychologist, for ongoing psychological counselling, aimed at assisting the children with any ongoing anxiety they may be experiencing, at the Mother’s cost, if any.
13.Within 14 days, the Mother do acts and things necessary to authorise the father to obtain copies of school reports and related school documentation in relation to the attendance of the children at school, normally provided to parents and otherwise authorise the father to attend all normal school and extracurricular activities normally attended by parents and parent teacher interviews and this order shall serve as authority for same.
14.The Mother and Father are hereby restrained by Injunction from:-
(a)Discussing any aspect of this Court Proceeding, or the conflict between the mother and father, within the hearing or presence of the children X and/ or Y, either personally or through the servants or agents;
(b)Denigrating each other, within the hearing or presence of the children X and/or Y, either personally or through the servants or agents;
(c)Inappropriately disciplining or chastising the children X and/or Y, either personally or through the servants or arrangements.
15.The Mother is hereby restrained by Injunction from allowing her partner Mr B to come into contact with the Father.
16.The Mother and Father Shall advise each other of any serious injury or serious medical condition suffered or required by the children X and/or Y, whilst the children are in their respective care and this order shall serve as an authority for the Mother and Father to speak to any medical specialist or practitioner treating the children X and/or Y and this order shall serve as authority for same.
17.Within 14 days, the Mother and Father to all things necessary to download the parenting communication "2 Houses Apart", at their individual cost, if any and thereafter utilise this parenting communication application, to communicate in relation to only issues concerning the care, welfare and development of the children X and/or Y.
Further Procedural Orders – of the Court
18.Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the Mother, the Father and the Independent Children’s Lawyer to employ an Advocate to appear at Court today.
19.Pursuant to Sections 65DA 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS NOTED:
A.The Orders detailed herein are generally in accordance with the recommendations made by Family Consultant Ms P in her 13 March 2020 Child Inclusive Conference Memorandum to Court.
B.he Independent Children’s Lawyer met with the children X and Y on 11 February 2020 and intends on meeting with him again prior to the Final Hearing date detailed in Order 1 herein and the Mother and Father confirm today that they both consent to this further meeting taking place.
C.The Independent Children’s Lawyer has spoken to Ms CC at the ‘Family Contact Service’on 27 May 2020, who can facilitate supervised time detailed in Order 4(a) and 4(b) herein with the following costs, payable by the Father:-
(i)An intake fee of $250.00;
(ii)An hourly fee of $110.00 on a Saturday with a 2 hour minimum; and
(iii)A report fee of $190.00 for 2 visits.
D.The Independent Children’s Lawyer spoke with ‘H Centre, Suburb J' on 27 March 2020, who indicated that they have an intensive one day program available in Suburb EE in May 2020 and in Suburb J in August 2020 and there is an ability for the Mother and Father to attend separately.”
Interim hearing
Today, during the course of the telephone hearing, each of those proposals were marked as exhibits. The minute of orders provided by the mother on 23 March 2020 was marked as A1, the minute of orders provided by the father on 25 March 2020 was marked as R1 and the minute of orders provided by the Independent Children’s Lawyer on 27 March 2020 was marked as ICL1. Each of the parties also had an opportunity to make oral submissions.
Ultimately, Counsel for the mother advised the Court that her client, save for one matter, was ad idem with the position of Independent Children’s Lawyer.
The father opposed certain parts of the orders sought by the Independent Children’s Lawyer. In particular he opposed that the first two periods of time with the children, as set out in the Independent Children Lawyer’s minute, should be facilitated by Ms CC. The father also opposed the Independent Children’s Lawyer’s position insofar as it required a period of time to occur in a public place, and that changeover occur at the Suburb F Police Station unless it was otherwise agreed.
The father said in relation to the requirement for initial supervision that it found no support in the memorandum of the Family Consultant. The father claimed he couldn’t afford it in any event. The father denied that there was any conflict between him and the mother. The father submitted it was inappropriate for changeover to be effected at Suburb F Police Station. The father submitted that not enough attention had been given by, as he described it, the lawyers involved in this matter in contra- distinction to how considered he believed his proposal in R1 was. The father submitted that there were other practical difficulties associated with any requirement to involve Ms CC.
The Independent Children’s Lawyer in submissions outlined the rationale for his proposal. The Independent Children’s Lawyer noted that his proposal was more conservative than the recommendations made by the Family Consultant. The Independent Children’s Lawyer noted that the children had not seen the father for some considerable time. The Independent Children’s Lawyer submitted given that passage of time, (notwithstanding the father’s denial) it was clearly evident that these parties were in high conflict and it was important (from the point of view of the children’s best interests) to engage in a staged reintroduction process. The Independent Children’s Lawyer submitted that he had met with the children who did express some reticence about seeing the father. It was submitted that there was a manifest need to reduce in the children’s own mind any anxiety associated with spending time with the father.
It was submitted that what was clear from the Family Consultant’s memorandum is that it was self-evidently in their best interests that the time spent with the father be normalised as quickly as possible and a staged (and initially supervised) process was more likely to be successful in doing so. It was submitted that given the passage of time since they last spent time with him, given the unexplained hiatus in those arrangements it was necessary to adopt a careful approach.
It was the Independent Children’s Lawyer’s position that regard should also be had to Dr R’s psychiatric report on the father who noted that there was a need for explanation on the father’s part as to what had happened between 2018 and when these proceedings were commenced. Therefore, it was submitted that all these considerations had been taken into account by the Independent Children’s Lawyer.
The position of the Independent Children’s Lawyer had evolved again during the course of today’s hearing. The Independent Children’s Lawyer did not oppose reducing the number of occasions during which the children would spend time with the father in a public place.
The parties agreed that changeover under the 2014 orders was at the Suburb F Police Station. The parties have identified that subject to it still being accessible, the Suburb F Park would be an appropriate public area for spend time at present. The father pointed out repeatedly that he believed his property was an appropriate environment. The father trenchantly maintained that changeover should occur at the front gate of his property. He has disclaimed any intention to approach the mother or any intention to engage with her. However, he then decried the absence of orders for him to be able to communicate with the mother.
The father in submissions left little doubt that he believes that the involvement of lawyers has complicated this matter. The father expressed disquiet about the length of time these proceedings have taken. He made plain that he wanted to resume spending time with the children as soon as possible. He pointed to the observations of the Family Consultant in the s.11F memorandum about the relationship between him and the children and he rejected the need for time to be facilitated.
Consideration
The approach to the making parenting orders is summarised in a decision of the Family Court, published as Eyton v Eyton [2013] FamCA 657 at paragraphs [31] to [38].
The principles outlined above have been authoritatively examined in Goode & Goode[2006] FamCAFC 1346; (2006) FLC 93-286 and MRR v GR(2010) 240 CLR 461. In Goode & Goode [2006] FamCAFC 1346, the Full Court considered the principles applicable to parenting and interim parenting proceedings at paragraph [82].
In Marvel &Marvel [2010] FamCAFC 101, the Full Court of the Family Court 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.
The Full Court of the Family Court also considered the situation where contested facts are relevant to the assessment of risk in the decision of Deiter &Deiter [2011] FamCAFC 82 at paragraph [61]. In Banks & Banks (2015) FLC 93-637 at paragraphs [47] to [50], the Full Court of the Family Court noted that a paucity of uncontroversial evidence means that only limited consideration may be given to the factors prescribed by s.60CC of the Act, 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.
Also important are the principles for the conduct of child related proceedings set out in s.69ZN of the Act which in the context of this dispute are where some interim arrangement must be considered for the children’s best interests.
I have already identified the positions of each of the parties in their proposals, how those positions have evolved during the course of today’s hearing, and the submissions of the parties in relation to those. The agreed or uncontested relevant background facts where they aren’t already set out in the decision published as Abercrombie & Damon (2019) FCCA 3543 include what was in the Family Consultant’s memorandum and Dr R’s psychiatric report. Whilst neither of those reports have been the subject of the cross-examination the Court cannot ignore them.
It is the job of the Court to (where parents cannot) make decisions about interim orders more likely to be in the children’s best interests. In this case there is a paucity of uncontroversial evidence that means only limited consideration may be given to factors prescribed by s.60CC of the Act.
This is a matter where it is appropriate to invoke the discretion in s.61DA(3) of the Act. The Court cannot possibly be satisfied it is appropriate on an interim basis to make an order for equal shared parental responsibility. The residence of the children is not controversial until further order, nor was it controversial that the children should live with one parent and spend time with the other parent until further order. As the position of the parties revealed in these reasons illustrates, the dispute centred on the time and the mechanisms for the children to spend time with the father until further order.
Self-evidently, this therefore means that the parties recognise that there is a benefit to the children having the opportunity to have a meaningful relationship with both of their parents into the future. It’s well accepted that meaningful does not mean optimal. The provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the children may derive from that relationship. The work of the provision is not ended by answering the question “will there be a meaningful relationship under this particular arrangement?” The provision requires an assessment of the relationship, a consideration in the context of how that relationship is to be exercised of the benefits of it, and how those benefits will accrue to the children. This issue is very important in the context of this matter.
There is the need to protect the children from physical, psychological or emotional harm. I will adopt the approach to assessment of risk in an interim dispute as referred to in Ealey v Speelman [2015] FamCAFC 104 at [18].
As is clear from my summary of the father’s position, he does not accept that the children’s time with him should initially be facilitated. The father does not accept that because he believes that, that would send negative messages to the children and that such an arrangement was not recommended in the s.11F memorandum. However, that was not the rationale for the Independent Children’s Lawyer position and for why it was that those first two occasions should be facilitated by Ms CC.
The proposal was put not on the basis of a criticism of the father, but rather as a mechanism by which, for the children’s sake, any spend time arrangements can be normalised as quickly as possible after such a significant hiatus. It was put (using the words of the submissions of the Independent Children’s Lawyer) as an anxiety reducing mechanism, and to ensure that the children realised everything is okay and it is normal to begin seeing their father again.
Also relevant for the purposes of this dispute, is the attitude to the children and the responsibility to parenthood demonstrated by both of these parents. It is important that the father understands that decisions of the family law courts have recognised that it is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of children can appear to reward bad behaviour on the part of one parent[1].
[1] Wang & Dennison (No.2) [2009] FamCA 1251
It is the father’s position that it is the bad behaviour of the mother that has seen this matter come before the Court. Not surprisingly, it is the mother’s position that it’s the bad behaviour of the father. It is the responsibility of the Court in the context of that conflictual position to try and divine until further order, orders that are more likely to be as between the parties’ interim orders in the children’s best interests.
The nature of the relationship of the children with each of their parents, the likely effect of any changes in their circumstances, and whether it would be preferable to make an order least likely to lead to the institution of further proceedings, all tell as relevant factors supporting the proposal of the Independent Children’s Lawyer as it has been amended during the course of today’s hearing.
The father has claimed, but there’s no evidence of this, that he cannot afford the cost of Ms CC. I also understand the father opposes or to use his words, “forbids” the use of a police station for changeover. However, changeover at the Suburb F Police Station has been necessary in the 2014 orders, and at least until further order, unless the parties can otherwise agree, it is more likely to be in the children’s best interests until further order.
Contrary to the claims made by the father in his submissions before the Court today, the minute prepared by the Independent Children’s Lawyer does facilitate his involvement in medical treatment for the children. In particular, the father will have the opportunity to be involved with and get information from all of Y’s treating medical practitioners, including her diabetes specialist.
A family report needs to be prepared for the purposes of a trial. The father has requested that Ms U be requested to prepare a report for the purposes of the trial. No one opposed that and the Court will make that request with the order pursuant to s.62G(2). The matter should return in the duty list in September 2020. However, there should be an end point for this latest iteration of the conflict between the parties. The Court will fix a trial date of 8 February 2021. The purpose of the return date in the duty list in September is to review the spend time arrangements between the children and the father.
Conclusion
For those reasons I will make interim orders in terms of the minute provided to the Court by the Independent Children’s Lawyer as it has been amended during the course of today’s proceedings.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 21 April 2020
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