Ahsan and Ahsan and Anor
[2016] FamCA 1009
•25 November 2016
FAMILY COURT OF AUSTRALIA
| AHSAN & AHSAN AND ANOR | [2016] FamCA 1009 |
| FAMILY LAW – CHILDREN – Interim parenting – where parties relationship significantly conflictual – where mother subjected to family violence by the father – where father seeking to align the children against the mother – where children at time of interim hearing living with the father – where mother poses some risk by reason alcohol and drug abuse – where necessary to make orders to protect the mother/children relationship – where oldest child well aligned with the father – where appropriate no order be made as to that child’s time with the mother – where important for both parents to hold parental responsibility – consideration of the children’s best interests. |
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Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode: [2006] FamCA 1346
Keats [2016] FamCAFC 156
Marvel & Marvel (No.2 ) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
| APPLICANT: | Ms Ahsan |
| 1st RESPONDENT: | Mr Ahsan |
| 2nd RESPONDENT: | Mr G Ahsan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
| FILE NUMBER: | PAC | 2493 | of | 2016 |
| DATE DELIVERED: | 25 November 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 5 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ahmad |
| SOLICITOR FOR THE APPLICANT: | Integrated Law Group |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Greenaway |
| SOLICITOR FOR THE 1ST RESPONDENT: | Barber Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: |
| SOLICITOR FOR THE 2ND RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
Orders
Pending further order:
That the mother and father have equal shared parental responsibility for the children B born … 2011, C born … 2008, D born … 2007, E born … 2004 and F born … 2003.
That the children E, D, C and B live with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)during school terms:
(i)from after school/preschool to 7:30 pm each Wednesday commencing on the first Wednesday after the date of these orders;
(ii)each alternate weekend from after school/pre-school Friday to Saturday 6:00 pm commencing on the first weekend after the date of these orders and each other weekend commencing on the second weekend after the date of these orders from 6.00 pm Saturday to before school/preschool Tuesday;
(b)during school holidays for the first half of each of the midyear school holiday periods with the mother commencing from after school/preschool on the last day of the children’s school term and concluding at 6.00 pm on the midpoint Saturday; and
(c)during Christmas school holidays the children shall spend time with the mother on a week about basis with the father with the first week commencing at 9.00 am on the 17 December 2016 and concluding on the following Saturday at 6.00 pm with such weekly holiday periods to conclude no later than 6.00 pm the day before the resumption of the new school/preschool year.
That otherwise the children E, D, C and B live with the father.
That the child F be at liberty to live with the mother in the same terms as provided for the other children according to her wishes.
That the father is restrained from being at or near the said children’s school or preschool at times of changeovers and shall use his best endeavours to ensure that no other member of his family is at or near the said children’s school or preschool at times of changeovers.
That the children have telephone communication with the mother each alternate day they are not living with her between 7:00 pm and 7:30 pm and that for the purposes of such telephone communication the father shall initiate the call to a mobile telephone number nominated by the mother and the father will ensure that the children are available to speak to the mother privately (which includes not being within the hearing or line of sight of the father).
That the children have telephone communication with the father each alternate day they are not living with him during school holiday periods between 7:00 pm and 7:30 pm and that for the purposes of such telephone communication the mother shall initiate the call to a mobile telephone number nominated by the father and the mother will ensure that the children are available to speak to the father privately (which includes not being within the hearing or line of sight of the mother).
That the mother and father are restrained from providing to the children or any of them a mobile phone or other communication device, except as necessary for school work, while the children are living with the other parent.
That the mother be at liberty to attend all functions and events parents usually attend at the children’s school or preschool and at F’s school.
That the mother is restrained from consuming alcohol, illicit drugs or prescription drugs other than as prescribed whilst the children or any of them are in her care.
The father and mother each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer provided always that such request shall not occur more frequently than twice per calendar month with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same and for the purposes of this Order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile telephone number, email address if available and facsimile number if available.
That the mother and father are restrained from using any physical discipline on the children.
That the mother and father are restrained from discussing these proceedings or any issue arising from these proceedings with or in the presence or hearing of the children save and except for the particulars of when the children are to be living with each parent and the mother and father shall use their best endeavours to ensure that third parties do not discuss these proceedings or any issue arising from these proceedings with or in the presence or hearing of the children.
That the mother and father shall ensure notwithstanding with whom the children are living that the children and any other persons including the mother and father attend all appointments with Dr H and obey her reasonable directions for ongoing therapy including engaging with such other health professional(s) as may be recommended by her.
That the ICL be at liberty to speak to Dr H in relation to therapy being undertaken with the mother and father and the children and that the ICL be at liberty to provide to Dr H a copy of the Children’s and Parents Issues Assessment report and a copy of any interim orders made by the Court as a result of this interim hearing together with Reasons for Judgment,
That the mother and father be restrained from assaulting harassing abusing threatening molesting otherwise interfering with the other and otherwise from approaching or coming within 200 metres of the residence of the other parent less pursuant to court order or as otherwise agreed in writing such writing to include SMS or email communication or through legal representatives.
That the mother and father enrol in a “Parenting after Separation” course with Relationships Australia or a similar entity and provide to the ICL the certificate or other proof of completion of such course as soon as practicable.
That all non-school/non-preschool changeovers shall take place at the McDonald’s Family Restaurant at Suburb A or as otherwise agreed in writing by the legal representatives of the parties.
That the mother and father shall ensure that they do not denigrate one another or members of the others family in the presence and hearing of the children or any of them.
That the mother and father use their best endeavours to ensure that third parties do not denigrate the other party or members of the other party’s family in the presence or hearing of the children and if such circumstances arose the present parent shall immediately remove the child or children from the vicinity such that the children are not exposed in any way to such denigration.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2493 of 2016
| Ms Ahsan |
Applicant
And
| Mr Ahsan and Mr G Ahsan |
Respondent
REASONS FOR JUDGMENT
These are interim parenting proceedings in relation to five children: B born in 2011, C born in 2008, D born in 2007, E born in 2004 and F born in 2003.
The mother is aged 37 and the father 42.
The parties commenced cohabitation in 2001 and married later in that year.
The mother was the primary carer of the children. The father worked for his own business for long hours and often six days a week.
Separation occurred in November 2015.
At the time of separation the mother left the parties’ home at Suburb I with the children. She thereafter resided at her father’s home at St Mary’s with the children until she moved on 19 May 2016 to live in an investment property owned by the parties at Suburb A but registered in the name of the mother.
The course of the litigation to date
The applicant mother commenced proceedings by Application filed 1 June 2016. The respondent father filed his Response on 7 June 2016. Since that date the proceedings have been before the Court on a number of occasions.
In the context of a recovery application filed by the mother seeking the return of the children to reside with her and that the father have supervised time, orders were made on 14 June 2016 relevantly in summary as follows:
a)that the children lived with the mother,
b)that the children spend time with the father each alternate weekend from after school Friday until before school Monday,
c)that the mother have sole use and occupation of the home at Suburb A and that the father be responsible for mortgage payments and rates and taxes levied on the property,
d)that the father be restrained from telephoning or in any way contacting the mother except in an emergency in relation to the children and that he be further restrained from approaching or attending at the Suburb A property except in accordance with any order or agreement in writing and that he be further restrained from interfering or attempting to interfere with the mother’s occupation of the Suburb A property.
The proceedings were thereafter adjourned as the parties had child responsive program interviews scheduled for 22 September 2016.
The proceedings were again before the court on 15 July 2016 in circumstances more fully referred to below. On that day it was ordered:
a)that by consent the father is to return the children to the care of the mother at 8:00 pm tonight,
b)that by consent the mother is restrained from drinking alcohol,
c)that the father’s time with the children be suspended until 18 July 2016.
On 18 July 2016 in the context of the father having filed an interim application seeking that the children live with him, orders were relevantly made as follows:
a)that all pending interim applications be adjourned to 5 August 2016 for hearing;
b)that the father file any amended Application in a Case to be relied upon by him and one consolidated affidavit of his evidence in chief and any other affidavits to be relied upon by him by 3 August 2016;
c)that the mother file and serve a Response to the father’s Application in a Case and one consolidated affidavit of evidence in chief and any other affidavits to be relied upon by her by 3 August 2016;
d)that the order for suspension of the father’s time with the children continue until 10:00 am 5 August 2016 save that the children spend time with the father from after school Friday, 22 July 2016 to before school Monday, 25 July 2016.
The interim hearing as to parenting arrangements for the subject children was heard on 5 August 2016 and judgement was reserved to a date to be fixed. It was ordered:
a)that the order for suspension of the father’s time with the children continue pending further order save that the children spend time with the father from after school Friday to before school Monday each alternate weekend and that such weekends commence on Friday, 12 August 2016;
b)that the father have telephone contact with the children each Tuesday and Thursday between 6:30 pm and 7:30 pm;
c)that the father and mother be restrained from otherwise contacting or approaching the children when the children are in the care of the other parent;
d)that the father and mother each undertake urinalysis testing as requested by the ICL.
Subsequently, the father made application to reopen his case as a consequence of certain events that will be referred to below having occurred after judgement was reserved. On 14 October 2016 the interim parenting proceedings were again before the Court and the following orders were relevantly made by consent pending further order:
Parenting
3.That the part-heard interim proceedings as to parenting are adjourned for further hearing to 10.00am on Friday 21 October 2016.
4.That neither party file and serve any further affidavit material in respect of the issues without leave of the Court, save for a short affidavit by the father by no later than 4.00pm on 20 October 2016 as to items of personalty sought by the mother.
5.Without prejudice and by consent pending further orders:
(1)Orders of 5 August 2016 be suspended as to live with and spend time with.
(2)That the children spend time with the mother as follows:
(a)B from 9.00 am to 5.00 pm on Wednesday, 19 October 2016.
(b)The other four children from after school on 19 October 2016 to 5.00 pm.
(3)The father shall deliver [B] to [Suburb I] Primary School at the commencement of Order 2(a) and the other children to McDonald’s, [Suburb A] at the commencement of Order 2(b).
(4)The mother shall return the children to the father at McDonalds’ [Suburb A].
(5)The parents shall each contract [Dr H] to arrange therapy for the children by 5.00 pm on Monday 17 October 2016 by telephoning [Dr H] on … and the parent with whom the children are living or spending time with are to ensure the children attend any scheduled sessions.
6.The mother and father file and serve by no later than 4.00pm on Thursday 20 October 2016 a short outline of case in relation to interim parenting issues with that outline of case to incorporate
(a)A precise Minute of Orders sought;
(b)A list of documents to be read in their case and, in particular, what portion of those documents are to be read;
(c)A brief summary of argument touching upon the matters set out in s 60CC of the Act with reference to the relevant evidence relied upon.
7.The parties are granted leave to issue such further subpoena as they consider relevant to the determination of financial issues before the Court with such subpoena to be returnable by Friday 16 December 2016.
THE COURT NOTES THAT:
8.For purposes of implementing the engagement of the parents and children in therapeutic intervention with [Dr H] the parents shall facilitate the obtaining of a mental health referral for the children for such therapy.
9.There remains an outstanding issue in relation to particular items of personalty as sought by the wife.
The interim hearing was thereafter concluded on 21 October 2016 and judgement reserved to a date to be fixed. It was relevantly further ordered pending further order that:
3.Pending delivery of the judgment the children, [E], [D], [C] and [B] spend time with the mother from after school or preschool to 7.30 pm and each Saturday from 9.00 am to 6.00 pm.
4.For the purposes of the mother’s time with the children on Wednesdays, the father shall deliver the child, [B], to [Suburb I] Primary School where the mother will collect the child, [B], and the other children for the commencement of her period of time.
IT IS NOTED THAT
5.Otherwise, changeovers shall be as provided for in Order 5.3 made on 14 October 2016 at McDonald’s [Suburb A].
Documents relied on
The father relied upon the following documents:
a)His Application in a Case filed 1 September 2016 as amended by his Amended Application in a Case filed 7 October 2016;
b)His affidavit filed 1 September 2016 and his affidavit filed 14 October 2016 as to paragraphs 69 to 88.
The mother relied upon the following documents:
a)Her Response to the father’s Application in a Case filed 15 September 2016;
b)Her affidavits filed 4 August 2016, 15 September 2016 and 21 October 2016.
Context
The mother asserts that she was subject to violence and controlling behaviour at the hands of the father at times during cohabitation with an incident shortly before separation causing the eldest child to intervene to protect the mother.
The father is alleged after separation to have said to the mother’s solicitor: “I’ve fucked up in the past, I’ve made mistakes and made life hard for her but I’ve learnt my lesson”.
The mother’s complaints as to the father are supported by her pre-separation engagement with the school counsellors at Suburb I High School in relation to E and D. The mother’s complaints are further supported by her engagement with her general practitioner (Exh “I”) well before separation when in October 2014 she reported many aspects of the father’s domestic violence to her doctor (“has been hell for the last 5 years”) and her request for him to seek anger management counselling. She was referred under a Mental Health Plan to J Psychology (Exh “N”) for assistance, the referral stating:
Living with husband who is abusive physically and mostly verbal. Husband controlling and calls her names in front of children when he gets angry and frustrated at work. Is getting to the point of unable to cope. Has 5 children who are starting to be disrespectful to her.
The children it appears were beginning to reflect the father’s behaviours.
The mother commenced with her psychologist on 9 December 2015. Her notes reveal a litany of coercive, controlling, abusive and belittling conduct by the father who recognised his problems and refused to get help.
In what must have been a last effort to save the marriage, the father consulted his general practitioner on 28 April 2015 as to his anger issues. The notes reveal “angry, wife will leave pt. 5 children”.
The father was seen by a psychologist in May 2015 following a Mental Health Referral from his general practitioner. The referral included the note: “Anger for many years. Wife will leave pt. Unable to cope with his anger.” The accompanying letter included the note: “needs anger management, he loses temper easily, abusive and hit wife. He refuses to take tablets”. His anger management issues were revealed by him in consultation. In June he reported that he “did not lose control with anger” but by July 2015 things were deteriorating again (Exh “N”).
In July 2015 the mother again saw her general practitioner about the father’s abusiveness and lack of support with the children. (Exh “I”).
The parties separated a few months later. The father post separation had seen the children on weekends sporadically for several months then from early 2016 on alternate weekends and overnight Wednesday nights.
The father reported to his general practitioner on 14 December 2015 that he was still seeing his psychologist. He reported again on 10 May 2016 “seeing psychologist, help with anger, separated.”
It is concerning that the children, especially the older children, are exhibiting the unrestrained traits of the father. In March 2016 the child F was the subject of reports for two assaults on other students.(Exh “G”)
The father in March 2016 messaged the mother “….you are a wonderful person, the best Mum in the world…..each day I am becoming a better man” and then on 26 April 2016 “…if only you knew how sorry I am for everything I have done I hope and pray each day for you to come back to me” .
After the mother moved into the Suburb A property the father’s mood appeared to become darker: he texted the mother:
…not trying to control you I will never be like that with you again you seem to think I’m turning the kids from you…. I’m not your enemy I am sorry for what I’ve done and I’ve improved a lot it doesn’t have to be like this you won’t give me the time of day you just want to hurt me all the time and I get that I’m trying to do the right thing [Ms Ahsan] and you keep treating me like shit you lie to me you can be very rude to me and nasty and spiteful I’m not a stranger I made a lot of ongoing mistakes but not any more you say don’t treat me like this but you do and you don’t realise the kids notice this and they don’t like it I’m sure if you talk to them about it they will be okay.
Thereafter things erupted.
The children had resided with the mother after separation until this time in late April 2016 when the father failed to return them to the mother. He alleged that the mother was an “alcoholic and ice junkie”. The mother attended the youngest child’s preschool for Mother’s Day (early May) and saw the other children briefly at the paternal grandparent’s home later that day. She asserts that the father spat on her in the presence of the children. Subsequently the father’s conduct, asserts the mother, was aggressive, abuse and belittling of her in the presence of the children. The mother made several reports to the Police as to the father’s conduct.
Thereafter the mother asserts that the father has sought to interfere with her occupation of the Suburb A property and had removed from the property furniture and personalty prompting a report by her to the police. The father was interviewed by police and admitted to attending at the home on 22 May 2016 to change the locks (Exh “L”). On the evening of 29 May 2016 the front bedroom window was smashed by two unidentified males caught on security video.
The mother commenced proceedings and on 14 June 2016 orders were made returning the children to the mother’ care. The father did not return the children and further orders were made the following day that procured the return of the children to the mother.
The mother complains as to the father’s conduct post separation asserting that he has disparaged her to the children and others, alleged to the children that she abuses alcohol and drugs, undermined the mother’s authority to the children, threatened her and assaulted her in the presence of the children and breached court orders.
The mother makes various allegations as to the father’s conduct including filming the older children’s refusal to go with the mother at changeover (14 June 2016), engaging the children in his dispute with the mother (14 June 2016), snatching the mother’s mobile phone and damaging it and assaulting her (27 June 2016) that is the subject of a police report (Exh “C” also noting that there had been previously 8 COPS reported incidents in the previous two months relating to the parties and concerns about the children’s unwillingness to be with the mother), surreptitiously through the paternal grandparents providing a mobile phone to the children, encouraging the children to be disrespectful to the mother, and insisting the children speak to him on the phone in private.
The children were seen by a psychologist in late June/July 2016. Their attendance was arranged by the mother. The notes are indicative of the children being well aware of the father’s anger management problems and the criticisms he makes of the mother. (Exh “H”)
The mother further asserts that the father has threatened, intimidated and assaulted her (29 July 2016).
9 July 2016 and thereafter
On the night of 9 July 2016 the mother was at her home with the children in her care. She was drinking with neighbours until about 3:00 am to 4:00 am. She concedes that she was drinking to excess. On awaking the next morning the children were getting into a car and left. The mother called the police. The father called to say he was at the police station with the children. He attended at the police station at about 1:00 pm and made a “children at risk report” He alleged that the mother was drunk. The child F reported that she and two of the other children had seen the mother drunk and vomiting. The children were put back to bed by the neighbour. In the morning the children could not rouse the mother. F left the house and met the father at a shopping complex 30 minutes’ walk away. After attending at the police station arrangements were made to collect the other children with the paternal uncle and aunt. The police report that all children were distressed by the incident and wished to stay with the father. The mother was spoken to and asserted that “Yeah, I had a few drinks, but nothing bad, I was not pissed or anything”. (Exh “C”).
Notwithstanding the above, Orders by consent were made on 15 July 2016 for the return of the children to the mother. The father’s time with the children remained suspended until 18 July 2016.
Upon the resumption of the father’s time with the children he promptly procured a video of the child D, aged 9 being questioned in an aggressive and upsetting circumstance and manner as to her wish not to return home. The video (Exh “O”) depicts a circumstance that must have been disturbing and fearful for the child. The father’s conduct is simply abuse of the child. The father has, it appears, permitted the video to be disseminated.
The mother asserts that the child F on 15 August 2016 began to exhibit behaviour that is aggressive and defiant towards her, pushing and screaming at her and breaking a window at the mother’s home. This behaviour the mother says, reflects the father’s behaviour towards her. The father says that the child admitted breaking the window when seeking to get the mother’s attention with the child further complaining that the mother physically restrained her the previous week over a computer issue.
The mother returned the children to the father with whom they had just spent the weekend. The father then caused the police to attend at the mother’s home after alleging that the mother has used excess physical discipline on the children. The children at the time of interim hearing have all remained in the father’s care.
At the request of the ICL, the mother undertook urinalysis on 16 August 2016. It was positive for cannabis.
The mother expresses concern that the younger children are learning adverse behaviours from the older children F and E. The mother suggested that the children be separated.
The father asserts that the children continue to complain about the mother but proposed through his solicitor on 10 October 2016 that they spend some time with the mother. The children spent time with the mother on the afternoon of 12 October 2016 at McDonald’s. During the visit F who apparently had access to a phone called the father asserting that the mother “had been mean to us”. The mother later messaged the father to pick up the children as arranged. D promptly complained of the mother assaulting her “mum hit me in the eye”. The older children, asserts the father, promptly supported D’s complaint. Upon returning to the father’s home the children continued their complaints about the mother.
There is no doubt that the older children are enmeshed in the conflict between the parents and the ongoing allegations that the parents make against each other. There is significant risk as to the destruction of the older children’s relationship with the mother by the father, as it were, fuelling the fire of the children’s conflict with the mother and thus his conflict with her.
There is significant concern that the father does not reflect on his own significant part in the destruction of the marital relationship. His role is clearly evident in the objective evidence referred to above. The older children especially had a positive view of the mother before separation but thereafter as a consequence of the father’s various interventions and conflict with the mother are now reflecting the father’s own behaviours of aggression, abuse and belittling of the mother.
The 17 October assault
On 12 October 2016 the mother asserts that she was threatened by the father with such threats repeated at the Court on 14 October 2014 when the father is alleged to have said “I want to shred their skin, I want to kill them all especially her father”.
The mother left court and went to her brother’s home for safety. The mother asserts that the father was seen to drive by her brother’s home later that day.
On the evening of 17 October 2016 the mother was seriously assaulted with a baseball bat by an unknown man at her brother’s home. The matter is the subject of police enquiries. The mother asserts that two days later she saw the father on two occasions, on each occasion she observed him swing an imaginary baseball bat and laughing. The children were present.
The mother asserts that the older children continue to be disrespectful and abusive to her. Documents from the children’s school (Exh “J”) reveal that D has a close and strong bond with the children E and C. It may be that she has adopted a protective role for the younger children in the context of the interminable conflict between the parents.
The Children’s and Parents Issues Assessment
The assessment is dated 30 September 2016 and follows interviews on 22 September 2016.
The family consultant identified the issues as follows:
•Allegations that Mr Ahsan was physically violent, emotionally and verbally abusive to Ms Ahsan
•Allegations that Ms Ahsan has been verbally abusive to Mr Ahsan
•Allegations that Mr Ahsan has negatively influenced the children against Ms Ahsan and interfered with their relationship
•Whether or not the children are physically violent and verbally abusive towards Ms Ahsan
•Whether Ms Ahsan has been physically violent towards the children
•Allegations that Ms Ahsan consumes excessive amounts of alcohol.
Each of the children were interviewed.
F presented as an assertive, confident girl. Clearly the relationship between her and the mother is fragile having descended into physical confrontation with F aligned with her father. Yet surprisingly she thought it “alright” to visit the mother although with reservation as to whether it should be at the mother’s Suburb A home. She described the mother before separation as an “awesome mum”. Notwithstanding the father’s own various admissions as to his conduct before separation F appears to minimise what had occurred in the home between her parents.
The child E also presented as confident and assertive. He was also clearly aligned with his father and F, yet acknowledged that the mother before separation was “fine’. He did not know if “he could give her another chance” but would “if (the father) told him to”.
D presented as solemn and thoughtful and was reserved as to the mother clearly reflecting the complaints of the older children. She also would see the mother if the father told her to. The child had no recollection of violence in the home before separation.
C was softly spoken and reserved. She reflected on the mother “getting drunk a lot” although clearly referring to the one incident referred to above. The child struggled to speak, seemingly forgetful as to things she had been told to say. She also was reliant on the father as a key to her spending time with the mother. In observation with the mother and the child B, C was confrontational and non-responsive to the mother, almost as if her responses were rehearsed or orchestrated.
In examining risk factors in interview the family consultant set out the litany of complaints made by the father as to the mother and the mother’s relationship with the children. Many of the complaints were not reflective of the children’s complaints of the mother and appear to be exaggerations and allegations for the purpose of pushing his case.
The mother reflected on the children as reported by the family consultant:
44. [Ms Ahsan] said that she knew that the children would not come to her willingly and she did not know how to manage them. She said that, when they were spending time with her, they were physically violent to her and sometimes she had to sit outside until 11pm at night due to their violence. She recalled that [F] had broken a window and confirmed that she did send them to [Mr Ahsan’s] after this incident (on 15 August 2016). [Ms Ahsan] added that [F] pushed her, tipped her bag out, tried to take her phone and jumped on her, as if trying to make her react.
45. [Ms Ahsan] said that “everything I do is a big deal” to the children and they were constantly questioning her and putting her down. She said that [F] and [E] tell her to “f off and shut up” when she speaks to them on the phone, and she felt like the older children were influencing the younger children. She said that they considered her “the worst Mum in the world for leaving” [Mr Ahsan]…
… 47. [Ms Ahsan] said that she was considering different proposals regarding the children and was asked if she had considered different arrangements for the younger children. She thought that [B] would manage living with her as their relationship had not so far been negatively influenced. [Ms Ahsan] also wondered if the children were permitted to live with [Mr Ahsan], they would be willing to spend some time with her.
The father’s further ongoing complaints about the mother are outlined in the report. Many involved him engaging the children in his conflict with the mother.
In evaluation the family reporter observed:
64. Numerous significant risk issues have been raised in this matter by both parties, including violence and alcohol misuse. It appeared that the children (with the exception of [B]) hold very negative views towards [Ms Ahsan]. It is unknown if these views are due to [Mr Ahsan’s] influence, either in full or in part. It is possible that [Ms Ahsan’s] actions themselves have also been negatively viewed by the children and at least contributed to the current situation.
65. The level of violence that the children are reported to be exhibiting with [Ms Ahsan] is highly concerning and could result in injury to themselves or [Ms Ahsan]. In addition, the younger children are being exposed to violence from the older children. It is unknown if [Ms Ahsan] is acting protectively of herself regarding the children’s violence or if she is being violent towards them and they are protecting themselves.
66. [Mr Ahsan] claimed that the current arrangements were by agreement. It appeared that [Ms Ahsan] did send the children to [Mr Ahsan] in August 2016, but it did not appear that she agreed not to spend time with any of them since.
67. The Court may need to consider different arrangements for [B], in particular, separate from his siblings, to either spend time with or live with [Ms Ahsan].
Subsequent to the interviews with the family consultant orders were later put in place for the four younger children to spend time with the mother pending judgment.
The proposals before the Court
The applicant mother proposed orders (Exh “D”) that in summary provided for:
a)the children D, C and B to live with the mother and that these children spend time with the father each alternate week on Saturday from 12:00 noon to 6:00 pm;
b)the children F and E to live with the father and that these children spend time with the mother each other alternate week on Saturday from 12:00 noon to 6:00 pm;
c)that changeovers be effected at the McDonald’s Family Restaurant at Suburb A;
d)that the mother be able to communicate with the older children as agreed between the mother and father will otherwise once per day between the hours of 4:00 pm and 5:00 pm;
e)that the mother have sole responsibility for decisions about the education health and medical treatment for the younger children including but not limited to dental general medical psychologists and any other mental health treatment;
f)that the father ensure that the older children are enrolled, attend and participate in any psychological treatment program as recommended by all consented to by the ICL.
In the alternative the mother sought orders that provided for all the children to live with her and that the father’s time with the children be suspended for a period of three months and that thereafter the father’s time with the children be on a supervised basis each second weekend on Sunday from 10:00 am to 2:00 pm.
Otherwise, the mother sought that the father be restrained from being within 200 metres of the mother other than for the purposes of facilitating changeovers in accordance with these orders and that the father be further restrained from filming and/or disseminating videos concerning the children’s views about the mother to anyone.
During the course of final submissions the mother provided to the Court a further amended minutes of order sought in the further alternative that provided as follows:
a)that the children D and C live with the mother and father on a week about basis commencing on the Monday of each week;
b)that’s the child B lived with the mother and spend time with the father on Saturday from 10:00 am to 6.00 pm in the week that D and C are living with him;
c)that the children F and E be permitted to live with the mother as proposed in a) above and otherwise spend time with the mother from 10:00 am to 6:00 pm in the week that D and C are living with her;
d)that the mother be restrained from consuming alcohol or illegal drugs whilst the children or any of them are in her care;
e)that the mother and father be restrained from using any physical discipline on the children;
f)that the mother be permitted telephone contact with the children at all times with the father to facilitate such communication by providing a mobile telephone number available in his exclusive control;
g)that the mother and father be restrained from:
i)discussing these proceedings with the children or showing the children any documents pertaining to the proceedings;
ii)making critical or derogatory remarks about the other parent or members of the other parent’s family in the presence of or in the hearing of any of the children;
iii)permitting any other person to make critical or derogatory remarks about the other parent or the other parent’s family in the presence within the hearing of any of the children;
iv)making critical or derogatory remarks to one another in the presence within the hearing of any of the children;
v)involving the children in arrangements or discussions for any reason including in relation to the alteration of time for contact between the parties.
The father sought orders as follows:
a)that the mother and father have equal shared parental responsibility for the children;
b)that the children live with the father;
c)that the children spend time with the mother as agreed between the mother and father in writing and otherwise each alternate Saturday between 9:00 am and 5:00 pm in one week and each alternate Sunday between 9:00 am and 5:00 pm in the following week;
d)that the mother be restrained from consuming alcohol for a period of 24 hours prior to spending time with the children and during the time she spends with the children;
e)the mother be restrained from using any illicit drug;
f)that the mother undertake carbohydrate deficient transferrin (CDT) test under a chain of custody condition within 24 hours of being requested by the Independent Children’s Lawyer;
g)that changeovers be at the McDonald’s Family Restaurant at Suburb A;
h)that the mother shall communicate with the children every Tuesday and Thursday between 6:30 pm and 7:30 pm by phone;
i)that the father make available a phone for the children and keep such phone on and charged at all times for the purpose of facilitating the mother’s telephone contact with the children;
j)that the children spend the first half of each of the midyear school holiday periods with the mother and during Christmas school holidays the children shall spend time with the mother in the first half in years ending with an odd number and the first half with the father in years ending with an even number.
The ICL provided to the Court a minute of proposed orders sought on behalf of the children. Those orders in summary provided:
a)that the children E, D, C and B live with the mother:
i)during school term from after school/preschool to 7:30 pm each Wednesday;
ii)during school holidays from 9:00 am to 7:30 pm each Wednesday;
iii)each alternate Saturday from 9:00 am to 7:30 pm and each other weekend from after school/preschool Friday to before school/preschool Monday during school term and from 9:00 am Friday to 7:30 pm Monday in school holidays;
iv)that the children have telephone communication with the mother each alternate day they are not living with her between 7:00 pm and 7:30 pm and that for the purposes of such telephone communication the father initiate the call to a mobile telephone number nominated by the mother and the father will ensure that the children are available to speak to the mother privately (which includes not being within the hearing or line of sight of the father);
b)that otherwise the children E, D, C and B live with the father;
c)that the child F be at liberty to live with the mother in the same terms as provided for the other children;
d)that the mother be at liberty to attend all functions and events parents usually attend at the children’s school or preschool and at F’s school;
e)that the mother be restrained from consuming alcohol, illicit drugs or prescription drugs other than as prescribed whilst the children or any of them are in her care;
f)that the parties are restrained from using any physical discipline on the children;
g)that the party shall ensure that they do not discuss these proceedings in the presence or hearing of the children save and except for the particulars of when they are to be living with each parent;
h)that the mother and father shall ensure notwithstanding with whom the children are living that the children and any other persons including the mother and father attend all appointments with Dr H;
i)that the ICL be at liberty to speak to Dr H in relation to therapy being undertaken with the parents and the children and that that the ICL be at liberty to provide to Dr H a copy of the Children’s and Parents Issues Assessment report and a copy of any interim orders made by the Court as a result of this interim hearing;
j)that the mother and father be restrained from assaulting, harassing, abusing, threatening, molesting or otherwise interfering with the other and otherwise from approaching or coming within 500 metres of the residence of the other parent less pursuant to court order or as otherwise agreed in writing by their legal representatives;
k)that the mother and father enrol in a “parenting after separation course” with Relationships Australia or a similar entity and provide to the ICL the certificate or other proof of completion of such course;
l)that all non-school/non-preschool changeovers shall take place at the McDonald’s Family Restaurant at Suburb A or as otherwise agreed in writing by the legal representatives of the parties;
m)that the mother and father use their best endeavours to ensure that third parties do not denigrate the other party or members of the other party’s family in the presence or hearing of the children and if such circumstance arose the present parent shall immediately remove the child or children from the vicinity such that the children are not exposed in any way to such denigration;
n)that the mother and father shall ensure that they do not denigrate one another or members of the others family in the presence and hearing of the children or any of them;
o)that the ICL have liberty to restore on short notice.
Interim parenting
In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:
120. 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).
121.…n SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [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.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“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.”
In Deiter [2011] FamCAFC 82 the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… 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.
In Eaby & Speelman (2015) FLC 93-654 the Full Court on the same issue said:
18. …that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Keats [2016] FamCAFC 156 the Full Court again noted:
[9] …the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.
THE LAW:
The relevant principles in relation to parenting and interim proceedings are well settled in Goode and Goode: [2006] FamCA 1346. The High Court in MRR v. GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 61DAA(6)].
Best Interests:
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The nature of the present relationships between the children and their parents is detailed above. There is a strong inference that, notwithstanding some aspects of the mother’s conduct (her drunken incident and adverse urinalysis result on one occasion), the father is intentionally engaging the children in the parental conflict and undermining the children’s relationships with the children as a consequence of his anger towards the mother by reason of the end of the marriage.
There are significant risks that unless orders are in place that ensure the mother’s relationships with particularly the younger children that the father’s ongoing conduct will see an end to such relationships in any meaningful way.
The children’s relationship with the father is enmeshed to a degree that the children now look to the father for permission or acknowledgement that they may have a relationship with the mother. This stands in stark contrast to the older children’s view of the mother’s pre-separation.
The mother’s relationship with the younger children should be restored as soon as practicable. Indeed, the Family Consultant opines that the youngest child B should perhaps live with the mother. Such a course would involve separating the children. The circumstances are such that a consideration of this factor is indicative of all of the younger children also residing with her subject to protective constraints for a reasonable period each fortnight. Indeed, the father seeks orders that they reside with the mother for extended periods in school holidays.
There is significant risk that if one or the other parents holds parental responsibility that such will be used to further fuel the conflict and alignment of the children.
Section 60CC(2)(b) – need to protect.
This factor looms large. Not so much as to the physical risk to the children in respect to which there is disputed evidence but as to the insidious psychological risk to the children of the father’s conduct in relation to the mother and his enmeshment of the children in such conduct. The consequences of such conduct are the present alignment of the two older children with the father and the prospective alienation of the younger children from the mother.
Absent the insidious influence of the father it is to be expected that the mother’s relationship with the younger children will improve quickly. The eldest child will need to reflect on her relationship with the mother but she may represent an unsettling influence on the younger children should she for any substantial period form part of the mother’s household as she reflects so strongly the views and behaviours of the father. Should she spend time with the mother according to her wishes she will need to heed the mother’s authority in the mother’s home.
It is necessary to provide protective orders as to alcohol in the mother’s home and by reason of the mother’s conduct with drugs and the father’s admitted history the ICL should have urinalysis testing ability as to both parents.
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
The views of the four older children regrettably reflect the conflict between the parents and the father’s enmeshment of the children in his anger at the mother. The children’s perception of the mother has been clouded by the events post separation that reflect poorly on both parents. The weight to be ascribed to any expressed views should be subject to the overriding consideration of the children’s best interests.
The nature of the children’s present relationships with the parents is detailed above. Such contrasts to the older children’s perceptions of the mother pre separation in the context of her undisputed role as primary caregiver and the father’s own concessions as to her parenting role and his limited engagement by reason of his work commitments. The children have been in and out of her full-time care for some months since late April 2016.
The children are at risk of being enmeshed in their relationship with the father to the detriment of their relationship with the mother. Concerningly, the older children are now reflecting the poor behavioural traits of the father in the relationship with the mother, particularly F and to a lesser extent E and D.
The current engagement of the parents with the children in terms of decision making in relation to time with the children had been overshadowed by the persistent conflict and change in the children’s arrangements over the last few months either by court order or unilaterally imposed by the father.
The mother’s proposals are set out above and would restore the four younger children to some meaningful time with her where the father seeks orders for day time on weekends during school term but extended overnight periods in school holidays. His proposal thus seems to abandon any argument as to risk to the children in the mother’s care. The effect of a change as sought by the mother would be to restore the children’s relationship with the mother who was their primary carer until late April this year. It would remove to some extent the adverse influence of the father that it appears has overwhelmed the children since the mother moved into the Suburb A property.
There is no practical difficulty or expenses in the children spending time with both parents save for the need for changeovers to be at a neutral location and the parents to remain away from each other.
The mother it appears prior to separation in the view of the father was able to provide for the needs of the children. He held a high view of her parenting as did the older children.
The mother asserts that has been subjected to a tirade of behaviour and abuse from the father since late April 2016. His own admissions and the mother’s complaints to others about his conduct make it most probable that his conduct was as alleged by the mother and is a result of his anger with the mother that erupted in late April 2016. The father’s conduct and that of the children that reflect his abusive and aggressive conduct has created issues for the mother leading to an alcohol related incident and conflict with particularly F.
The father’s enmeshment of the children in his crusade against the mother reflects poorly on his parental capacity to properly meet the children’s needs as it does on any assessment of his attitude to parental responsibility and the children.
There has been “family violence”, that is, conduct that is violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The father admits that he has perpetrated such violence against the mother. She both before and after separation sought help in relation to the father’s conduct. He did so belatedly after separation but did not continue.
The mother has been in conflict with the children, particularly F. Such conflict has resulted in physical confrontation in circumstances yet to be established on contested evidence.
There is no relevant family violence order, although it appears there are pending proceedings against the father.
These are interim proceedings.
The ICL
The ICL contended that concerns were held in relation to the mother’s alcohol abuse and positive drug result. Further concerns were raised as to the older children’s abuse of and violence towards the mother. There is, it was submitted, a clear need for prescriptive telephone contact orders. The perception held by the eldest F that the children were the mother’s “last priority” echoes the concerns of the other children save for the youngest.
The ICL identified risk factors as being the power in the father’s hands as to whether the children see the mother or not and the clear need for the children to seek the father’s emotional permission to see the mother. The ICL contended that the risk of violence in the mother’s household would be high and concerns were held as to the mother being able to act protectively for all the children in the light of F’s behaviour towards her. The recent serious assault on the mother was of great concern to the ICL.
Ultimately, the ICL had reservations as to splitting the children but there was a balancing exercise as to risk and prioritising the children’s relationship with the mother.
Following the completion of submissions the matter was stood down to allow the ICL to provide to the Court a minute of the ICL’s proposed orders. That document comprises Exh “F” with the ICL adding “and otherwise the children live with the father”. The ICL repeated a concern as to the recent serious assault on the mother and the need to preserve the mother/child relationships pending a single expert report.
It was contended on behalf of the father that the ICL’s minute provided little recreational time for the children with the father and thus it was more appropriate that there be alternate weekends with the mother from after school Friday to before school Monday and an overnight period each week. The father continued to propose half school holidays with the mother as block periods. The father’s contention did not reflect concern for the children in the mother’s household.
Parental responsibility s 61DA
There are strong indicia that the presumption should not apply by reason of family violence perpetrated by the father. As set out above there are more than reasonable grounds to believe that the father has engaged in family violence perpetrated on the mother over a period of years. It continues.
However, the alignment of the children with the father is of concern and if the children are to be primarily living with him or the mother then the assignment to one or the other of sole parental responsibility is a recipe for ongoing conflict and dispute. There will be an order for equal shared parental responsibility pending further order.
As the presumption does apply it is necessary to consider equal or substantial and significant time: s 65DAA. The best interest consideration and the discussion above are clearly indicative of the parents being totally incapable of a shared care arrangement. The issues of the mother’s relationship with the children are indicative of there being something akin to “substantial and significant time” with her and orders will be fashioned accordingly.
Otherwise, specific issues orders to be made by the Court fall to be determined by reason of the best interest considerations set out in s 60CC.
Overall, a consideration of the best interest matters set out above clearly indicates orders that endeavour to maintain the children’s relationships with the mother.
Both parties and the children are to engage with Dr H in therapeutic intervention. It is appropriate that they be required to comply with Dr H’s reasonable directions in the context of her therapy or her directions for the parties or either of them to attend upon any other health practitioner that she may recommend.
Any non-compliance or non-engagement by the father may well see the matter restored to the list by the ICL and consideration given to the children living with the mother and the father’s time with the children being curtailed or suspended for a period.
Otherwise, it is appropriate in the best interests of the children for various protective and specific issues orders to be made as contended for by both parties and the ICL to moderate the behaviour of both parents and restrain the mother from adverse behaviour.
Orders will be made accordingly until further order.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2016.
Associate:
Date: 24 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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