ALSTEEN & ALSTEEN
[2020] FCCA 3215
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALSTEEN & ALSTEEN | [2020] FCCA 3215 |
| Catchwords: FAMILY LAW – Parenting – interim application. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA. |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MR ALSTEEN |
| Respondent: | MS ALSTEEN |
| File Number: | SYC 6134 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 25 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lioumis |
| Solicitors for the Applicant: | Sydney Law Group Pty Ltd |
| Counsel for the Respondent: | Ms Messner |
| Solicitors for the Respondent: | Farrar Gesini Dunn Sydney |
ORDERS
PENDING FURTHER ORDERS, THE COURT ORDERS THAT:
That orders 2 to 10 inclusive and 17 of the orders made by consent pursuant to order 1 on 25 November 2019 are vacated.
That the father spend time with the children X born in 2010, Y born in 2012 and Z born in 2015 as follows:
(a)For one month from the date of these orders each Saturday from 10.00 AM until 2.00 PM;
(b)During January 2021 each Saturday from 10.00 AM until 4.00 PM;
(c)From the start of February 2021 until the start of term 2 school attendance in 2021 each alternate weekend from 9.00 AM until 5.00 PM on both Saturday and Sunday;
(d)From the first weekend after the start of school attendance in term 2 in 2021 each alternate weekend from 10.00 AM on Saturday until 3.00 PM on Sunday;
(e)From the first weekend after the start of school attendance in term 3 in 2021 each alternate weekend from 10.00 AM on Saturday until 3.00 PM on Sunday;
(f)From the fifth weekend after the start of school attendance in term 3 in 2021 each alternate weekend from 9.00 AM on Saturday until 6.00 PM on Sunday;
(g)On 25 December 2020 from 11.00 AM until 3.00 PM;
(h)From 3.00 PM on 24 December 2021 until 2.00 PM on 25 December 2021;
(i)In the event that the father is not otherwise spending time with the children on Fathers Day, from 9.00 AM until 6.00 PM on Fathers Day;
(j)During the school holidays at the end of Term 3 in 2021 for a three night block at times agreed between the parents and failing agreement from 9.00 AM on the first Tuesday until 6.00 PM on the following Friday;
(k)During the Christmas school holidays commencing in 2021 for three blocks of four nights at times agreed between the parents, to be separated by at least four nights between each occasion;
(l)On the father’s birthday in 2021, from 4.30 PM until 6.30 PM and on in 2022 from 9.00 AM until 6.30 PM;
(m)On each of the children’s birthdays from 3.00 PM until 6.00 PM if the father is not otherwise spending time with the children on that day; and
(n)At such other times as may be agreed between the parents from time to time.
That notwithstanding any other orders, the children are to be in their mother’s care:
(a)On Mothers Day from 9.00 AM until 6.00 PM;
(b)On each of the children’s birthdays from 3.00 PM until 6.00 PM;
(c)On the mother’s birthday from 9.00 AM until 6.30 PM;
(d)From 3.00 PM on 25 December 2020 until 1.00 PM on 26 December 2020 and from 3.00 PM on 25 December 2021 until 6.00PM on 26 December 2021.
That, if they have not already done so, each of the parents forthwith enrol in and complete the next available “Circle of Security” course and the next available “Bringing Up Great Kids” course and each provide proof of completion to the Independent Children’s Lawyer and to the legal representative of the other parent (or to the other parent if that parent is not legally represented) within seven days of completion of each course.
That the father is restrained from:
(a)Yelling at any of the children and from using bad language to or in the presence of any of the children;
(b)Leaving any of the children unsupervised while they are in his care; and
(c)Physically chastising any of the children.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of any of the children or within the hearing of any of the children.
That each of the parents is restrained from allowing any of the children to remain in the presence of, or within any of the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That all changeovers at the start of the father’s time with the children will occur by the father notifying the mother by text message that he is on the footpath at the front of the mother’s place of residence and the children then leaving the mother at the street door of the building containing her place of residence to join the father on the footpath.
That all changeovers at the end of the father’s time with the children will occur by the father notifying the mother by text message that he is on the footpath at the front of the mother’s place of residence and the children then leaving the father on the footpath and joining the mother at the street door of the building containing her place of residence.
That the father is restrained from communicating with the mother at any time and in any manner and by any means that is abusive, belittling, or derogatory.
That the parents communicate with each other about matters relating to the welfare of the children by email and for this purpose each parent is to provide to the other parent through their respective legal representatives an email address that can be so used within five days of these orders.
That leave is granted to the Independent Children’s Lawyer to relist the matter before Judge Morley on the giving of five days notice as an urgent relisting in relation to any orders sought by him in relation to the recommendation in paragraph 74 of the Child Inclusive Conference memorandum to Court dated 25 February 2020 in relation to therapy or other appropriate services for the children or any of them.
IT IS NOTED that publication of this judgment under the pseudonym Alsteen & Alsteen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6134 of 2019
| MR ALSTEEN |
Applicant
And
| MS ALSTEEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property settlement proceedings between the applicant father/husband, Mr Alsteen (‘the father’) and the respondent mother/wife, Ms Alsteen (‘the mother’) in relation to property settlement under section 79 of the Family Law Act 1975 (Cth) (‘the Act’) and in relation to parenting arrangements for their children X born in 2010, Y born in 2012, and Z born in 2015.
On 25 March 2020 I conducted an interim hearing in relation to the parenting aspects of the matter and in particular in relation to the issue of what time the father should spend with the children and what, if any, conditions should be imposed upon time the spent between the father and the children. I apologise for the long delay between that hearing and the delivery of these Reasons and making of orders.
The proceedings
The proceedings were commenced by the father filing his initiating application on 12 September 2019. The mother filed her response on 20 November 2019.
The matter had its first return date before the Court on 25 November 2019 when an order was made for the parties to attend a child inclusive conference with a family consultant on 20 February 2020, and the matter was set down for interim hearing on 25 March 2020.
The parties reached an interim agreement on 25 November 2019 that the children would live with the mother and an ‘interim interim’ agreement that the children would spend time with their father each Saturday from 12:00PM until 2:00PM until 21 December 2019 and thereafter each Saturday from 11:00AM until 2:00PM, supervised by B Contact Centre at the father’s expense.
The parties further consented to orders in the nature of a mutual non-denigration order, an order that by the 30th of each month the father would undergo a carbohydrate deficiency transferrin test at his expense, and orders that the father was to receive relevant school information about the children.
Consent orders were also made in relation to the property settlement aspect of the matter concerning mutual disclosure.
On 25 March 2020, I heard the parties’ competing interim applications on parenting issues. The father was represented by Ms Lioumis of counsel and the mother was represented by Ms Messner of counsel, both of whom made very helpful submissions to the Court on the day. Judgment was reserved.
Materials relied upon
The father relied upon the following materials:
a)His application in a case filed 4 November 2019;
b)Affidavit of the father affirmed filed 6 March 2020 and the exhibits numbered PESD1A through to PESD17 referred to therein;
c)Notice of risk filed 12 September 2019; and
d)Case outline for the father prepared by Ms Lioumis of counsel inclusive of a minute of the interim orders sought by the father.
The following materials were relied upon by the mother:
a)Response to application for final orders filed 20 November 2019 setting out the interim orders sought by the mother in response to the father’s application in a case;
b)Notice of risk filed 20 November 2019;
c)Affidavit of the mother sworn and filed 20 November 2019;
d)Case outline prepared by Ms Messner of counsel; and
e)Exhibit R1 being a medical certificate dated 19 March 2020 from Suburb C Medical Practice and in particular from Dr D in relation to the mother.
I was referred by both parties to the child inclusive conference memorandum to Court dated 25 February 2020 in relation to the interviews conducted by the family consultant with each of the parties separately and with each of the children on 20 February 2020 and I have considered the whole of that document as evidence.
The parties’ competing proposals
The father sought the following orders:
a)That he spend time with the children as follows:
i)For a period of six weeks from 11:00AM until 6:00PM each Sunday;
ii)Thereafter for a further period of six weeks, each week from the end of school on Friday until 6:00PM on Saturday;
iii)Thereafter, each Tuesday from 4:30PM until 7:30PM, each alternate weekend from the end of school on Friday until 6:00PM on Sunday, and by FaceTime each Thursday and Saturday between 6:00PM and 7:00PM;
iv)During school holidays, for a fortnight block on the first occasion and thereafter for the first half of each school holiday period;
v)In even years, from 5:00PM on 24 December until 3:00PM on 25 December, and in odd years from 3:00PM on 25 December until 6:00PM on 26 December;
vi)On Father’s Day from 9:00AM to 6:00PM if they are not otherwise in his care;
vii)On the father’s birthday from 9:00AM until 6:00PM if occurring on a weekend and from 4:30PM until 7:30PM if occurring on a weekday; and
viii)On each of the children’s birthdays from 3:00PM until 6:00PM if they are not otherwise in his care on that day.
b)That the father’s time with the children be suspended:
i)From 9:00AM until 6:00PM on Mother’s Day;
ii)On the mother’s birthday, from 9:00AM until 6:00PM if occurring on a weekend and from 3:00PM until 6:00PM if occurring on a weekday; and
iii)From 3:00PM until 6:00PM on each of the children’s birthdays if they are not otherwise in his care on that day.
c)That for 12 weeks, changeovers at the start and end of the father’s time with the children occur supervised by B Contact Centre or, if that service is not available, at McDonald’s Family Restaurant at Suburb E, and at the expiration of that 12 weeks, all changeovers occur at either the children’s school or, if not applicable, at a McDonald’s Family Restaurant at Suburb E.
d)That mother name three psychologists to provide therapy for the children and the father to choose one nominated psychologist as the therapist for the children to attend, with such therapy to be confidential.
e)That both parties be restrained from taking the children to any other psychologist, therapist, counsellor, social worker or play therapist other than the therapist agreed and appointed under order 4.
f)The father be restrained from consuming alcohol for a period of 12 hours before any of the children come into his care and at all whist any of the children are in his care.
g)That both parties be restrained from discussing the proceedings with or in the presence of the children.
h)That both parties be restrained from denigrating the other parent in the presence or hearing of the children.
i)That the mother enrol in and complete post-separation parenting course.
j)That both parties be entitled to receive all information and attend all meetings applicable for parents in relation to the children’s schooling.
The mother sought the following orders:
a)That the children spend time with their father on all occasions supervised by B Contact Centre at the father’s expense;
i)Each alternate Saturday from 11:00AM until 2:00PM;
ii)On 24 December from 10:00AM until 11:00AM;
iii)On each of the children’s birthdays from 4:00PM until 6:00PM; and
iv)On the father’s birthday from 4:00PM until 6:00PM.
b)That each of the parties be restrained from denigrating the other parent in the presence or hearing of the children.
c)That the father enrol in and complete a post-separation parenting course, such enrolment to be made within 28 days of orders.
At the conclusion of the interim hearing on 25 March 2020, I made an order pursuant to section 68L of the Act appointing an independent children’s lawyer to represent the interests of the X, Y and Z in the proceedings.
The evidence
At the time of the interim hearing the mother was 39 years of age and the father was 48 years of age.
The parties met in 2007 and commenced their cohabitation in 2009. They married in 2011.
The father asserts that the parties separated on a “temporary” basis on 21 May 2018, reconciling in August 2018, and separated on a final basis on 28 January 2019 when the mother moved out of the former matrimonial home in Suburb E with the children.
The mother asserts that the parties separated in September 2017 and recommenced cohabitation in December 2017. She further asserts that on 21 May 2018, she vacated the former matrimonial home with the children and returned to that property in either September or October 2018.
The mother’s evidence is somewhat inconsistent as to the date of final separation of the parties, being any of 16 December 2018 (when she says the parties separated under the one roof), 27 January 2019 (following an argument with the father), or 28 January 2019 (when she moved out of the former matrimonial home with the children). Nothing turns on the precise date of separation.
The father remains residing in the former matrimonial home being a unit in Suburb E and the mother remains residing in the rental unit at Suburb F.
X was nine years of age at hearing (now 10 years of age) and is in year five at Suburb F Primary School. Y was seven years of age at hearing (now eight years of age) and is in year two at Suburb F Primary School. Z was five years of age at the time of the interim hearing, and is still five, and though there is no direct evidence on the point, there is an inference that he is now in kindergarten at Suburb F Primary School.
In 2017 X began seeing a psychologist due to certain behavioural issues she was experiencing at the time, including some self-harming behaviour. Whether or not her behaviour problems were or are tied to her lived experience with her parents prior to their separation is not revealed on the evidence in the interim hearing, but I note the comment of the father in paragraph 55 of his affidavit that X “was dealing with a lot of emotional stress because of our previous break up.” At that time, on the father’s evidence, X had formed a practice of sleeping between her parents “to feel safe and secure” through the last quarter of 2018.
The mother suffers from some chronic health problems inclusive of ankylosing spondylitis and endometriosis, both of which cause her chronic pain. The mother is not in paid employment.
The father is in full-time employment as a Manager.
Both parents give evidence in relation to family violence and they have been involved in three proceedings relating to apprehended violence orders issued for the protection of the mother from the father. The mother asserts that an apprehended violence order was made on 16 May 2014, but there is no evidence of any such order being made, the only evidence being a copy of an application for an order as an annexure to the mother’s affidavit. A provisional, interim or final order may have been made as a result of that application, but such is not in evidence.
A final apprehended violence order was made for the protection of the mother from the father on 9 June 2016 and again on 27 February 2019. The most recent order on 27 February 2019 was an order containing the three statutory orders only, was made on a consent and without admissions basis, and was in force for a period of six months.
There is no dispute between the parties that the mother was the primary carer for the children from the time of their birth up to the date of the interim hearing. The father was in full-time employment throughout the whole period of the parties’ cohabitation. The mother asserts that the father had very little participation in the day-to-day care of the children up to the time of separation, whereas the father deposes that he was “very present” with the family and the children throughout the life of each of the children up until the parents began to live separately and apart on 28 January 2019.
The father pays $546 per week by way of child support as assessed to the mother for the children and maintains the children’s and the mother’s and his own private health cover.
The mother is in receipt of Centrelink benefits and the child support as mentioned, whilst the father indicates that his income for the completed financial year prior to the interim hearing was $153,438 plus superannuation.
Both parties live in rented accommodation.
Family violence
The mother asserts that the father was verbally abusive of her throughout the whole period of cohabitation, including on many occasions in front of the children. In her affidavit she refers to an occasion on 26 May 2018 when the husband repeatedly called her a “bitch” in front of the children “about 20 times” causing the children to yell “Daddy please stop”. The father for his part asserts that in December 2018 the mother
yelled at me and called me derogatory names in front of the children … I yelled back at Ms Alsteen on occasions.
The mother says that recently, on occasions when she has disciplined Z by taking his iPad off him, he has responded her by calling her a “bitch”.
In paragraphs 44 to 49 of the mother’s affidavit she refers to an occasion on 25 January 2019 at the matrimonial home when the husband repeatedly used abusive language in the presence of and to the children. The mother says that when Z and Y began crying and saying “Daddy, Daddy” the father responded by saying:
I’m not your Daddy, don’t call me Daddy, you can all get fucked.
Following the incident, the police were called to the home by the mother and attended, but no action was taken.
In paragraph 62 of his affidavit, the husband admits that on this occasion he
… yelled at them all and said words to the effect ‘Get fucked. This is so wrong to treat me like this’.
On 27 January 2019, the parents travelled to Suburb G Shopping Centre with the children to attend the cinema. An argument developed between the parents during which the father said to the mother:
As much as I’d like to do something to you, I’m not going to.
The mother asserts the father then said that he was having “a breakdown” and began to drive in an “erratic” manner. As a result of the incident a provisional apprehended violence order was issued for the protection of the mother from the father on 28 January 2019, becoming final in the Sydney Downing Centre Local Court on 27 February 2019 for a period of six months, being the statutory orders without additions.
The mother asserts the following occasions of family violence:
a)In 2010 the father hit the mother across the face with a wet cloth nappy;
b)In 2012 the father grabbed the mother by the wrist and pulled her out from behind a door during an argument;
c)In about 2014 the mother was taking an alcoholic drink away from the father and the father scratched her arm in the course of trying to stop her from taking the alcohol;
d)On 6 June 2016 during an argument the father grabbed the mother’s mobile phone from her hand and started pulling it apart and then threw it on the floor part at a time and stamped on it causing damage to the parts. The father refers to the incident in paragraph 51 of his affidavit and admits that he “broke her phone”. The AVO of 9 June 2016 was issued as a result of this incident and was in force for a period of 12 months;
e)On 20 May 2018 the father threw a packet of wet wipes at the mother and hit her on her lower back, striking the place where she has a neurostimulator implant and causing her severe pain. This incident was witnessed by X and Y; and
f)On 16 June 2018 the father drove a motor vehicle forward while the mother had her hand and arm inside an open door of the car causing her body to lunge forward with the car and causing her severe pain that later caused her to collapse. The father then reversed into a parked car and then drove off. The incident was witnessed by all of the children.
The father says in paragraph 80 of his affidavit:
I accept that during our relationship, there were occasions when my behaviour towards Ms Alsteen was not appropriate and that I acted violently towards her. I accept that my behaviour was violent although I did not realise it at the time. I have attended counselling with Mr H which has included skills for anger management and better communication.
In paragraph 54 of his affidavit he indicates that following the parties’ reconciliation in August 2018 he consulted Mr H on a regular basis and stopped drinking alcohol.
Alcohol
The mother asserts that during the marriage the father:
… drank heavily and often consumed more than one bottle of wine per evening. While Mr Alsteen had brief periods of not drinking, he drank for most of our marriage and would return home heavily intoxicated if he went out in the evening.
At the interim hearing, the husband put into evidence the results of carbohydrate deficiency transferrin tests on him on 12 December 2019, 17 January 2020, 31 January 2020, and 28 February 2020, all having a result range within 1.5 and 1.8 and therefore not being indicative of persistent excessive consumption of alcohol around the period tested.
The father’s time with the children following separation
The mother asserts that the parties separated under the one roof on 16 December 2018 and that the family went on a holiday together to the Region J for Christmas 2018.
She asserts that during the holiday on 28 December 2018 she saw Z crawling around on the floor of the cabin where they were holidaying and saw Z bite his father on his leg. She then saw the father lift Z up and pin him against a wall at the father’s eye level and scream at Z within 10 centimetres of his face “How dare you do this to me, you do not do this to me.” The incident was witnessed by X and Y and all three children began crying.
The mother and children moved out of the matrimonial home on 28 January 2019. The father spent time with all three children on 3 February 2019 at the matrimonial home for “a couple of hours”. The father says that during February and March 2019 the children stayed with him every weekend from Friday afternoon until Sunday evening and that he telephoned to the children every other day. The mother says that the father spent time with Y and Z on 16 and 17 February 2019, but that X refused to attend.
The mother says that all three children spent time with the father overnight on 18 and 19 February, from 5.30 pm to 8.00 pm on 19 March, for a few hours on 7 March 2019, from 4.30 pm until 7.40 pm on 11 June and that on Father’s Day 1 September 2019 Z and X spent time with the father but Y refused to attend. The father says that on that Father’s Day occasion when he returned Z and X to the mother Y ran to him and gave him “a big hug and kiss”.
The father says that on 5 April 2019 he was advised by the mother that she would not allow the children to spend anymore overnight occasions with him, that he could only spend time with them during the day time on weekends and that he could no longer call them every day.
During July 2019 the father made several requests to the mother to arrange overnight time with the children and on 3 August 2019 he received an email from the mother:
We seeked [sic] an end to regular weekly visits. The kids continue to be involved in their weekend commitments.
On 4 November 2019 the father enrolled in the K Counsellors online program, which he completed on 19 November 2019. In early 2020 the father undertook a parenting after separation course through L Counsellors.
Since the consent orders made on 25 November 2019 the father’s time with the children has been from 11:00AM until 2:00PM each Saturday supervised by B Contact Centre at a cost of $550 per visit paid by the father. The father put in evidence the reports in relation to each visit from 7 December 2019 (the first visit) until 22 February 2020 (the last visit before the interim hearing) and I note the following extracts from those reports:
a)7 December 2019 – The first visit:
Kids appeared to thoroughly enjoy interaction with Dad. They played with Dad extensively and giggled and smiled throughout the visit.
and
X talked to Dad in great length about what has been going on in her life.
and
Dad was observed to be gentle, calm, easy going and cheerful.
and
He showed interest in the kids’ lives and asked about their school/preschool and other activities.
b)14 December 2019 – X did not attend. When asked by the supervisor why she did not want to attend she replied that she did not know why. Her reason appeared to be more in relation to not being allowed to go to a swimming pool during the visit.
It was clear from the previous visit report that she had enjoyed that visit and had appeared comfortable. Mum initially tried to persuade her but then said she did not have to go on the visit.
c)21 December 2019 – All three children attended.
X went to Dad and hugged him.
and
X chatted to Dad and performed acrobatics, showing him her new teeth spacer.
and
All three children engaged well with Dad, appearing happy and comfortable, enjoying the visit and the play time.
d)24 December 2019 –
Mum arrived and appeared anxious saying it was very hard to convince the children to come.
and
X ran to Dad and gave him a hug, reaching him first.
At the end of the visit X was asked by the supervisor if the visit was fun and
X said yes and kissed and hugged Dad.
and
X asked how many days are left to see him again and Dad replied 3-4 days.
e)4 January 2020 –
X ran up to him and jumped on his lap, quickly followed by the other two.
and
All three children were observed to gravitate towards Dad and often wanted to be close to him.
f)11 January 2020 – Mother and children did not attend for the occasion.
g)25 January 2020 – This visit occurred at the former matrimonial home and on arrival the mother told the supervisor that the children were not sure that they wanted to come to the visit that day. However,
X immediately corrected her Mum and said she did want to come but she wasn’t sure how she would feel about it.
That is, being back at the former matrimonial home. The supervisor noted that the mother was visibly unsettled by being at the former matrimonial home.
The children all ran up to their Dad who was at the front door and he hugged and kissed them individually.
and
X talked to her Dad about her reading, and he praised for reading so well.
[The children] independently said goodbye to their Dad in the front garden – the two younger children first, while X stayed back for extra farewell moments with her Dad.
h)1 February 2020 – Again at the former matrimonial home –
All of the children ran to the front door with X entering first – Dad hugged her and picked her up, and then gave Z and Y a hug as they entered. There were a lot of smiles and excited chatter.
i)8 February 2020 – The supervisors noted an “easy, close relationship between father and all three children”, the same comment being made for the occasion on 13 February 2020.
j)22 February 2020 – Again at the former matrimonial home, at the end of the visit
X hung back once outside the gate and said Goodbye Daddy and smiled and waved.
The parties and each of the children attended a child inclusive conference with family consultant M on 20 February 2020 and the consultant provided a memorandum to the court.
In the conference, the mother proposed that the children live with her and spend not time with their father at all and have no contact or communication with their father at all. The mother alleged that the father had been physically, sexually, emotionally and financially abusive and controlling towards her. The mother referred to the occasions of physical family violence detailed earlier in these reasons, but also referred to other matters of which no evidence was presented on interim hearing:
a)There was no evidence presented by the mother of sexual abuse of her by the father or of the father being financially abusive or controlling;
b)She presented no evidence that the father pressured her to engage in sexual activity;
c)She presented no evidence that the father threw and broke household items (specifically in the plural) in anger except for the one incident relating to her mobile phone;
d)She presented no evidence that the father threatened her or that he threatened to kill himself whilst “yielding” a knife; and
e)She presented no evidence that he tracked her spending, gaslit her, or threw out her belongings.
For his part the father, admitted to the family consultant that he had acted in a “controlling and demanding fashion”. He said that he smashed the mother’s phone out of anger, slammed the door out of anger, pushed past the mother when she has blocked his path, swore at the mother and the children and has had a “rant” whilst his voice was raised in front of the mother and the children.
The mother asserted to the family consultant that the family had been involved with the Department of Communities and Justice (formerly Family and Community Services) and with the N Families organisation, but presented no evidence of same. The father asserted that the family had had no such involvement.
In paragraph 16 of the memorandum the family consultant notes that the mother
is worried that the children feel that [the father] does not give the children much emotional warmth or show interest in things, which are important for them, such as their first day of school or how they went at their dentist appointment.
The supervised contact visit reports by B Contact Centre would seem to indicate to the contrary, but only for those occasions of such supervision.
The father admitted to the family consultant that he had used alcohol to “self-medicate” prior to the parties’ separation and acknowledged that the reasons behind his alcohol consumption were problematic.
Both parents referred to mental health issues affecting other members of the other parent’s family, but such assertions can have no relevance in the absence of any evidence of mental health issues affecting the parents themselves. There was no evidence presented on interim hearing of any mental health issues presenting any element of risk for the children.
The family consultant noted in paragraph 24 and 26 of the memorandum that there is no co-parenting relationship between the parents and that the parents communicate via their legal representatives. She noted that “it is understood that there have been some changeovers with significant parental conflict, which the children have seen.” However, no evidence of conflicts at changeovers was presented on interim hearing.
The mother criticised the father’s parenting capacity to the family consultant in almost all respects, whereas the father praised the mother’s parenting capacity and confirmed that she has a “good, very loving and attached” relationship with the children. He said that she is a “great Mum and cares for the kids”. The mother asserted that the father favours X and that post-separation the children’s relationship with their father has deteriorated. The mother asserted that since supervised time between the children and father had begun the children had begun having tantrums and had become anxious and distressed.
The consultant noted:
Ms Alsteen alleged that the supervision service is not identifying the children’s behaviours in their contact reports/notes. She believes that the children are not receiving enough attention and affection from Mr Alsteen and that is contributing to the escalation in their behaviour when they return from spending time with their father. Ms Alsteen said that the children want Mr Alsteen to ask about their important life events, such as starting school, going to the dentist or about their friends, which she alleged does not occur when the children spend time with him.
However, once again, the mother does not present evidence of these assertions in her evidence on interim hearing.
The family consultant interviewed each of the children –
a)X:
feels bad that the father allegedly treats her siblings in a hurtful manner
I note that this comment by X cannot be linked to anything in the evidence demonstrating uneven treatment of the children by the father.
X indicated that she helps care for her siblings and does chores to help the mother … she helps her siblings bathe, cleans the house and put heat packs in the microwave to help the mother.
X said that she has been scared of Mr Alsteen’s behaviour, such as yelling and swearing, which made her feel unsafe. X said that Mr Alsteen has not treated her mother very well. She indicated that Mr Alsteen locked Y and Z outside and is not respectful towards her siblings, but seems to be nice to her.
I note here that at paragraph 20 of the mother’s affidavit, she deposes that:
Since about September 2017, when I have left the three children in Mr Alsteen’s care for a few hours at a time I would often return home and Z and/or Y would be locked outside of the house or crying. I understand this is because Mr Alsteen was not able to manage them.
The family consultant goes on to say that:
X said that she would like to live with Ms Alsteen, spend one more hour with Mr Alsteen, and have one hour by herself with Mr Alsteen. X said that she found the supervised time to be fine with Mr Alsteen.
b)Y – called her father “mean” but also said that her father seems to be “hiding his meanness from us [the children]”. She said that she would like to see her father once a week on the weekend and that she feels more comfortable by having the visits supervised. She said that she feels unsafe with the father when he is “mean” to her mother. I note that this would not occur when the father is spending time with the children in the absence of the mother.
c)Z – said that his father has been “mean” to this mother (notably using the same expression as Y), but that despite his father being “mean” to his mother he feels safe with his father. He said that he wants to spend more day time only in his father’s care. He said that he feels sad when it is time to “leave Dad’s house”. He said “I get really sad and want to stay” at his father’s house.
In examining the issues in the matter, the family consultant notes that the children could potentially experience some emotional distress from not having a relationship with their father if they were to spend no time or limited time with him. She asserted that it is possible that X is modifying her behaviour around her mother as she may feel that she needs to be loyal to her mother.
Under the future directions heading in the memorandum the family consultant suggested that the father participate in a “taking responsibility” course and provided a telephone number for the purpose. In paragraph 75 the family consultant noted
The children are at a crucial age where they would ideally benefit from spending consistent and frequent time with their non-resident parent to help them form a strong foundation for the relationship to repair and/or continue to grow. However, it is a matter for the Court to determine if it is safe for the children to do so.
She noted that the mother asserted that it is unsafe for the children to spend time with the father and that since they have begun to spend time with him they have experienced some emotional distress. The family consultant suggested that if the children were to begin to spend more time with their father it would important for the time to remain supervised, at least initially, and for the time to incrementally increase.
Finally, I must note that the family consultant said:
It is imperative that the children have access to engage with mental health services who support the children to learn healthy ways to manage their emotions and process any trauma they perceived they might have experienced. It might be of benefit for the children to engage in play therapy or music therapy.
During her submissions on behalf of the father Ms Lioumis of Counsel conceded that changeovers between the parties would need to be supervised so as to avoid the parents coming into contact with each other, but submitted that there was no risk to the children in spending time with their father that necessitated that time being supervised.
Ms Messner of Counsel on behalf of the mother referred to the comment in paragraph 76 of the child inclusive conference memorandum, referred to above, that supervision of the father’s time with the children should continue for the present.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[1]
[1] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[2] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[2] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[3] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[4]
[3] Family Law Act 1975 (Cth) s 65D(1).
[4] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [5]
[5] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[6]
[6] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[7]
[7] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[8] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[9]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[10]
[8] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[9] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[10] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[11]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[12]
[11] Grella & Jamieson [2017] FamCAFC 21.
[12] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[13] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[14] Napier & Hepburn,[15] Johnson & Page,[16] Deiter & Deiter,[17] and Eaby & Speelman.[18]
[13] M & M (1988) FLC 91-973.
[14] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[15] Napier & Hepburn (2006) FLC 93-303.
[16] Johnson & Page (2007) FLC 93-344.
[17] Deiter & Deiter [2011] FamCAFC 82, [61].
[18] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[19] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[20]
[19] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[20] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[21] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[22]
[21] Eaby & Speelman [2015] FamCAFC 104.
[22] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and any need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Subsection (2A) mandates that the court must give greater weight to any need to protect the children over the benefit to the children of having a meaningful relationship with both parents.
The evidence shows that the children have a meaningful, close and loving relationship with their mother, who has been their primary carer for the whole of their lives and virtually their sole carer since 28 January 2019 when the mother and children moved out of the matrimonial home.
Though the mother contends in her affidavit and in her interview with the family consultant during the child inclusive conference that the father “did not make himself available to assist with the children” and was aggressive and violent to the mother in the children’s presence, he also, on the evidence, has a meaningful and close and loving relationship with each of the children, though necessarily not to the same extent as the mother.
The response of each of the children to their father during the supervised time occasions described in the BB Contact Centre reports show clearly that the children do not have physical manifestations of fear of their father, albeit when supervising strangers are present. In their interviews with the family consultant they seemed to be more concerned with their father’s treatment of their mother than expressing any fear for themselves or feeling of being unsafe with him.
The main matter to be examined under the primary considerations in this case is whether or not there is a risk to the children in their father’s care, particularly if that care were to occur on an unsupervised basis.
There has been family violence perpetrated by the father toward the mother. Given the father’s own admissions, the mother’s evidence finding some corroboration in contemporary reports culminating in apprehended domestic violence orders, and the comments by the children, there is evidence enough on the interim basis for a finding of family violence.
The father has not restrained himself from displaying anger and violence in the presence of the children, even to the extent of being verbally abusive to the children and using foul language towards them, which, in perhaps a manifestation of some self-understanding having engaged in an anger management course, he is able to admit in his evidence.
Apart from the mother’s assertions that
Since about September 2017, when I have left the three children in Mr Alsteen’s care for a few hours at a time I would often return home and Z and/or Y would be locked outside the house or crying.
which finds corroboration in the comment by Z in paragraph 62 of the CIC memo:
Z said that he felt unsafe when Mr Alsteen allegedly locked him and Y out of the house ‘in the dark’ so that there would be some ‘quiet’ in the house.
and the mother’s allegation that
Mr Alsteen would grab the children by the arm and carry them to the car
the mother does not give evidence of the father physically abusing or using physical chastisement with the children. When the mother reports in paragraph 63 of her affidavit “Z then speaks and says ‘Daddy breaks us and cuts us’” she goes on to advise that she understood Z to be referring to a metaphorical piece of paper and says “I believe Mr Alsteen has never cut the children.”
The mother gives evidence of the children saying they do not want to see their father and of X and Y wetting the bed “after returning from spending time with him since we separated” and that she is “concerned the children appear distressed returning from Mr Alsteen”.
The mother does not give any specific evidence of specific occasions or describe behaviours amounting to distress in the children, and her comment that the girls have wet the bed after returning from spending time with him since separation, if taken literally, indicates that on every occasion that they have spent time with their father from 28 January 2019 until 20 November 2019 they have wet the bed.
While the hearing took place on 25 March 2020 after the father had spent multiple occasions on each Saturday with the children following the orders made by consent on 25 November 2019, the mother did not present any further evidence for the interim hearing past her affidavit of 20 November 2019 as to any concerning behaviours by the children. Once again, it must be kept in the mind that the occasions occurring after 25 November 2019 were under supervision of B Contact Centre.
The father has given evidence of attendance at counselling with a Mr H to learn skills in anger management and better communication. In November 2019 he completed the K Counsellors online interactive e-therapy program for parents experiencing high-conflict separation, which included strategies to manage and regulate strong emotions, child focussed parenting strategies and understanding personal motivation.
The father spent four months spending each Saturday with the children, with at least one missed, for two hours supervised by B Contact Centre and nothing occurring during that time gave cause for concern.
It is important in this matter to arrange changeovers in such manner that the parents do not come face-to-face, and so avoid the opportunity for conflict between them. That can be achieved either by supervision of changeovers, which unless the supervision is by relatives or friends of the parties, comes at a cost, or by the children leaving their mother and going to their father without the parents approaching each other, such as is achieved by the children coming out the front door of the mother’s residence while the mother remains inside and joining the father outside the boundary of the residence. The children are now 10 years, eight years and five years of age.
Changeovers have been occurring by the mother bringing the children to the place where the father’s time with them is to take place, including at the former matrimonial home, and delivering them to the two supervisors from B Contact Centre who then take the children to the father. From their addresses, as the circumstances are not described in the evidence, it would seem that each of the parents resides in a unit or townhouse block. If the father’s time with the children was ceased to be supervised on the basis that there is no risk to the children in having unsupervised time with him or that if there is it is such risk that can be addressed by appropriate orders, then the additional risk of conflict between the parents in the presence of the children at a changeover can be dealt with by changeover at the street front of the mother’s place of residence without the mother attending at the street front and only occurring when the father has confirmed that he has arrived and he is waiting for the children.
The position taken by the mother in her comments to the family consultant at the child inclusive conference, that the children spend no time whatsoever with their father and have no contact with him, had altered by the time of the interim hearing to a proposal that he have supervised time with them for three hours each fortnight and for shorter times on Christmas eve, the father’s birthday, and each of the children’s birthdays.
On the whole of the evidence, and with the mother’s evidence taken at its height and full consideration of all matters set out in the child inclusive conference memorandum to the Court, I find there is not a risk to the children presented by spending time with their father on either a supervised basis or an unsupervised basis with appropriate orders for risk mitigation such that the children should now be given an increased opportunity to pursue their meaningful relationship with their father.
Two hours each Saturday as has been the case under the interim orders made on 25 November 2019 – though I can anticipate that there has been some significant disruption to that arrangement due to the COVID-19 crisis, though not a matter in evidence – is not sufficient time, with or without supervision, to enable the meaningful relationship between father and children to develop, evolve and deepen. Certainly, two hours per fortnight is inadequate for that purpose.
Section 60CC – the additional considerations
I have mentioned the evidence available going to the children’s views as set out in the child inclusive conference memorandum earlier in these reasons. X has indicated that she would like spend one more hour with her father “and have one hour by herself” with her father and said that she found supervised time with her father “to be fine”.
Y said that she would like to spend time with her father on Thursdays after school. She then stated that she would like to see her father once a week on a weekend and not after school.
Z said that he likes that his father is “really nice” to him and said that he would like to spend more day time only in his father’s care and that he feels sad when it is time to “leave Dad’s house”. He said “I get really sad and want to stay” at his father’s house.
At the interim hearing the mother’s application was that the two hours a fortnight the children spend with their father should be on a Thursday after school. For some reason, that was what was referred to by Y in her interview with the family consultant, though Y then corrected herself and said that she wants to spend time with her father on the weekend and not after school.
Both Y and Z referred to their father as having been “mean” to their mother. These elements raise some suspicion that the children may have been exposed in some way to their mother’s views in the time leading up to the child inclusive conference, though on the basis of what is before the Court on the interim hearing I am not able to make any finding to that effect. However, if that has been the case, either deliberate or inadvertent, then it is certainly very much in the children’s best interest that any such exposure cease as it can only deepen the children’s emotional turmoil consequent upon their unavoidable knowledge of the conflict between their parents.
Whilst X was nine years of age at the time of the interview with the family consultant, Y was seven and Z four (nearly five) and accordingly their views are more useful as indicators of the state of their relationship with their father and of the effect on them of their knowledge of the conflict between their parents than views having any significant weight in the Court’s consideration of what orders are in the children’s best interests.
Both parents have fulfilled their obligation to maintain the children, the father paying child support as assessed for the children and the mother meeting the rest of their financial support needs. Further, the father has been meeting the significant expense of the supervision of his time with the children by B Contact Centre since the interim orders were made on 25 November 2019.
Some deep consideration could have been given to the likely effect on the children of any change in their circumstances by spending increased time with their father if there was evidence before the Court of detail going to the mother’s assertion of the children’s distress and behavioural problems following spending time with their father. However, such evidence is not available and I am not able to infer simply from the mother’s general statements in her affidavit material that an increase in the time the children spend with their father will have a detrimental effect on them in that regard to any significant degree, whether by way of causing, capitulating, or increasing such behaviour.
There is practical difficulty and expense in the children spending time with their father under the current supervision regime in that it involves an expense met by the father in addition to his child support, though noting from the evidence that the father’s income is in the $150,000 per year range. In the event that the court finds that a continuation of supervision is required in the children’s best interest then that expense will be a necessarily element thereof as no substitute supervision without cost is advanced by either party.
The mother asserts that the father lacks capacity to provide for the intellectual, emotional and other needs of the children. She asserts that the father does not show interest in the children’s wider life, though the B Contact Centre supervision reports show that if this was the case in previous times he may have learnt a lesson and is actively showing that interest now. Other concerns relating to the father’s parenting capacity are found in the mother’s evidence, with some corroboration by Z that two of the children when of very tender years were “locked out” in the dark by their father as a means of discipline and his admitted inability to be adequately tolerant and refrain from family violence, abuse of the mother and abuse of the children in the family setting.
It is open to and up to the father to improve his parenting capacity, noting that he has undertaken some courses already and that in line with the recommendations made by the family consultant an order will be made as a result of these reasons for both parents to engage in further courses. Appropriate injunctive orders can be made to prohibit the father from any displays of abuse or shouting while the children are in his care and to restrain him from imposing any physical discipline upon the children or leaving them without adequate supervision (“locking out”).
There is some concern raised in relation to comments by X to the family consultant that she is having to assume some of the parenting role with her younger siblings and carer role with her mother, though X indicating that she helps her mother by putting a heat pack in the microwave is of itself not a matter for concern.
The evidence and all of the comments in this section of these Reasons go to indicate that up to the commencement of the interim orders in November 2019 the father’s attitude to the responsibilities of parenthood was at times inadequate and, in consequence, he has been put on a ‘learning curve’ starting with two hours a week under supervision and moving through time to an as yet undetermined point. Final hearing, if the parties are not able to achieve a settlement between themselves beforehand, is quite some time away.
For the mother’s part, there is some question attached to her attitude to responsibilities of parenthood consequent upon her expression to the family consultant in February 2020 that the children should have absolutely no relationship whatsoever with their father. The effect of this on the children, given the evidence of their interactions with him since that time, would almost certainly be harmful. Hopefully, from the making these sadly overdue interim orders, all of these matters can begin to improve.
As found earlier in these Reasons there has been family violence perpetrated by the father toward the mother and, as they were witness to some such occasions, toward the children. There have been at least two and perhaps three apprehended domestic violence orders in these proceedings. Certainly, there have been two orders and at least another application.
After reviewing all of the evidence in the matter and the considerations, both primary and additional in section 60CC, so far as relevant, I find that it is appropriate that the father’s time with the children increase on a gradual basis toward one overnight time per fortnight in the second school term of 2021. I further find that the father’s time having been supervised, and recognising that such supervised time may have had at least one if not several hiatuses due to the COVID-19 crisis since the start of December 2019, it is in the children’s best interest for supervision of his time to cease, but for all changeovers between the parties to occur by the father undertaking the necessary travel and the parties not meeting face-to-face at changeover.
Section 61DA – parental responsibility
The presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them does not apply in this matter as there are reasonable grounds to believe, and I have made a finding to the effect that, there has been family violence by the father.
Neither party in their orders sought on interim hearing sought an order relating parental responsibility. The mother in her response to application for final orders filed 20 November 2019 does not seek any final order in relation to parental responsibility. The father did not seek an order in relation to parental responsibility in the interim orders sought in the minute of order attached to his counsel’s case outline document, nor did he seek such order in his application in a case filed 5 November 2019. The father did seek an order that the parties have equal shared parental responsibility for the children on both the interim and final basis in his initiating application filed 12 September 2019.
The parents are not able to communicate adequately so as to enable them to properly cooperate, consult and co-parent their children. I find that at the present time it is appropriate to not make an order in relation to parental responsibility, but to leave matters as they are under section 61C of the Family Law Act 1975 pursuant to which each parent has parental responsibility for the children.
As there is and will on this interim basis be no order that the parents have equal shared parental responsibility for the children I do not need to consider the matters under section 65DAA relating to equal time and substantial and significant time, noting that on my above consideration of the matters in section 60CC neither equal time nor substantial and significant time would have been in the best interests of any of the children at this stage.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 27 November 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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