ARDEMA & WAKELING

[2020] FCCA 1274

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARDEMA & WAKELING [2020] FCCA 1274

Catchwords:
FAMILY LAW – Interim parenting – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA,60CC,61DA

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant: MR ARDEMA

Respondent: MS WAKELING

File Number: PAC 1742 of 2019

Judgment of: Judge Newbrun

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Parramatta

Delivered on: 25 May 2020

REPRESENTATION

Solicitors for the Applicant: Mr Naidovski - Pannu Lawyers

Solicitors for the Respondent:	Mr Gad - Ln Legal
Independent Children’s Lawyer	Ms Rodriguez - Sydney West Family Lawyers

ORDERS PENDING FURTHER ORDER

1. The mother’s proposed interim orders set out in her case outline filed 15 May 2020, together with her Application in a Case filed 13 February 2020, are dismissed.

2. Without admissions, the father be restrained from swearing or verbally abusing any person in the presence of the children, and be restrained from swearing or verbally abusing the children.

3. The father shall forthwith continue to spend time with the children pursuant to the court’s interim parenting orders of 5 June 2019.

4. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2021.

5. The Family Report shall deal with the following matters:

   (a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.

   (b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);

   (c)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 the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.

   (e)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 report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

6. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.

7. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

8. The proceedings are adjourned to a date in March 2021, following release of the family report, with the Court to advise the parties of that date in due course.

IT IS NOTED that publication of this judgment under the pseudonym Ardema & Wakeling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1742 of 2019

MR ARDEMA

Applicant

And

MS WAKELING

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This interim hearing relates to the twin children X and Y born in 2010.  They are aged 10 years.

2. On the 5 June 2019, by consent, interim parenting orders are made providing, inter alia, the parents have equal shared parental responsibility for the children; that the children live with the mother; that the children spend time with the father as agreed between the parties but failing agreement each Sunday from 9 AM until 6 PM, with the father to take the children to swimming lessons, should they be scheduled, during this time.

3. An interim parenting hearing was held on 18 October 2019.  The father sought interim parenting orders, inter alia, that he spend overnight time with the children.  The mother sought the continuation of the above interim parenting orders of 5 June 2019.  The ICL sought interim parenting orders providing that the children spend time with the father during school term, from after school Friday until commencement of school the following Monday each alternate weekend, but being conditional upon the father’s completion of an anger management course, and complying with a proposed order relating to the father undergoing random liver function and CDT-testing.

4. On 25 October 2019 the interim parenting hearing held on 18 October 2019 was marked part heard.  The father was ordered to forthwith enrol in and complete a men’s behaviour change program, such as Baptist Care’s Facing Up program or a similar program.  The court made this further order:

   3. Upon the father providing the ICL and the mothers solicitors evidence that he has completed such above men’s behaviour change program, he shall have liberty to relist the proceedings on seven days’ notice.  At the resumed mention of the proceedings accordingly, the court will relist the part heard interim parenting hearing for a further interim hearing fixture.

5. The court further ordered that the father shall continue to spend time with the children pursuant to the courts interim parenting orders of 5 June 2019.

6. On 13 February 2020 the mother filed an Application in a Case seeking interim parenting orders, inter alia, that the time with orders of 5 June 2019 be discharged; and that subject to the availability of the contact service to facilitate supervised time, the children spent supervised time with the father from 12 PM to 2 PM each Sunday at the nominated contact centre.  She also seeks restraining order against the father that he be restrained from attending within 50 m of the mother’s residence at Suburb A, unless an agreement in writing is reached between the parents. 

7. The mother’s case outline filed 15 May 2020 seeks interim parenting orders which are somewhat different to the above orders proposed in her Application in a Case.  Those orders proposed seek the children’s time with the father to occur at a contact centre, and if supervised time cannot take place at a contact centre, then the mother proposes that the parties seek to agree on supervisors, and in this context she proposes the following supervisors to attend at visits between the children and the father: the paternal grandmother and the maternal grandfather.

8. On 14 February 2020, the father filed a Response to an Application in a Case seeking interim parenting orders, inter alia, that the time with orders of 5 June 2019 be discharged; and that the children spend time with him from the conclusion of school on Friday or 3:30 PM until the commencement of school on Monday or 9:30 AM on a fortnightly cycle, together with spending one half of each shorter NSW school holiday period with them.

9. The father’s proposed orders set out in his case outline were somewhat different to his proposed orders set out in his Response.  He still sought to spend overnight time with the children.

10. This interim hearing relates to the above proposals of the mother and the father set out in their respective case outlines.

11. The Court refers to its Reasons for Judgement and related interim parenting orders dated 25 October 2019.  There is a significant overlap between the issues dealt with in that interim parenting judgement of 25 October 2019 and the current interim hearing.  Further, the parties at this interim hearing are relying upon (apart from other material) material that was relied upon at the interim hearing of 18 October 2019, to which the judgement of 25 October 2019 relates.  To understand the within interim judgement, it is useful to have regard to the court’s interim parenting judgement of 25 October 2019.

Material relied upon

1. The mother relied upon the following documents:

   a)her case outline

   b)the documents relied upon by the mother as set out in her case outline

2. The father relied upon the following documents:

   a)his case outline

   b)the documents relied upon by the father as set out in his case outline

3. The Court has had regard to the Child Inclusive Conference Memorandum dated 8 July 2019.

Agreed facts unless otherwise stated

1. The father is aged 42 years.  The mother is aged 40 years.

2. The parties commenced cohabitation and were married in 2005.  They separated in about late February 2019.

3. Again, interim parenting orders are made on 5 June 2019 provided that the children spend time with the father each Sunday from 9 AM until 6PM.  The father spent time with the children pursuant to those orders until about 26 January 2020.

4. The father asserts that in early February 2020 he commenced a parenting after separation course which was to run for five weeks.  As of 14 February 2020 he had attended two weeks of this course.

5. On about 11 February 2020 the father attended the Anglicare office for the first of two assessments for admission into Anglicare’s Men’s Behaviour Change Program.  The father was to attend on 27 February 2020 for the second assessment.

6. On 21 November 2019 the father began seeing a counsellor regarding his anger management issues.  He attended seven treatment consultations from that earlier date to 7 February 2020 with a psychologist focusing on cognitive behaviour therapy and anger management training.

7. On 17 March 2020, the father was advised that the Anglicare STOP Men’s Behaviour Change group was postponed due to Covid19.

8. From 26 January 2020, the mother did not facilitate the children spending time with the father.

9. In the email letter from the mother’s solicitor to the father’s solicitor dated 3 April 2020, the mother’s solicitor confirmed that the mother was willing to resume time with the father upon him completing the men’s behaviour program with some evidence of its completion.  He then noted that the men’s behaviour change program had been suspended and the contact centres were currently also closed.  He indicated, on behalf the mother, that he would seek instructions from the mother as to whether some form of contact could be arranged (between the children and the father).  The solicitor for the mother then stated, “Our possible suggestions are that:

   1.  The father can take the children for an exercise walk around the block; or

   2.  Take the children for a bike ride in the park; or

   3.  Take the children to McDonald’s drive-through and perhaps even the car.  Please note that the children are not to go to the father’s home and that visits should be short (no more than 30 minutes)”.

10. The father has attended two online sessions and has had 4 telephone sessions with the group facilitators of the Anglicare online zoom education relating to the STOP Men’s Behaviour Change Group.

11. The paternal grandmother has sworn and affidavit filed 14 February 2020.  Inter alia, she asserts that the children have a warm relationship with her.  She asserts that the children would spend time with the paternal grandparents when the father was spending time with the children on the Sunday, pursuant to the courts orders of 5 June 2019.  She asserts that on 26 January 2020, she was brushing the male child’s hair and noticed that his hair was trimmed.  She asserts that the paternal grandfather also noticed this and became incredibly upset “as it is against our religion to cut your hair.”  She asserts that prior to November 2019, the father was a bit short tempered.  She asserts that upon his commencement of counselling sessions on 21 November 2019, she has observed a drastic improvement in the father’s behaviour. She asserts that the father is much calmer now and tries to resolve problems more peacefully.  She asserts that she has also witnessed the father become a better, more attentive and caring father to the children.

12. The brother in law of the father, swore an affidavit filed on 14 February 2020.  Inter alia, he asserted that he has been married to the father’s sister for about 10 years.  He asserts that he has two children aged six and four.  He asserts that the children spoke positively to him about having spent time with the father following the courts orders of 5 June 2019. He asserts that he has noticed that the father has become visibly calmer and has taken it upon himself to become a better more attentive father. He asserts that he has witnessed the father is more proactive and perceptive in addressing the needs of the children.

13. The paternal aunt, the sister of the father, swore an affidavit filed 14 February 2020.  Inter alia, she asserts that her children have developed a strong bond in connection with their cousins, the children, since the party separation.  She asserts that the father, since the court orders 5 June 2019, has demonstrated an increased sense of responsibility, care and involvement with the children over a gradual period of time.  She asserts that for a period of about three weeks around early November 2019 she relied solely on the father to pick up her children from school every Monday, feed them, buy them, play with and put them to sleep, by reason of the illness of her husband.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed 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).

   [122] In 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.

   [123] 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.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, 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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. 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: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuation of that relationship.

2. There is a significant suggestion on the material before the court, that the children, following spending time with the father each Sunday from 9 AM until 6 PM, after the court’s interim parenting orders of 5 June 2019 up to 26 January 2020, have a meaningful relationship with the father.

3. Should the children continue to spend unsupervised time with the father each Sunday from 9 AM until 6 PM, pursuant to the court’s orders of 5 June 2019, there is a reasonable prospect that their meaningful relationship with the father can be maintained.

4. The court is concerned that if it makes the mother’s proposed interim parenting orders, requiring supervision of the children’s time with the father and such supervised time being limited to 2 hours each Sunday, there is a significant risk that the children’s meaningful relationship with the father will be detrimentally affected.

5. The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother contends that since the court’s orders of 5 June 2019 there has been a significant change in circumstances by reason of the combination of a series of events commencing in about early November 2019 and up to and event occurring on 26 January 2020, such that the court should determine the mother’s present applications for the children’s time with the father to be supervised.  The mother contends that her proposed order for supervision is in the best interests of the children. The mother also draws the Court’s attention to her material predating early November 2019 relating to, inter alia, the father’s alleged aggression and anger towards herself and the children.

2. In relation to the mother’s above contention, in relation to their having been a significant change in circumstances, the court observes that the interim parenting hearing held on 18 October 2019 was marked part heard, so as to enable the father to have the court revisit the father’s interim application to spend overnight time with the children following his completion of a men’s behaviour change program.

3. The court should state that its orders and related reasons for judgment of 25 October 2019 dealt with, inter alia, the issue of the father’s anger management issue including the mother’s related allegations of historical family violence perpetrated by the father.  The court had expressed its concern in relation to the children spending overnight time with the father in this context. 

4. And, in particular, the court was of the view that the risk to the children of being exposed to family violence at the instance of the father, including being exposed to his anger, could be mitigated, at least to a not insignificant extent, by continuing to spend daytime time with the father pursuant to the court’s orders of 5 June 2019.  Further, and of importance in this context of mitigation of risk of harm to the children, the court made an interim protective order that the father shall forthwith enrol in and complete a men’s behaviour change program, such as Baptist Care’s Facing Up Program or a similar program.

5. The Court has had regard to the mother’s allegations in relation to alleged events on 8 November 2019, 17 November, 2019, 8 December 2019, 19 January 2020, and events on 26 January 2020.

6. In relation to the alleged event on 8 November 2019, the court observes that the father did return the children to the after school care centre following the request of the mother that he do so.  The mother’s allegations do not suggest that the father physically harmed the children or verbally abused them, although they do allege that the father spoke firmly to them.  The father, for his part, significantly disputes the mother’s allegations in this context.  He alleges an innocent explanation for himself picking up the children from the after-school care centre.  He disputes speaking firmly to the children.

7. In relation to the alleged events of 17 November, 2019, the mother alleges that the father shouted at and swore at the children in relation to an alleged incident involving a broken sweet jar.  For the father’s part, he denies shouting or swearing of the children.

8. In relation to the alleged events of 8 December 2019, the mother expresses her concern in relation to 1 of the children allegedly stating to the mother that the father, in a certain context, “will get angry and hit her.”  The father disputes the allegations and concerns of the mother.

9. In relation to the alleged events of 19 January 2020, the mother alleges that the father was shouting and aggressive.  The mother alleges disputation with the father in relation to the children’s clothes.  The father denies that he was shouting and being aggressive.  Inter alia, the father asserts that he took action to purchase clothes for the children.  He denies that he threatened to harm the maternal grandmother.  There is a significant suggestion in the context of these allegations that the parents have difficulties co-parenting the children.

10. The mother alleges that on many occasions the children return scared and worried from the father’s home.  She alleges that she thought that the children would return happy and excited having been on a plane ride with the father.  She alleges that the children were very stressed about keeping the maternal grandmother safe from the father and barely mentioned the plane.  The father disputes these allegations and asserts that the children were very happy and excited on the plane ride and that they spoke about the plane ride for the entire day.  Further, he annexes to his affidavit filed 14 February 2020 photographs of the children appearing happy standing next to and on a stationary light aeroplane.

11. In relation to the alleged events on 26 January 2020, these allegations relate to the father’s alleged verbal reactions towards the mother and maternal grandmother over the telephone following one of the children’s hair being cut.  The police became involved and an ADVO was issued against the father for the protection of the mother.  The father does not expressly dispute swearing, shouting and speaking aggressively towards the mother (the father at one point speaking mainly in their native language) and at one point towards the maternal grandmother over the telephone.  The mother alleged to the police that the father, on taking the mother’s phone call, had immediately raised the issue of the mother cutting one of the children’s hair.  The father denies the mother’s allegations that the paternal grandfather and himself were shouting at the children the whole day and that he threatened the maternal grandmother.  Further, the father alleges that when he spoke to the mother about one of the children’s hair being cut, he moved into a room that was far away from the children and spoke to the mother and her parents in private.  He alleges that after that phone call, the children and himself decided to go to the B Theme Park to enjoy Australia Day.  He annexes a photograph in this context to his affidavit.  The father alleges that the parties are followers of the C Religion and that in their household it is forbidden to cut your hair on your head.  For the mother’s part, she asserts that this religious rule has not been followed by the father or his family, and she does not know why the father responded so angrily to the children having their hair cut.

12. The mother alleges that the father went swimming with the children on 26 January 2020 and began to drown and started pulling one of the children into the water to float himself.  This is denied by the father.  The father concedes that he was beginning to drown and alleges that the children called for a lifeguard who came to the father’s assistance.

13. In the context of the mother’s contentions, and related submissions, that the children’s time with the father should be supervised, it is not without relevance that the police “Grounds of the Application”, in relation to the events of 26 January 2020, records that the mother “mainly fears for the safety of her children as she believes (the father) is unpredictable and aggressive, and she fears that it will lead to violence towards the children.  The (mother) also has fears for her safety as she feels the (father) could react violently whenever he is unsatisfied with something involving her and the children.”

14. On the material before the court, the court is of the view that there will be no unacceptable risk of harm posed to the children in spending unsupervised time with the father, pursuant to the courts orders of 5 June 2019, provided the following further protective interim parenting orders is made:

    a)without admissions, the father be restrained from swearing or verbally abusing any person in the presence of the children, and be restrained from swearing or verbally abusing the children

15. In the immediate context above, relating to there being no unacceptable risk of harm posed to the children in spending unsupervised time with the father, the court takes into account the following existing interim protective orders of the court and other matters:

    a)the court’s interim orders of 5 June 2019 providing that each parent is restrained from physically disciplining the children or either of them; that the parents are restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party; that the parents are restrained by injunction from discussing the proceedings with or in the presence or hearing of the children, and from permitting any other person to do so.

    b)the court’s interim orders of 25 October 2019 that the father forthwith enrol in and complete a men’s behaviour change program such as Baptist Care’s Facing Up program or a similar program.

    c)The father asserts that in early February 2020 he commenced a parenting after separation course which was to run for five weeks.  As of 14 February 2020 he had attended two weeks of this course.

    d)On about 11 February 2020 the father attended the Anglicare office for the first of two assessments for admission into Anglicare’s Men’s Behaviour Change Program.  The father was to attend on 27 February 2020 for the second assessment.

    e)On 21 November 2019 the father began seeing a counsellor regarding his anger management issues. He attended seven treatment consultations from that earlier date to 7 February 2020 with a psychologist focusing on cognitive behaviour therapy and anger management training.

    f)On 17 March 2020, the father was advised that the Anglicare STOP Men’s Behaviour Change group was postponed due to covid19.

    g)The father has attended two online sessions and has had 4 telephone sessions with the group facilitators of the Anglicare online zoom education relating to the STOP Men’s Behaviour Change Group.

    h)The paternal grandmother, in her affidavit filed 14 February 2020, asserts that upon the father’s commencement of counselling sessions on 21 November 2019, she has observed a drastic improvement in the father’s behaviour.  She asserts that the father is much calmer now and tries to resolve problems more peacefully. She asserts that she has also witnessed the father become a better, more attentive and caring father to the children.

    i)The father’s assertions, in his affidavit filed 14 February 2020, that he has seen a significant change in his behaviour and his temper; he asserts that he is calmer, relaxed, more positive and organised.  He asserts that he has made more effort towards his relationship with the children and believes the children enjoy spending their time with him.

    j)There is no significant evidence alleged since October 2019 that the father has deliberately physically harmed the children.

    k)The father’s assertions, and related material, that he has spent positive time with the children since the court’s orders of 5 June 2019 and up to 26 January 2020

    l)the incident of 26 January 2020, relating to the father swearing and speaking aggressively towards the mother and the maternal grandmother related to, on the father’s assertions, a significant religious issue, namely the forbidden cutting of hair (whilst the court acknowledges that such verbal swearing and aggression is unacceptable)

    m)the father continued his psychological sessions for, inter alia, anger management training after the events of 26 January 2020, and commenced attending a parenting after separation course after this date.  And further, the father commenced telephone and online attendance for the Anglicare STOP Men’s Behaviour Change Group after 26 January 2020.

    n)The terms of the ADVO against the father of 26 January 2020 provide a level of protection towards the mother, and indirectly towards the children.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court takes into account the views of the children expressed to the family consultant on 2 July 2019.  The Court has not overlooked these views, including their statements to the family consultant, in relation to their concerns of the father, in the context of the court forming its views above, under the need to protect primary consideration, in relation to risk.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The children would also appear to have positive relationships with their grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents would appear to have taken such opportunities.

(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

1. Not applicable.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. There is a significant prospect, taking into account the matters discussed above under the need to protect primary consideration, including proposed an existing protective orders, that the children’s meaningful relationship with the mother will not be detrimentally affected should they recommence spending time with the father pursuant to the court’s orders of 5 June 2019.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

1. Not applicable.

(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

1. Not applicable.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The parents have demonstrated appropriate discharge of their responsibility is of parenthood, subject to the court’s discussion above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

1. The court refers to its discussion above under the need to protect primary consideration

(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. The court refers to its discussion above under the need to protect primary consideration

(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

1. These are interim parenting proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

1. The father seeks interim parenting orders that he spend overnight time with the children.  The court refers to its interim judgement of 25 October 2019 including its order 3 providing that, “Upon the father providing to the ICL and the mother’s solicitors evidence that he has completed such above men’s behaviour change program he shall have liberty to relist the proceedings on seven days’ notice.  At the resumed mention of the proceedings accordingly the court will relist the part heard interim parenting hearing for a further interim hearing fixture.”

2. The Court is of the view, consistent with its interim judgement of 25 October 2019, that until the father has completed the men’s behaviour change program (whether face-to-face or through relevant online participation in such program), the court should not proceed to determine, on an interim basis, his proposed orders to spend overnight time with the children.  The court has also taken into account, and has not overlooked, in reaching this view, the father’s participation in a parenting after separation course, his psychological treatment for anger management, and telephone and online participation in the men’s behaviour change program to date.  The court, acting cautiously and conservatively, and taking into account the mother’s allegations in relation to events both pre-and post-October 2019, against the father, in particular relating to his anger management issue, again is of the view that the issue of overnight time between the children the father should await his completion of the above men’s behaviour change program.

Summary

1. Evaluating the above discussed considerations under section 60 cc of the Act, it will be in the best interests of the children to make the following interim Orders and the court make such orders:

2. The mother’s proposed interim orders set out in her case outline filed 15 May 2020, together with her Application in a Case filed 13 February 2020, are dismissed.

3. Without admissions, the father be restrained from swearing or verbally abusing any person in the presence of the children, and be restrained from swearing or verbally abusing the children.

4. The father shall forthwith continue to spend time with the children pursuant to the court’s interim parenting orders of 5 June 2019.

5. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2021.

6. The Family Report shall deal with the following matters:

   (a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.

   (b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);

   (c)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 the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.

   (e)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 report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

7. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.

1. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

2. The proceedings are adjourned to a date in March 2021, following release of the family report, with the Court to advise the parties of that date in due course.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 25 May 2020