Arena & Arena (No 3)
[2023] FedCFamC1F 1129
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 3) [2023] FedCFamC1F 1129
File number(s): WOC 1226 of 2019 Judgment of: CURRAN J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PARENTING – Application in a Proceeding – Where an incident occurred leading to mother unilaterally ceasing time between the children and father – Events occurring shortly after final hearing while judgment reserved – Where father seeks interim orders that time be reinstated pending final determination – Where orders made for children to spend time with father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZL Cases cited: Goode & Goode (2006) FLC 93-296 Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 21 November 2023 Place: Sydney Counsel for the Applicant: Mr Cataldi (later withdrew) Solicitor for the Applicant: John Stonham & Co Lawyers (later withdrew) The Applicant: Litigant in Person Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Maguire & McInerney Lawyers Solicitor Advocate for the Independent Children’s Lawyer: Ms Dodson Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Nowra Family Law ORDERS
WOC 1226 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARENA
Applicant
AND: MS ARENA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The children, namely X born 2009 and Y born 2010, shall spend time with the father commencing on Sunday 26 November 2023, as follows:
(a)Each Tuesday and Thursday from the conclusion of school to 8.30pm;
(b)Each Sunday from 4.30pm to 8.30pm;
(c)From 8.00am to 1.00pm on Christmas Day 2023; and
(d)At all other times as agreed between the parties in writing.
2.The parents are to do all things necessary to changeover the children as follows:
(a)All changeovers that occur that the conclusion of a school day are to take place at the children’s school;
(b)For all other changeovers, the parents or their nominated person shall changeover the children at the Service Station, G Centre, Suburb H; and
(c)Each parent is to remain in their motor vehicle except in the case of an emergency.
3.The father and mother shall be restrained from speaking to the Children or in the presence or hearing of the Children or either of them in relation to:
(a)Any subject matter relating to these Court proceedings, except as to the recommencement of the children’s time with their father pursuant to these orders; and
(b)The future parenting arrangements of the Children.
4.Order 13 of the Minute of Consent Order “A” made on 5 June 2020 is discharged.
5.The mother shall facilitate X communicating with his father by Facetime or similar means at all reasonable times requested by X.
6.Order 1 made on 21 November 2023 be varied such that no later than 4:00pm on 13 December 2023, that father is to file and serve written submissions in support of his Application in a Proceeding filed 1 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arena & Arena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) I set out my reasons in short form.
INTRODUCTION
This matter concerns the children X, born 2009 and Y, born 2010 (“the children”). It is significant to note that X has special needs. X was diagnosed at age five as being on the autism spectrum and has Attention Deficit Hyperactivity Disorder (“ADHD”).
Yesterday, an application to re-open the final hearing by both parties was determined with orders for the matter to be re-opened. The final hearing of the relevant evidence then continued with the cross examination of each the mother and father, followed by submissions. At that time both parties were represented. At the conclusion of the evidence, final determination of the matter was reserved. The father’s Application in a Proceeding filed 1 November 2023 and mother’s Response to Application in a Proceeding filed 17 November 2023 were then heard. These are the reasons dealing with those competing interim applications for the children to spend time with the father pending final determination of the matter, which is now reserved.
This matter has a long history which I will not repeat other than is necessary to deal with the current applications. Family therapy with Dr F was ordered, by consent by Judge Altobelli, as he then was, on 13 February 2020 which resulted in an informal arrangement for time between the father and the children. Orders setting out the arrangements for time between the father and the children were never formalised, however the arrangement reached was largely followed by the parties as an interim arrangement until 3 September 2023. Those informal arrangements were that the children spent time with their father each Tuesday and Thursday from 2.00pm until 8.00pm or 8.30pm, and each Sunday from 4.30pm until 8.00pm or 8.30pm.
The final trial of this matter was listed before me for final hearing for 4 days commencing on 28 August 2023. There was evidence during the trial as to an ongoing and unresolved dispute as to the drop off time at the conclusion of the father’s time pursuant to the informal arrangement. The mother contended the agreed time was 8.00pm. The father contended it was 8.30pm.
Several days after the conclusion of the final hearing, the children spent time with their father on Father’s Day, and time was ceased by the mother after that occasion. The mother alleged that, in breach of an injunction made by consent on the final day of the trial, the father discussed court matters with the boys and was late in returning the boys to the drop off location being, she says, at 8.57pm.
It is not in contest that: the father has not spent time with the boys outside of sporting fixtures since 3 September 2023; that an undertaking was sought by the mother on 5 September 2023 for the father to refrain from discussing court proceedings with the children and to return the children by 8.00pm; and that on 26 September 2023 the father advised he would sign the undertaking provided that mother also sign an undertaking not to withhold the boys and to make the pet available with time with the boys.
The interim application before me was listed to deal with the competing interim orders for time between the boys and their father, and in the father’s case, also for orders for parental responsibility and an order sought in respect of the attendance of the pet.
THE FATHER’S CASE
In the father’s case, I read and have regard to:
(a)Application in a Proceeding filed on 1 November 2023;
(b)Father’s affidavit filed on 1 November 2023;
(c)Written submissions filed on 17 November 2023;
(d)Case Outline Document filed 17 November 2023;
(e)The Family Report of Ms C dated 23 June 2023; and
(f)Dr F’s report dated 15 September 2020.
The father is seeking orders for time, a variation to orders made in respect of communication, a variation to parental responsibility orders (made on a final basis by consent on 31 August 2023), and for orders dealing with the pet (who pursuant to final orders made in property proceedings was transferred to the mother).
Part way through the interim proceedings the father’s counsel and solicitor withdrew. After explaining the process to the father, his interim application continued with him self‑representing.
As a consequence of the father’s counsel withdrawing, I offered, and the father accepted, the opportunity to provide written submissions within 7 days in support of the parental responsibility orders he sought, and on the question I raised as to the jurisdiction that I had to make orders about the pet. Accordingly, this judgment deals with the balance of the issues identified because of the urgency of these matters.
THE MOTHER’S CASE
In the mother’s case, I read and have had regard to:
(a)Response to Application in a Proceeding filed on 17 November 2023;
(b)Mother’s affidavit filed on 17 November 2023;
(c)Case Outline Document filed 20 November 2023; and
(d)Family Report of Ms C dated 23 June 2023.
The mother sought orders as set out in her Response to Application in a Proceeding seeking, in effect, the same orders she sought on a final basis being, that time is spent each alternate Sunday from 9.00am until 4.00pm and each Thursday afternoon from after school until 8.00pm, and special occasions and holiday time.
The mother’s alternative position was to adopt the Independent Children’s Lawyer’s (“ICL”) minute.
THE INDEPENDENT CHILDREN’S LAWYER’S CASE
In the ICL’s case, I read and have had regard to:
(a)Case Outline Document filed on 20 November 2023;
(b)Minute of orders sought (which was found at pages 59-60 of the mother’s affidavit filed 17 November 2023); and
(c)Written submissions filed on 17 November 2023.
THE LAW
Although this is an interim hearing, there had been cross-examination and some testing of the evidence by virtue of the fact that the trial was re-opened and the evidence relevant to the re‑opening included the events after Father’s Day 2023. However, not all the evidence in the interim application was tested in cross examination. By virtue of that fact, caution is to be exercised in respect of making findings in relation to disputed facts. In this case however, the final hearing had been heard and reserved just prior to the interim hearing as referred to above.
The procedure for conducting an interim hearing has been established by the Full Court in Goode & Goode (2006) FLC 93-296 (“Goode & Goode”). It is an abridged process where the scope of enquiry is curtailed. Consistent with the guidelines set out in Goode & Goode, and to the extent relevant to this application, I have identified the competing proposals of the parties, the issues in dispute, and the contested facts.
Parenting proceedings are governed by Part VII of the Act where the meaning of a parenting order is defined.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child. This applies whether an interim or final proceeding.
BEST INTERESTS OF THE CHILDREN
Section 60CC(2A) of the Act identifies that greater weight is to be given to s 60CC(2)(b), that is the need to protect the children from harm. However, both of the primary considerations, that is, ensuring that the children enjoy a meaningful relationship with each parent, and the need to protect the children from harm, have been considered by me.
Section 60CC(2)(a)
The evidence supports that both the children enjoy meaningful relationships with both of their parents and that they derive benefit from the relationships they have with each of their parents. The Family Report identifies the connection and the existence of a meaningful relationship between the children and each of their parents.
The opinion of the Court Child Expert is that the children see their mother as primary attachment figure with whom they have a close relationship.
Ms C identified that Y has a more limited and complex relationship with his father, but that it is still a meaningful relationship, although she notes in her opinion it is disrupted.
In respect of X, at paragraph 94, the Court Child Expert notes:
It appears that [X], despite his strong views about his father, is coping well enough with the current spend time with arrangements. There are concerns about how [X] would cope with additional time, given his views and given the concerns raised historically about his safety and the poor parental relationship.
The independent evidence also supports a finding that the children derive benefit from the relationship they have with their father. The evidence indeed from the mother that supports such a conclusion, that includes that although Y’s text message stating that the father was “off his chops”, Y stayed until the end of time, in circumstances where the mother asked whether he wanted her to come get him, messaging “We r close if you need me”. Y acknowledged this with a reply saying “I’ll let you know if I need you to come and pick me up”. He did not do that.
At paragraph 9 of the mother’s affidavit, the mother deposes that “[X] was excited to buy his Father a gift and [Y] agreed.”
At paragraph 45 of the Family Report, it is reported that:
[Ms Arena] believes that, in the last two months, [Y] has appeared more positive about spending time with his father, noting that he has spoken about attending activities together, that his father has bought him gifts and that the scheduled times have occurred consistently and on time.
There is significant other evidence in the material of the father in relation to the positive relationship he has with the children.
At paragraph 71 of the Family Report, the Court Child Expert reports that “He [Y] said that he generally enjoys spending time with his father, particularly liking “shooting hoops” with him.”
The father’s submission expressed his concern to be able to develop a meaningful relationship with the children, including on an interim basis moving to the first stage of orders he proposes as final orders, including overnight time. I do not agree that on an interim basis the orders he seeks are necessary for him to maintain his meaningful relationship. I find he has a meaningful relationship with the children as referred to above. I acknowledge that he wishes to spend more time including overnight time, however, I am not satisfied that on this interim basis, after the break in time over the last two and a half months, that such a variation is supported on the evidence.
Section 60CC(2)(b)
Relevant to this application is the issue of risk to the children that is identified at s 60CC(2)(b) of the Act. Greater weight is to be given to this consideration pursuant to s 60CC(2A).
The mother has made and maintains very serious allegations about the risk she says the father poses by his inability to regulate his emotions and the exposure of the children to his behaviour.
The mother also reported her complaints to the Court Child Expert. Documents produced on subpoena were considered in detail by the Court Child Expert who, after consideration of the material, opined that there was risk of harm. The report provides significant detail by way of the documents she reviewed and the Court Child Expert critiques carefully the evidence leading to the opinion she expressed. I have carefully considered the Family Report.
The Court Child Expert has undertaken a detailed report, analysing the material she had available from third parties, the evidence of the parties and the interviews with the parties. She observes of Y that he “presented as an intelligent, compliant and sensitive child who was under immense pressure. He is described by his parents as a smart, sensitive and responsible boy who cares deeply for those he loves.” She observes of X that he:
… presented as a busy and determined adolescent boy who spoke in an unfiltered and spontaneous manner. He was reluctant to participate in both observations and in an assessment with this author and appeared eager to leave the venue. He is described by his parents as an affectionate, helpful and loving child who can struggle to regulate his emotions and as a child who requires constant supervision.
A key issue in respect of the Father’s Day incident that was the catalyst for the mother seeking the undertakings, was that this was either another incident of Y lying (as asserted by the father), or of the father denying his negative conduct as reported by Y, in this instance of him breaching the injunction made by consent only days prior.
The pressure and the ongoing, and indeed likely, increasing conflict between the parents has placed on Y is of particular significance in relation to the issue of psychological harm to Y, and that is one of the risks identified in the Family Report.
Section 60CC(3) - additional considerations
I have had regard to all of the s 60CC considerations, however those which are relevant to the competing proposals for interim orders for time are as follows:
(a)s 60CC(3)(a): the views of the Y in particular;
(b)s 60CC(3)(b): the nature of the relationship between the children and their parents;
(c)s 60CC(3)(d): the likely effect of the changes in the children’s circumstances;
(d)s 60CC(3)(f): the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs; and
(e)s 60CC(3)(j) & (k): the allegations of family violence.
THE FATHER’S DAY 2023 INCIDENT
The catalyst for the current conflict followed time spent on Father’s Day this year. The mother reported that, immediately upon drop off, Y sent a text to her at 4.33pm saying “His off his chops.” The father’s evidence is that there was no issue between the boys in the car and he denied the report made by Y and X to the mother following changeover on the drive home (as set out by the mother in her affidavit at paragraphs 28 to 29). The father said there was no issue other than Y was a little upset because he did not attend Y’s sports game, but that his attitude improved after a discussion that they had.
At the conclusion of Father’s Day, the children were returned to the mother. The father says approximately 10 minutes late, whilst the mother contended they were returned at 8.57pm, being almost half an hour late if it were an 8.30pm drop off.
The Court Child Expert observed at paragraph 55 that:
[Mr Arena] indicated that the children tend to become fixated on returning to their mother on time when with him. He said that they will remind him of the approaching time to exchange and remind him not to be late. [Mr Arena] was certain that he is usually on time or “not more than ten minutes late” at exchanges and that arrangement are more than 90 percent consistently adhered to. This author was unclear as to why the children would be worried about late exchanges if the parents had protected them from such disruptions and inconsistencies. Despite his assertion that he was not late to exchanges, he later gave an example that he dropped the children 45 minutes later than scheduled due to [Y’s] [sporting] commitments.
The issue of the time for the boys to be retuned has been, and remains, a source of conflict between the parents. If the conflict was limited to the disagreement about whether it was an 8.00pm or 8.30pm return time, it may be of less concern. However, the father’s conduct in returning the boys later than 8.30pm the first time the children spent time with him after the conclusion of the trial is of note.
It is concerning that: the father had been cross examined at length at the trial in respect of the dispute about time, and heard the mother’s evidence about the impact on the boys routine when returned late; he had heard that the mother believed the time to be returned was 8.00pm; he claimed to wish to improve communication with the mother with a view to seeking equal shared parental responsibility orders; and the father was aware of the comments of the Court Child Expert at paragraph 55 of the Family Report.
I prefer the mother’s evidence about the time the boys were returned on Father’s Day. The father’s evidence was somewhat difficult to follow. Initially, his evidence was that he asked Y to message his mother to advise they would be late and assumed that Y had sent a text to his mother because they wished to finish watching the television show, The Voice. When challenged with the evidence of the timing of Y’s text records he did not recall whether he asked Y whether the mother had replied. The father did not take responsibility for the failure to communicate the later time, saying it was Father’s Day and that he and the boys had made a joint decision to return later because they were watching The Voice. The responsibility fell, it seems, to Y who, on the evidence, did not communicate with his mother until 8.45pm in response to his mother’s text queries as to his whereabouts.
The father initially said he was 10 minutes late to change over and that it was a 10-minute drive to the changeover location. When questioned about the time with the text message exchange between Y and his mother, his explanation was that his evidence earlier was approximate. He later stated that he was pretty sure it was 8.50pm.
The father acknowledged that in hindsight he could have contacted the mother earlier but continued to minimise the incident as quite insignificant. This event is one example of conduct that supports the need for proscriptive orders for time to reduce to a minimum any necessity for communication between these parents.
The evidence supports the mother’s assertion that the father left home with the boys at around 8.45pm when Y texted his mother, it was approximately a 10-minute drive (according to the father), and that they arrived at changeover as the mother said at 8.57pm. I am also persuaded by the evidence of the mother was precise because she was waiting to collect the boys and was, so to speak, ‘watching the clock’. She also sent several messages via My Family Wizard which corroborate her evidence as to time which I accept.
The father was armed with the opinion of the Court Child Expert that the time for drop off had been identified as anxiety provoking, and had days earlier been cross examined as to the time conflict and impact of same, however, he was still prepared to have to mother wait for between 27 and 57 minutes (depending on whether changeover was 8.00pm or 8.30pm) at the changeover location. He seems unaware of the anxiety that this creates for the children and the mother and appears unaware of the negative impact on the parties co-parenting relationship.
With these findings and orders that I make today for time proscriptively, I hope the father will understand the impact of his conduct and prioritise returning the children to the mother in accordance with the orders of the court as he said in evidence that he would. It may go some way to improving the co-parenting relationship.
ISSUES
The issues to be determined on an interim basis are as follows:
What time the boys will spend with the father?
For these reasons I am satisfied that on an interim basis it is in the best interests of the boys to return to the “informal” arrangement that had been in place pending my final determination. To continue, by enforceable orders, the existing stable relationship that was in place is, in my view, in the best interest of the boys pending final determination of all matters, for the reasons set out.
The boys have spent no usual Tuesday, Thursday or Sunday time since 3 September 2023, now over two and a half months. A return to the previous arrangement is supported by the Court Child Expert’s observations about routine and blocks of time, and takes into account X’s special needs and in particular his uncontroversial need for routine and stability. X on all the evidence of both parties, thrives on routine and consistency.
At paragraph 66 the Court Child Expert noted that Y:
… presented as generally composed, however dissolved into tearful sobs when asked about his memories of his family prior to the parental separation. He took several minutes to settle. He was worried about his father knowing his views. He presented as a child under considerable and intensifying pressure and as attempting to navigate what he understands is a particularly poor parental relationship.
The father reported to Court Child Expert at paragraph 63 that “[Y], given his age, intellect and maturity, ought to have significant weight placed on any views he expresses.”
The Court Child Expert observed, at paragraph 90, that Y’s “view to not want to increase his time with his father is suggested to be given weight, and an indication of his sense of relationship with his father. This author found no indication that [Y] has been coached or unrealistically estranged from his father.”
Paragraph 96 of the Family Report noted that “The current arrangement of limited time with their father has likely been beneficial, as feelings and behaviour are able to remain settled and contained for shorter blocks of time.”
The Court Child Expert further expressed at paragraph 96 of the Family Report that:
It is suggested that, with larger blocks of time, there is greater opportunity for a parent to feel overwhelmed and dysregulated themselves, especially in the face of challenging child behaviour. If there is not reassurance of a more positive skillset of responses from the father, there are concerns that past behaviour will repeat. This is something that [Y], at least in the past, has been concerned about.
I put weight on the opinion of the Court Child Expert in making interim orders returning to the previous arrangements, and the time that should occur will conclude at 8.30pm. The reason that the time will conclude at 8.30pm is it appears that the time that was adopted that the boys are used to is 8.30pm. It allows time for the father to spend time with the boys, have dinner, complete homework, relax and watch some television, as has been the practice. X appears, on all the evidence, to enjoy music and watching television with his father before he’s returned home. It is also coming to the end of the year and these are interim orders. It is coming towards school holidays and it is daylight savings time. The time pressure for the school routines for these interim orders will be reduced. There is no magic in whether it is 8.00pm or 8.30pm but they are the reasons why I determined that 8.30pm drop off is the time the boys are used to.
Whether the time will include overnight time
The interim time will not include overnight time for the reasons that follow.
Firstly, there has been over two months now of no regular time which is a substantial change to X’s routine given his special needs. Both parents seek a significant deviation from the previous routine, with the father seeking to increase time to include overnight time, and the mother seeking to substantially reduce the frequency of time that the children spend time with their father, I note in accordance with the recommendations of the Court Child Expert.
The father refused to sign the undertaking proposed by the mother on 5 & 7 September 2023. It was submitted by counsel for the mother colloquially, that the father had “cut off his nose to spite his face”. The father was having time with the boys on three separate occasions per week. Sadly, instead of giving way to a 30-minute disagreement as to return to time each Tuesday, Thursday and Sunday, the father has gone for two and a half months without seeing the boys other than at sports fixtures. This is unfortunate for the boys.
Although equally, the mother could have agreed to the 8.30pm return time and pet delivery, it is necessary for me to consider the competing proposals through the lens of the children’s best interests. The father now seeks a significant increase in time, including overnight time, and the mother seeks a significant decrease in the frequency of time. The undisputed evidence is that routine is imperative to X and that routine has certainly been disrupted over the past few months.
A change to overnight time would be significant for X, with his special needs, when a final decision which may increase or decrease that time is contra-indicated, a cautious approach is required.
The disruption to the children’s previous routine and time could have been avoided by both parents, but they are each so entrenched in their views and their respective positions, that it is hard to see that any agreement about any matter could be achieved by them, even if this is at the expense of them having regular time with the father or maintaining X’s routine for the mother.
Secondly, I give weight to the report of Y’s wishes and of the vulnerabilities of Y articulated by the Court Child Expert.
I take into account the observations of the Court Child Expert as to the particular vulnerabilities of Y that she identified. I note that Y stated he wishes to “think about” overnight time. That was presented by the father in his submissions as significant in support of overnight time commencing. I do not agree. When read in whole, it is supportive of a finding that Y is feeling some pressure, likely due to the conduct of both his parents, but he has not expressed a wish to commence overnight time. After no time has occurred over the past few months, it is not, in my view, in his best interests to impose such a significant change on an interim basis.
Equally, I am not satisfied that the significant change from spending time several times a week and every Sunday should be drastically changed to three times a fortnight after there has been no time between the boys and their father, as proposed by the mother, again at least on an interim basis. Such a change could be equally detrimental to X in particular, in failing to regard the importance of his routine and how he actually adapts to change, and to Y who, as referred to above, derives benefit from the time he spends with his father.
Y has said to the Court Child Expert that his father often brings up the topic of staying overnight at his home, believing that such an arrangement is very important to his father. Y said that he often stays quiet when his father brings up this topic. Y is, as identified by the Court Child Expert and the parents, a mature and sensitive adolescent who is feeling the pressure of the conflict between his parents. I am concerned about any interim change, but I am mindful and cautious that with the final evidence in this matter concluding yesterday that final orders will shortly follow.
The Court Child Expert expresses at paragraph 73 of the Family Report that:
[Y] said that he believes that he should have a say in parenting arrangements about him, but worries about the impact of him saying his views. He said that he considers the current arrangement adequate with respect to his time with his father. When asked if he wanted to spend overnight time with his father, he said he would think about it, knowing that it is something that his father really wanted.
Thirdly, I give weight to the identification by the Court Child Expert of the lack of engagement by the father in behavioural change and the limitations she observed as to what he has learned from the education he says he has undertaken. The Court Child Expert observed at paragraph 57 of the report that:
In relation to offering the Court reassurance about concerns raised, [Mr Arena] was generally dismissive. However, he did offer, when asked if he had completed courses, that he has completed a parenting after separation course and a circle of security course, both estimated to have been several years ago. He gave a vague understandings of the courses, believing that both were about putting the children first and not focussing on parenting conflict. If he did complete the courses, this author is left with the impression that it has not had a lasting impact on either his knowledge or practice.
She also stated at paragraph 101:
Were the Court considering an arrangement that included the children increasing their time with their father to overnight time, this author would suggest the following pre-cursers. The father be engaged in at least six months of weekly counselling to address his relationship breakup with [Ms Arena] and his ability to genuinely and respectfully co-parent with her post separation. The counsellor is suggested to be provided a copy of this Family Report, the letter from [Dr F] and the report by [Dr E]. He is to complete a Staying Calm when Emotions Run High parenting course and again complete a Parenting after Separation course. He is to show reassurance that he can adhere to arrangements regarding the children with a focus on protecting his children from conflict, pressure and distress. Specifically, this includes adhering to arrangements on time and consistently and engaging with [Ms Arena] about smaller changes to arrangements in a child focussed and respectful manner. As well as committing to not expose the children to communication, comments or questions about their mother, arrangements or inquiries about the other home. He would also need to show that he is acting to contain and minimise communication breakdowns with his children’s mother. If these behaviours, programs and therapy are completed, this author would support that the children increase their time with their father to include an overnight.
As noted by the Court Child Expert, at paragraph 96, “[Mr Arena] has completed a type of parenting course (thought to possibly have been a circle of security course) however, his knowledge about the program was limited and he is not assessed as having integrated the model well into his parenting.”
For these reasons, I am not satisfied that either parent’s proposed significant change from the previously existing arrangements is appropriate or in the best interests of the children on an interim basis.
Whether orders for communication by skype or telephone that had been made on 5 June 2020 and had not occurred for a significant period of time should be varied?
There was no evidence in either parties’ affidavits in respect of the interim orders sought that went to the question of communication by skype or telephone. At the final hearing there was no recommendation or cross examination as to the benefit to the children of such time. Absent evidence, I must do the best I can to determine if the communication orders proposed to be varied are in the boys’ best interests.
There was significant evidence as to the impact of and pressure on Y as set out in the Family Report. I referred to some in these reasons and I do not propose to repeat all of the evidence.
The mother’s affidavit at paragraph 36 identifies that Y has a mobile phone and he is free to contact his father as he wishes. I am satisfied that given Y’s age, wishes and maturity identified in the Family Report, that it is appropriate to make no order for telephone communication in respect of Y.
X is more complex due to his diagnosed conditions.
The father submitted that without the mother engaging in the calls to help X and to facilitate the calls by asking for example prompting questions, it would be a futile exercise.
Given the fraught co-parenting relationship and complete mistrust between the parents, such an order would indeed be futile, it’s unlikely to be workable and it would almost certainly be likely to cause more conflict and possibly further litigation between the parties. These parties, over several years, have been unable to agree in relation to even just the drop off time without the judicial determination that I have made today. The father’s evidence in respect of the failure by him to undertake any communication with the mother when he decided to return the children late on Father’s Day this year was that he did not text the mother as she would not respond, despite a consent order being made days earlier for precisely that type of communication to occur.
In circumstances where there are long periods of time between visits or significant geographic distance, phone/video communication can be very important. However, the orders I am making on an interim basis are in essence those sought by the ICL with the later drop off time, with the children spending time with the father after school on Tuesdays and Thursdays, as well as each Sunday. These are the interim orders. These make for regular time being spent each week between the children and the father, with no significant periods of no contact. In addition, of course, the father attends the children’s sports fixtures.
For these reasons I find there is no benefit to the children, and it is not in their best interests, to make any order other than if X requests to speak to his father while he is in the care of his mother, the mother is to facilitate the telephone/video call.
I discharge order 13 of the orders of Judge Altobelli, as he then was, dated 5 June 2020 for telephone or video communication.
Orders to be made for Christmas day
The ICL proposed that the children spend time with the father on Christmas Day 2023. It is an important day and it is important that they spend time with their father on that day. The parties ultimately provided their consent to an order for the children spend time with their father from 8.00am to 1.00pm on Christmas Day and I make that order.
Whether orders should be made for parental responsibility?
In relation to orders for parental responsibility I defer the determination of this order until I receive the father’s written submissions.
In relation to whether the pet should be required to travel with the children when they spend time with the father on Sundays, I defer this determination until I receive the father’s written submissions.
It is noted that the entirety of the father’s Application in a Proceeding is not finalised in circumstances where the father became unrepresented during the interim proceeding and the father is to file written submissions in relation to those two discrete applications. It is however, in my view, in the children’s best interests for time to recommence without further delay.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 25 January 2024
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