ATKINSON & ATKINSON

[2017] FamCA 274

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON [2017] FamCA 274

FAMILY LAW – CHILDREN – Interim hearing following remittal of matter following appeal – Best interests of the child – Where father represents a risk to the child by reason of ongoing engagement of the child in medical and psychological examinations – Where father has demonstrated no ability to protect the child from ongoing parental conflict – Where the father has made ongoing allegations resulting in police interventions with the child – Where the child has had historically disrupted primary care arrangements and is exhibiting behavioural issues reflective of separation anxiety – Where the child is at no risk in the mother’s household – Where there are older half siblings in the mother’s household – Where the parties agree that clinical psychiatrist Chapter 15 Expert should be appointed – Where the mother is to have sole parental responsibility – Where the child is to live with the mother – Where the child is to spend no time with the father for one month – Where the child thereafter  is to spend supervised time with the father. 

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA

Banks [2015] FamCAFC 36
Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode and Goode: [2006] FamCA 1346
Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
SS & AH[2010] FamCAFC 13
SCVG & KLD(2014) FLC 93-582

APPLICANT: Ms Atkinson

RESPONDENT: Mr Atkinson

FILE NUMBER: PAC 4343 of 2013

DATE DELIVERED: 3 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Khalil Ms Khalil of Fay Rose Legal

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: Mr Kheir of Khair Lawyers

Orders: pending further order

1. That the mother have sole parental responsibility for the child X born … 2013.

2. That the said child live with the mother.

3. That the child spend no time with the father for a period of one calendar month from the date of these orders.

4. That the father is restrained from contacting or approaching the child in any way save for as provided for in these orders.

5. That commencing from one calendar month from the date of these orders the child spend time with the father on a supervised basis for a period of two hours each week as provided for below.

6. That each party must as soon as practicable:

   (a)contact the B Contact Centre or such other contact centre as is reasonably agreed and arrange an appointment for assessment of suitability for supervision of the time the child is to  spend with the father;

   (b)      attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

7. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision then the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days’ written notice to the other party and to the Court.

8. The Contact Centre may recommend the parties, or either of them, to participate in a program or programs, and in that event, the Independent Children’s Lawyer may re-list the matter for mention on seven days’ written notice to the other party and to the Court.

9. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the child for a period of not less than two hours per week at times nominated by the Contact Centre, and such contact is to occur at the Contact Centre.

10. The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre, and on each occasion, promptly leave the building and the vicinity.

11. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 5, then contact shall occur at the times that are offered by the Contact Centre.

12. The time the child is to spend with the Father under Order 5 is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.

13. The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time his time with the child is to end.

14. If the Contact Centre during the currency of these Orders, declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these Orders, then the Independent Children’s Lawyer may, on seven days’ written notice to the other parties and the Court, restore the matter to the list. 

15. If, during the currency of these Orders, the parties and the Independent Children’s Lawyer agree in writing to vary these Orders, the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

16. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

17. Liberty to apply as to implementation of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343  of 2013

Ms Atkinson

Applicant

And

Mr Atkinson

Respondent

REASONS FOR JUDGMENT

1. The present application for determination relates to interim parenting arrangements for the child B born in 2013.

2. The child is the only child of the marriage between the applicant mother and the respondent father.

Context

1. The mother is presently aged 39 and the father aged 47.

2. The parties married in 2012 and separated in September 2013.

3. Subsequent to separation litigation commenced in relation to the parenting arrangements for the child when the child was only 11 months old.

4. Subsequent to separation the child was in the primary care of the mother until May 2014. At that time the child was retained by the father and the mother commenced proceedings.

5. On 9 July 2014 interim orders were made for the child to spend time with the mother from 10.00 am Friday until 10.00 am Monday each week and spend time with the father for the remainder of the week. Changeovers were to be affected at the F Town police station.

6. Subsequently, a final hearing as to parenting was conducted over some days in 2016 with final orders being made by Judge Harman in the Federal Circuit Court of Australia on 2 September 2016.

7. The orders of September 2016 provided:

   (1)That all prior parenting Orders with respect to the child, [X] born … 2013, shall be and are hereby discharged.

   (2)That the child’s mother, [Ms Atkinson], shall have sole parental responsibility for all major issues decisions for the child.

   (3)That the child shall live with his mother, [Ms Atkinson].

   (4)That the child shall spend time with his father, [Mr Atkinson], as follows:

   (a)Until the child commences primary school the following shall apply:

   (i)Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to arrange and attend the first available and offered intake appointment at the [B] Contact Service to permit an assessment to be undertaken as to suitability for the parties to utilise that service for supervised changeovers;

   (ii)Upon assessment of suitability by the [B] Contact Service each party shall then attend at such times, dates and places, follow all instructions and rules as are applicable with respect to the provision of supervised changeovers, pay all fees as are required and provide all consents, authorities and instructions as are necessary to permit changeovers to occur through the [B] Contact Service;

   (iii)Upon the [B] Contact Service being able to facilitate the child’s transition from the care of the mother to the father at the commencement of each period of time and from the father to the mother at the conclusion of each period of time, the child shall then spend time with his father for a period not exceeding two consecutive days and nights per fortnight and, if possible, from 5pm Friday until 5pm Sunday each alternate weekend and provided that if the above period cannot be facilitated by the [B] Contact Service, then time shall be for such period not exceeding two consecutive days and nights per fortnight as can be accommodated and such period shall commence and conclude at such times and on such days as the [B] Contact Service can facilitate;

   (b)Upon the child commencing primary school, the child shall spend time with his father each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day) and for such period not exceeding two consecutive days and nights per fortnight as can be accommodated by the [B] Contact Service during school holidays and [Mr Atkinson] shall be responsible for collecting the child from and returning the child to school at the commencement and conclusion of each school term period and school holiday changeovers shall occur through and in accordance with the availability and rules of the [B] Contact Service.

   (5)Pursuant to section 68B of the Family Law Act 1975, [Mr Atkinson] shall be and is hereby restrained and injuncted from presenting the child to any counsellor, psychologist or medical practitioner, save with the mother’s consent first had and obtained and provided that this restraint shall not preclude a medical practitioner providing medical treatment to the child in an emergency situation as defined by section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (being treatment that is required urgently to save life or prevent serious damage to the health of the child).

   (6)Notwithstanding any Order to the contrary, each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to enable the details of each parent to be recorded as both a parent and emergency contact person upon any school enrolment for the child and so as to enable each parent to obtain directly from the child’s school any reports or information they desire and provided, further, that each parent shall provide to the school a copy of this Order and shall make a request of the school (in writing) that the details of each parent be recorded in such a fashion as to ensure that each parent’s details are not accessible by the other and are not provided to the other.

   (7)Each parent shall forthwith and contemporaneous with the event cause any medical practitioner engaged with the child and providing emergency medical treatment to him to contact the other parent and advise them of that fact and so as to otherwise allow and permit each parent to be advised as to the child’s treatment and diagnosis and to visit the child if hospitalised.

8. Subsequently, by Notice of Appeal filed 13 September 2016, the father appealed in part the orders made on the 2 September 2016 to the Full Court of the Family Court of Australia. The father’s appeal was in relation to orders 2, 3 and 4 made by Judge Harman.

9. An application for a stay of the operation of the orders the subject of the appeal was dismissed by Judge Harman on 10 October 2016.

10. On 24 March 2017 the appeal was allowed with the Court relevantly making the following orders:

    (a)By consent, the appeal be allowed.

    (b)Orders 2, 3 and 4 made to September 2016 be set aside as on and from the first return date of the rehearing of the proceedings before the Federal Circuit court of Australia.

    (c)The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Harman.

11. Otherwise, the further orders being orders 5, 6 and 7 were not disturbed on appeal and have remained in force.

12. Consequent upon the orders made in September 2016, the child moved in to the mother’s primary care with the child spending time with the father as ordered.

13. The mother says that subsequent to the child coming into her primary care it took some time to get the child into a firm routine. She found that the child was better behaved when he knew what was going on. Initially, the child had difficulty settling into day care. The child had previously only attended his father’s day care centre. The child was initially aggressive with other children and would not share toys. He was spitting, scratching and throwing items at the other children. However, over time the mother reports that the child’s behaviours improved.

14. She says that the child’s behaviours on his return from time with the father are not present at her home or at the child’s day care.

15. In circumstances more fully discussed below, the child subsequent to spending agreed time with the father was not returned by the father to the mother’s care and has remained in the father’s care spending no time with the mother pending determination of the present applications.

The mother’s documents

1. For the purposes of the present application the mother relies upon the following documents:

   a)her Application in a Case filed 24 April 2017;

   b)her affidavit filed 24 April 2017.

2. In summary the mother seeks orders pending further order that provide for:

   a)the mother to have sole parental responsibility for the child;

   b)the child to live with the mother;

   c)the child to spend time with the father at a supervised contact centre pending further order for two hours per week.

3. The father for his part relies upon the following documents:

   a)his Response to the Application in a Case filed 26 April 2017;

   b)his affidavit filed 26 April 2017.

4. The father seeks orders pending further order:

   a)that he have sole parental responsibility for the child;

   b)that the child live with him;

   c)that the child spend time with the mother at a supervised contact centre on two occasions per week each for two hours.

5. The proceedings were transferred from the Federal Circuit Court of Australia to this Court by order made 27 April 2017.

6. The parties’ interim application came before the Court for determination on 2 May 2017.

The mother’s case

1. The mother asserts a history of domestic violence perpetrated against her by the father. The circumstances of that assertion remain for determination at final trial.

2. The mother asserts that pursuant to previous interim orders the father had developed a practice of taking the child to a doctor after the child moved from her care to that of the father and prior to the child being returned to the care of the mother.

3. The child’s attendances upon medical practitioners, the mother complains, were not disclosed to her prior to September 2016 including the circumstance that the child had been taken by the father to several paediatricians. Exh “F” reveals that the father caused the child to attend at the practice of a Dr C on no less than 80 occasions between 1 May 2014 and 23 December 2015 and Exh “G” reveals that the father caused the child to attend at the Suburb E Family Medical Practice on no less than 30 occasions from 2 November 2015 to 5 July 2016. In all a total of about 110 occasions in circumstance where the child was only with the father four days each week.

4. The mother explains that the child was and is an active toddler and denies that the child received any injury in her care other than what would be sustained in any ordinary minor childhood incident.

5. The mother says that the child has had behavioural issues and a language delay. The child, she says, struggles to express himself and gets distressed when he cannot do so. To her observation when the child becomes distressed he punches and kicks.

6. In the context of the present application the father adduces no objective evidence of any concerns as to the child arising from such attendances. Indeed, he procured a referral of the child to a paediatrician in November 2015 to address issues of behaviour and speech delay, both problems identified by the mother.

7. The father had, otherwise, made a series of complaints to the NSW Police and the Department of Family and Community Services asserting that the child was at risk in the mother’s care.

8. Subsequent to orders of 2 September 2016, the child spent time with the father commencing Saturday, 24 September 2016.

9. Exh “C” comprises the notes from the B Contact Centre relating to changeovers from September 2016. The notes reveal that on the child’s first changeover the child separated well from the mother and the child’s home and kissed her. The father rushed up to the child, picked him up, hugged him tightly and kissed him over and over saying “I missed you”. The father then buried his head under the child’s neck and appeared to start sobbing. The father was reprimanded by the caseworker for his behaviour and it was noted that the child “appeared to look bewildered and unsure of what was going on”. On the child’s return to the centre on 26 September 2016, notes reveal that the child was “crying and did not want to go with the caseworker to the mother. The child cried and spat at the caseworker”. It was further noted that the father was less than cooperative in assisting the caseworker returning the child to the mother. The caseworker noted that the child had a Band-Aid on one of his fingers and a few “sores” when returned by the father.

10. The mother complains that the father by attending upon the police on 26 September 2016 caused the police to attend at her home to perform a welfare check on the child at 8.45 pm on 27 September 2016. It was observed by the police that the child had “light bruising on his right knuckles on his hand and light bruising to his right shin”. This appears to be consistent with the observations by the caseworker at the contact centre when the child was retuned by the father. The police were informed by the mother that the bruises were received whilst at the father’s house. The police had no concerns and noted: “police are well aware that there is a custody issue between the two parties. This report is most likely reported to police for some sort of advantage the next time the person reporting goes to court.”

11. Later on 23 October 2016 the father contacted the police alleging that the child had told him that the mother had “smacked him across the face”. The police attended and observed no injury on the child and a short time later attended at the mother’s home for a second time. The police noted that: “police believe these allegations to be a result of a custody battle between the (father) and (mother)”.

12. The police records Exh “E” reveal that subsequently the father had contacted the police a number of times and provided to the police certain photographs of the child. The police report records: “looking at the photographs police believe the (father) has been stalking his ex-wife and selectively picking photographs where his son either looks unhappy or distressed. Other photographs of the (father) and the (child) depict the (child) to be happy and smiling…. Police believe these reports are vindictive and just a way to annoy the (mother) as she has more right of custody of the child at the moment. On the 22 October 2016 the (father) has come in again to report the same matter. On this occasion the same report was made police did not take any action rather just recorded the matter.

1. As a consequence of another complaint as to the child’s welfare by the father on 25 October 2016, the police attended the mother’s home to be advised that the child was at preschool. The police, despite the mother’s protests, attended at the child’s preschool. The child was undressed.  The police observed the child’s stomach, torso region, legs and back and were satisfied that the child appeared to be “in fine condition and good health. No signs of bruising nor abuse were evident”. The police further reported that “this matter appears to be a family law court battle the father constantly making claims that the child is being supervised by an irresponsible mother”.

2. Subsequent changeovers reveal that the child at times had significant difficulty separating from both parents, acted out at times physically. The notes reveal little done by the father to assist the problems at changeover. The child mostly settled after a period of time.

3. Yet on 25 January 2017 the child’s behaviour was such that the father was spoken to by a caseworker and informed that changeovers may have to be suspended if the child’s level of upset continues. It was suggested that a third party could perhaps return the child so as to ease the child’s distress. That did not occur.

4. It was noted by the Centre that on 6 March 2017 the child had a surface scratch on his right cheek from the cat and it was noted that the “explanation consistent with mark”. On 8 March 2017 on returning the child the father identified a mosquito bite on the child’s arm and then in the presence of the caseworker endeavoured to pull the child’s pants down alleging that the child’s body was covered. He was stopped by the caseworker. The child transitioned easily to the mother.

5. On 20 March 2017 the mother again complained to the Centre about the father’s continuing lateness for changeovers.

6. On 3 April 2017 the father was again late for changeover and the mother left the Centre and the child’s time with the father did not occur. The Centre was not open over the Easter period and it was ultimately agreed that the child would spend time with the father from 19 April to 21 April 2017.

The April 2017 events

1. At changeover on 19 April 2017 the Centre noted: “no issues reported. No visible injuries or bruising. The (father) was clearly emotional and crying when he saw the child as he hadn’t seen him for 4 weeks.”

2. On 20 April 2017 Exh “E” (NSW Police) reveals whilst the child was in the care of the father the father reported to police that he had observed on the child a “slight bump on the right side of his forehead and a sore just above his upper lip. The father alleged to the police that the child said “mum hit him”. The father reported to the police that he had taken the child to his local doctor the previous day. The police attended at the father’s premises at 9.30 pm that day with the police noting: “(the father) spent the majority of the conversation stating that (the mother) was a bad mother and that she should not have custody of the (child). The police observed a small bump on the child’s forehead which appeared several days old. The sore above the child’s lip appeared to the police to be a cold sore. The police observed that the child appeared very happy and was running around and playing with toys. The police attempted to ask the child what had happened and the child would not reply. With that the father said to the child “mummy hit you, didn’t she?” And “Say mummy hit you.” The child was non responsive. The police observed that the child appeared distracted by his play.

3. Subsequently, the police spoke to the mother and were informed that the child had some days prior bumped his head on the side of the slippery dip in the mother’s backyard thus causing the small bump on his head and that the sore on the child’s lip was a cold sore that the child had suffered for about a week but was “getting better”. The police noted: “after speaking with both parents it seems highly likely that (the father) is attempting to coach the child into saying that the (mother) harmed him. The bump to the child’s head looks small and is consistent with hitting his head on the side of a s. slide. No further police action.”

4. The father contacted the Centre on 21 April 2017 to advise that the child would not be returned. The Centre staff confirmed to him that no injury was observed on the child when presented by the mother.  The father falsely told the Centre staff that the child “currently has swelling on his head causing it to be twice the size of the other side” . That assertion is blatantly at odds with the observation of a doctor and the Police.

5. The father falsely reported to the Centre staff that the Police had told him “if you don’t think the child is safe do not take him home”. Such is not present in the Police report.

6. The father falsely asserts to the Centre staff that the Police had said “it was going to be investigated and look at laying charges with the child saying to the police “Mummy hits me”.

7. Centre staff informed the father that he should return the child, which the father did not do. The mother was advised by the Centre staff to seek legal advice about a recovery order.

8. Centre staff contacted Police who refuted the father’s allegations.

9. The police observations as to the child’s physical presentation were consistent with observations by a general practitioner to whom the child was taken by the father for the first time on 19 April 2017: Exh “I”. Thereafter, the father has caused the child to be further reviewed by that general practitioner on 20 April 2017, 21 April 2017, 27 April 2017, and 1 May 2017. More concerningly, the father showed to the general practitioner a video that the father had taken of the child to demonstrate the child’s reaction upon being told that he needs to return to his mother.

10. Notwithstanding that the general practitioner, Dr D, had only commenced attending upon the child on 19 April 2017 and was reliant on a history and background provided to him by the father in the child’s presence, Dr D saw fit to refer the child aged three for psychological intervention by reason of: “behavioural and emotional issues – background a custodial issues between estranged parents”.

11. The general practitioner sought no input from the mother. His expressed opinions are of little utility.

12. The father, notwithstanding orders restraining him from doing so, has continued to engage the child with health professionals.

13. On 28 April 2017 the father procured the attendance of the child upon the psychologist Ms G. The psychologist reports that the child had last been seen at the Kids Clinic for therapy in August 2016. Presumably such attendance ceased as a consequence of the injunctive orders made on 2 September 2016.

14. The father provided to the psychologist a history of his time with the child since the September orders and his observations of the child and his engagement of the child with medical practitioners. The psychologist facilitated a play session on Saturday, 29 April in the presence of the father. During the play session that was directed to family it was observed that the child did not relate any play for more than 30 seconds with “mum in the scene”. The father observed in the presence of the child that the child “must be thinking that he is going back to mum”. The psychologist reports that when the child heard that he ran back to the father saying he did not want to go. The psychologist expresses the view, quite surprisingly, on the limited evidence and observations available to her that “it was clearly evident that there was some fear attached to his mum’s home. It is recommended that a session with mum and the child will give a better understanding of his relationship with his mum. It is recommended that a mutual professional, most suited a court psychologist, may be the best person to conduct this session.”

15. The letter from the psychologist Ms G (Exh “J”) is of little utility in the context of the background circumstances referred to above.

The father’s case

1. The father in general terms asserts that from the date of orders in September 2016:

   a)the child has consistently been returned to him with unexplained bruises to his limbs and backside;

   b)the mother has failed to address the child’s speaking difficulties by the speech therapist that was engaged by the father when the child was in his care;

   c)that the child has consistently refused to go back to the mother at changeover;

   d)the child is returned to him with a skin rash which appears to be untreated by the mother, the child is returned to him with head lice in his care;

   e)the child only agrees to return to his mother when forced to do so or is forcibly taken by centre staff and he finds this experience very distressing;

   f)the child is content and happy and eats well when he is in the father’s care.

2. The father asserts that on 5 November 2016 he observed bruises and scratches to the child’s legs and arms. The father reduces no objective evidence of such assertions, although the contact centre notes for the day report “child appeared neat and tidy appropriately dressed for the warm weather. Worker observed a faded bruise on the child’s left leg below the knee about 1 cm long (it did not appear of concern to the worker)”.

3. Whilst the father appears to make much of the child’s distress at changeovers a perusal of the contact centre notes reveal that changeovers mostly were well-managed and that the child’s behaviour including on separating from the mother may well be reflective of some separation anxiety on the part of the child in circumstances where the child has been exposed to significant conflict between the parents since separation when he was but 11 months of age.

4. As to why the father engaged the child with a new general practitioner Dr D instead of the child’s previous practitioners the father says “I decided to take him to a new doctor as I was concerned that if I took him to previous doctors that had examined and treated the child that this would be viewed negatively by the mother and the authorities as being self-serving and I mainly concerned with the help and safety of the child particularly after he told me his mother had hit him on the head”.

5. As to the father’s assertion in relation to the small bump on the child’s head observed by him on 19 April 2017, that he was informed by the police that they would refer the matter to the Department of Family and Community Services and JIRT for further investigation, it is simply false and not supported by the police notes of the event referred to by the father himself.

The Family Report

1. The Family Report dated 23 February 2015 is Exh “H”. It provides some useful background to the matter.

2. The family reporter notes that the mother has three children from a previous relationship who, at the time of the report were aged 15 and 12 and 8, who live with the mother. Observations by the family reporter demonstrate a good relationship between these children and the subject child. It would appear probable that these relationships have strengthened in the period that the child has spent in the primary care of the mother since September 2016.

3. The family reporter notes many and varied allegations by the mother and father one against the other. The ultimate resolution of those allegations will now await a further final hearing at a future date.

4. It is noted that the father during the course of the family report interviews proposed that the mother’s eldest daughter W who is now almost 18 years of age would be an appropriate supervisor of the child’s time with the mother. W at present remains a member of the mother’s household.

5. As a result of observations of the father and the child the family reporter expressed concerns about the father’s presentation. She expressed the view that if the father is controlling of the child and/or prioritises his needs above the child’s a particular concern would be the lack of opportunity for the child to achieve differentiation of self, which is significant in identity development. A failure to achieve differentiation of self can have a detrimental impact on self-esteem, independence decision-making capacity, reality testing, emotional and/or psychological well-being and their capacity to form healthy adult relationships.

6. Yet on the other hand the observations of the mother with the child were generally positive.

7. As to the issue of violence, the family reporter noted that the mother made very serious allegations regarding family violence from the father. If the Court accepts her account of the violence it would be considered coercive and controlling violence which is likely to have caused the mother both physical and psychological injury. The family reporter noted that the father claimed that the mother’s complaints were fabricated and that her physical injuries were self-inflicted. These issues can only be resolved following contested evidence. Although the family reporter noted that both the Department of Family and Community Services and New South Wales police held concerns for the mother’s safety, it appeared that the father was also charged with violent offences against his previous wife. Ms L.

8. The family reporter opined that children can be negatively affected in numerous ways by having ongoing contact with a person who perpetrates family violence including controlling behaviour. This includes by having that person undermine their family relationships, increasing their own risk of exposure to violence and controlling behaviour, increasing their risk of experiencing psychological and emotional abuse and increasing their risk of being neglected physically and emotionally. Parents who perpetrate violence can also be overly permissive or authoritarian, they can use this as a weapon against the other parent and have impulsive reactions in disciplining the child.

9. The family reporter notes the father’s allegations as to the mother suffering some mental health disability. Although it is noted that in the context of the present application he makes no such assertion. Ultimately, the family reporter’s recommendations were dependent upon the Court’s factual findings in relation to the many and varied allegations that the mother and father make one against the other.

Interim parenting

1. In Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………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.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

2. In Deiter [2011] FamCAFC 82 (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In Eaby & Speelman (2015) FLC 93-654 (“Eaby”) the Full Court (Thackray, Ryan & Forrest JJ) on the same issue observed at 80,331:

   18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

4. In Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   51. …

   52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

1. In Keats [2016] FamCAFC 156 the Full Court again noted:

   [9] …the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

THE LAW:

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child (or another child who at the time was a member of the parent’s family) or family violence [s61DA(2)],

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].

6. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In the context of this matter where there are significant allegations one against the other and where clearly there is a significantly conflictual relationship characterised by the father’s coercive and controlling conduct and ongoing abuse of the child for the reasons discussed above the presumption shall not apply and by reason of the best interest considerations discussed below the mother will have sole parental responsibility for the child pending further order.

Best Interests:

The Primary Considerations: s60CC (2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

s60CC(2)(a) – “meaningful” relationship:

1. In Mazorski & Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The child is still of very tender years. His circumstances have changed over the period since the parties’ separation. He has spent varying periods in the primary care of both parents at which time the other has still retained a significant relationship with the child.

4. The child has been in the primary care of the mother since September 2016. At that time the child was just three years of age. It is to be expected that what would be a normalised development of appropriate attachments with his primary carer and his secondary carer has been significantly disrupted by his change in circumstances. The child’s behaviour at changeovers post September 2016 may well be reflective of a significantly disrupted attachment development. That circumstance will await expert opinion at final trial.

5. It is certainly apparent from the discussion above that the child has been engaged by the father in ongoing and systematic abuse by the father’s persistent attendance on medical appointments, ongoing baseless complaints to the police and to medical practitioners including a completely new general practitioner and the engagement of the child in what appears to be inappropriate psychological intervention having regard to the child’s age.

6. The father’s conduct was the subject of suspicion and comment by members of the New South Wales police. It is regarded in the context of this application in the factual circumstances referred to above, which is supported by the objective documentation, to be manipulative and designed to undermine the mother’s relationship with the child. There is simply no concern as to the welfare of the child in the mother’s household.

7. For the child to have an ongoing meaningful relationship with the mother it is apparent from the father’s conduct that the child needs significant relief from the father’s ongoing engagement of the child in what the father perceives to be forensic complaint and investigation. There is a grave suspicion that should the child continue to have unsupervised time with the father that he will continue as he has done before, in breach of ongoing court orders, to engage the child in medical examination and intervention and ongoing complaint about the mother.

8. This consideration is overwhelmingly indicative of the child being restored to the mother’s primary care and for the child to have a significantly limited relationship with the father so as to protect the child from ongoing abuse by the father.

s60CC(2)(b) – need to protect.

1. This factor is in itself also substantially determinative of the present interim application. The child (and indeed the mother) needs to be protected from the father’s conduct that continues to expose the child to conflict between the parents by reason of the father’s lack of insight into the damage being done by his ongoing conduct in investigation and complaint on baseless grounds. Such conduct can be seen as abusive of the child.

2. His conduct in ongoing complaints about the child in the mother’s care can be seen as coercive and controlling behaviour directed at the mother that causes apprehension and concern in her mind. It can only be that such apprehension and concern impacts upon the mother’s ability to parent the child where she is faced with the ongoing and persisted possibility that the father will once again lay claim to complaint and criticism about her.

The Additional Considerations:

1. S60CC(3) sets out the additional considerations:

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

   b)the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   to communicate with the child;

   ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

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

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

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

   j)any family violence involving the child or a member of the child's family;

   k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)any other fact or circumstance that the court thinks is relevant.

2. Regard has been had to each of the additional considerations set out above.

3. Many of the considerations await a fuller investigation in the context of a final hearing. Some relevant observations are set out below.

4. The child is of tender years and there is thus no cogent evidence as to the child’s views. By reason of the police report as to the father seeking to influence the child in complaint about the mother in their presence it is reasonably to be inferred that the father has otherwise engaged the child inappropriately in circumstances where it is reported that the child has made complaint about the mother’s conduct to the child’s new general practitioner. No weight is given to such evidence of complaint by reason of the contradictory objective evidence referred to above.

5. The nature of the child’s relationship with each of the parents is discussed at length above. There is no need to repeat the concerns held in relation to the nature of the child’s relationship with the father. Such relationship is fraught with risk of ongoing emotional and psychological abuse being perpetrated by the father on the child.

6. Otherwise, the child appears to have ongoing relationships with his older half siblings that reside in the mother’s household. Such relationships would be important to a child of such tender years.

7. As to the likely effect on the child of a change in the child’s circumstances, it is to be expected that such would be minimal after a reasonable period of the child readjusting in the mother’s household. At present she has not seen the child for some weeks but as before there is a reasonable expectation that once the child returns to her care he will settle in appropriately. The presence of his older siblings would in all probability assist the re-establishment of the child in  the mother’s household. The question remains as to the effect on the child of a change in his relationship with the father. It is clear that the child needs some time to as it were “get out from under” the father’s adverse influence in terms of the child’s relationship with the mother. The father’s ongoing conduct demonstrates little capacity in him to properly reflect as to the child’s emotional and psychological needs in relation to the mother or at all. It is thus in the child’s best interests for there to be a short hiatus in his time with the father and thereafter for the child’s time with the father to be exercised in more closely scrutinised supervised arrangements where any adverse conduct in relation to or communication by the father with the child will be reported appropriately.

8. As to parental capacity, a determination ultimately will depend upon the final hearing, the opinions provided to the Court by an agreed Chapter 15 expert and the Court’s ultimate determinations at trial. At present the father presents with a significantly diminished capacity and insight particularly as to the child’s emotional needs.

9. There are allegations of family violence one against the other that await determination. Otherwise, there are allegations by the father, at least historically, that the mother suffers some mental incapacity. Such allegation is not repeated in the context of this interim hearing. A determination as to these issues will await a final hearing.

10. There is some reference to an old existing apprehended domestic violence order for the protection of the father and child as against the mother. No copy of any order or any other information was provided.

11. In the context of this interim hearing, the Court is not able to make orders that would not lead to the institution of further proceedings until this matter is resolved at final hearing.

12. Overall, it is in the best interests of the child by reason of the background circumstances and considerations discussed above that interim orders be made restoring the child to the primary care of the mother, a short suspension in the child’s time with the father and thereafter a resumption of the child’s time with the father on a supervised basis pending further order.

13. Orders will be made accordingly.

I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 May 2017.

Associate: 

Date:  3 May 2017