Baird and Baird
[2016] FCCA 945
•13 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAIRD & BAIRD | [2016] FCCA 945 |
| Catchwords: FAMILY LAW – Interim parenting – where father acknowledges past family violence – where children are strongly resistant to spending time with father – whether there is a risk of psychological harm if children spend time with father, even if supervised. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA,68B |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MR BAIRD |
| Respondent: | MS BAIRD |
| File Number: | WOC 693 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 5 April 2016 |
| Date of Last Submission: | 5 April 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Marriott Oliver Solicitors |
| Solicitors for the Respondent: | RMB Lawyers |
| Solicitors for the Independent Children's Lawyer: | Verekers Lawyers |
ORDERS
Pending further order, the Mother have sole parental responsibility for the Children W (born (omitted) 2003), X (born (omitted) 2005), Y (born (omitted) 2007) and Z (born (omitted) 2012).
Pending further order, the Children live with the Mother.
Pending further order, the Children spend no time with and have no communication with the Father.
The matter be adjourned to 5 September 2016 at 9:30am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Baird & Baird is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 693 of 2015
| MR BAIRD |
Applicant
And
| MS BAIRD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the interim Orders made in relation to four children, W who is 13, X who is 10, Y who is 8 and Z who is 4. The issue to be decided is whether the children spend supervised time with their father or no time at all pending final hearing. These reasons for judgment explain why the Court has decided that the children should not spend any time with their father for the time being.
Background
The children’s father is the Applicant in this case. He is 36 years old. He has not seen the children at all since about March 2014. The Respondent is the children’s mother. She is 38 years old. The children live with her. Both parents and the children reside in the (omitted) area of New South Wales. The parents started living together in 2002, married in 2007 and separated on 15 December 2013.
The case outline document prepared on behalf of the Independent Children’s Lawyer contains a chronology, the source of which seems to be the documents prepared by both parents as well as the voluminous material produced on subpoena by third parties. The chronology is a very useful summary of background facts and is produced below:
| DATE | EVENT |
| (omitted) 1977 | Mother born (38 years old) |
| (omitted) 1979 | Father born (36 years old) |
| 2002 | Mother and father cohabitate |
| (omitted) 2003 | Birth of W (13 years old) |
| 2004 | Mother diagnosed with adjustment disorder with anxious mood. |
| 19 November 2004 | Father attends Dr V for depressive anxiety disorder. |
| (omitted) 2005 | Birth of X (10 years old) |
| (omitted) 2007 | Mother and father marry |
| (omitted) 2007 | Birth of Y (8 years old) |
| (omitted) 2012 | Birth of Z (4 years old) |
| October 2013 | Father assaults mother and child W. The father pushed mother to the ground in their bedroom, kicked her in the head. The child W came to the aid of her mother and the father kicked W in the torso area and was thrown on her bed by her father. |
| Father hands to W a Dexamphetamine tablet resulting in W displaying bizarre and uncontrollable behaviour at school. Allegation that on another occasion the child given a similar tablet by father. See FACS subpoena material. | |
| Date unknown | Father sent child W a number of text messages some of which had concerning content stating “make sure you find and spend your time with people who are prepared to jump off a cliff or stand in front of a gun for you snoop as anyone else who won’t will let you down and hurt you more than you can imaging. It will be behind you back or right under your nose.” |
| 15 December 2013 | Mother and father separate |
| 20 January 2014 | Father tests positive to amphetamine type substances. |
| 20 December 2013 – 27 January 2014 | Father spends supervised time with the children on approximately 15 occasions as arranged by the mother. |
| 27 January 2014 | The children cease spending time with the father. |
| 18 March 2014 | Father became aggressive and yelled at the mother. Father stated “I’ll screw you over so you get nothing. I’m going to deem my company worthless, so you get noting.” Mother reported matter to police. See NSW Police subpoena records and FACS records. |
| 11 April 2014 | Apprehended Domestic Violence Order made for the protection of the mother and the children for a period of 12 months. |
| 12 July 2014 | Father charged with contravening Apprehended Domestic Violence Order. |
| 8 July 2014 – 6 September 2014 | Father charged with contravening Apprehended Domestic Violence Order |
| 2 September 2014 | Child X is placed on a mental health care plan for family breakdown, significant verbal violence through this time and bullying at school. See (omitted) Medical subpoena notes. |
| 6 September 2014 – 19 September 2014 | Father charged with contravening Apprehended Violence Order |
| 23 February 2015 | Father charged with two counts of common assault domestic violence on mother and child W. Father sentenced to 12 months imprisonment commencing 23 February 2015 and concluding 22 February 2016. Sentence is suspended under Section 12 Crimes (Sentencing Procedure) Act |
| Apprehended Domestic Violence Order made on 11 April 2014 extended for a period of 2 years from 23 February 2015 therefore expiring 23 February 2017. See Subpoena material produced by NSW Police. | |
| 10 July 2015 | Child W attends Dr V for depressed mood, anxiety, suicidal thoughts, now more settled after separation of parents, exposed to serious domestic violence. W referred to psychologist Ms L. |
| 14 July 2015 | Mother referred for counselling under mental health care plan. Mother experienced severe domestic violence. See (omitted) Medical Centre subpoena notes. |
| 11 August 2015 | W attends Dr V referral to Mental Health Line. W attends Dr V 8 September 2015, 11 September 2015, 11 November 2015, 17 November 2015, 5 January 2016, and 24 February 2016. See Subpoena material produced by (omitted) Medical Centre. Child W seen for trauma counselling due to domestic violence. Child X referred for psychological counselling – see (omitted) Medical Centre |
| 28 October 2015 | Application and Affidavit filed by the father together with Notice of Risk |
| 23 December 2015 | Parties divorce |
| 25 January 2016 | Response to Initiating Application, Affidavit and Notice of Risk filed by the mother |
| 28 January 2016 | Orders made by Judge Altobelli that: 1. The father and mother contact CatholicCare (omitted) and arrange an appointment for assessment for suitability for supervision of the time the children spend with the father. 2. An Independent Children’s Lawyer is appointed. 3. The parties attend a Child Dispute Conference. Matter be adjourned to 5 April 2016 at 2.00pm for an Interim Hearing. |
| 3 March 2016 | Children meet with ICL Children attend CIC with Family Consultant Ms O |
| 14 March 2016 |
Most of the events referred to in the chronology set out above are either relatively uncontentious or are in any event, based on a reasonable interpretation of documents produced on subpoena. The Father disputes the details of some of the accounts of the violence that he perpetrated. The Father disputes that he handed to his daughter W a dexamphetamine tablet but the fact is that in the subpoenaed documents both the Mother and W make this assertion. The Apprehended Domestic Violence Orders (hereafter referred to as ADVO) and the Father’s criminal convictions are not put in dispute.
Competing proposals
In the Father’s outline of case document he sets out a proposal for him to spend time with the children supervised for two hours a week for two consecutive weeks, then increasing to two hours twice per week again supervised. The father proposes that either Catholic Care, who operates the supervised contact centre in the (omitted) or a private professional supervised contact service be the supervisor. He also sought an order that he be permitted to send the children cards, gifts and photographs on their birthdays and on Christmas Day.
The Mother’s proposal is that she have sole parental responsibility, that the children live with her and that there be no contact or communication between the children and the Father.
The Independent Children’s Lawyer’s proposal is that the Mother have sole parental responsibility, that the children live with her and spend no time with their father. Moreover, the Independent Children’s Lawyer proposed a s.68B injunction restraining the Father from contacting or approaching the Mother and the children. The Independent Children’s Lawyer foreshadowed the need to obtain an Expert’s Report for the purposes of a final hearing.
It was common ground at the interim hearing that was held on 5 April 2016 that the major issue before the Court was whether there was a risk of psychological harm to the children in having supervised contact with their father. It was accepted that there would be no risk of physical harm to the children arising from supervised time.
The Cases Outlined
The Father’s case quite frankly acknowledged that his past actions had resulted in a situation where he did not have a meaningful relationship with the children at the present time. The orders he proposed it was contended on his behalf, provided the children with an opportunity to re-establish that meaningful relationship. The Father accepted that both the Mother and the children have been exposed to family violence that was perpetrated by him. The Father accepted that he had perpetrated family violence on W. He accepted that the children were expressing strong views against spending time with him. His case was based on the assumption that supervision would address the risk of harm issues presenting to the children. Supervision would provide a safe and transparent environment for the children to spend time with their father.
The Father’s case was based on him having at one stage a very close and meaningful relationship with the children which has now been lost. In his case the Court’s attention was directed to the fact that the children even now seem to be progressing well at school, a matter which is contended to be inconsistent with there being any risk of psychological harm if they spend time with their father. In relation to W, it was submitted that she already struggles with some emotional issues and body dysmorphia and thus it would be inappropriate to conclude that any risk of psychological harm to her is attributable solely to the violence in the relationship. On behalf of the Father it was suggested that some of the emotional issues that W was experiencing may well in fact be attributable to grief at the loss of her relationship with her father.
It is hard to imagine what else Mr Hodgson, who represented the Father, could possibly say in support of the Father’s case.
The Mother’s case was that in effect, the nature and intensity of the family violence to which the children and herself were exposed during the relationship as well as ongoing concerns about the Father’s mental health, his volatility and unpredictable behaviour, all led to the conclusion that there remained a risk of harm to the children even in a supervised contact environment. On her behalf it was submitted that the objective evidence suggested that the Father struggled with depression, anxiety and outbursts of anger. The objective evidence suggested that as recently as January 2014, the Father was using amphetamines. The children were expressing strong views against spending their father. The was objective evidence that W had told her doctor that she was terrified of her father and that X had told her doctor that she was frightened of her father. The children’s fear was further corroborated by records produced by the psychologist who was working with them. In those circumstances, it was submitted on behalf of the Mother any contact or communication with the Father might further distress the children. Thus, in the absence of independent expert evidence, a very cautious approach should be adopted about the reintroduction of any time or communication with the children.
The Independent Children’s Lawyer submitted that there was a significant psychological risk to the children associated with spending any time or having any communication with their father. She submitted that based on the objective evidence before the Court, the children were vulnerable and indeed suffering psychological harm as a result of the violence that they had been exposed to. Whilst W and X appeared to be showing most of the objective symptoms of distress associated with this, the Independent Children’s Lawyer urged caution about making an order for some of the children to spend time with their father but not others.
The evidence
The Mother relied on her Affidavit sworn 21 January 2016. The Father relied on his Affidavit sworn 26 October 2015.
A very substantial quantity of documents was tendered in evidence including the Child Inclusive Conference Memorandum to Court dated 14 March 2016, various cards that W had sent her father in 2013, school records from (omitted) Public School and (omitted) High School, medical records from (omitted) Medical Centre and (omitted) Medical Practice, psychological records from (omitted) Psychological Service and the (omitted) Centre, hospital records from (omitted) Hospital, New South Wales Police records and Department of Family and Community Services records. The delay in providing these reasons for judgment was attributable to the need to carefully go through this evidence.
The contents of this evidence will be discussed briefly in the following paragraphs.
The Mother’s Affidavit of 22 January 2016 is a detailed, compelling account of the relationship between the parents and the Father’s relationship with the children. It certainly presents a less optimistic account as compared to the Father about the nature of his relationship with the children before the violence commenced. The Mother’s account of the violence is detailed, as is her evidence about the impact on the children.
The Father’s Affidavit of 26 October 2015 is also detailed. He provides a compelling account of the nature of his relationship with each of the children and the strength of their relationship with him. He acknowledges the ADVO’s, the charges of breach of AVO against him, the two assault charges and the consequences on him. At paragraph 61, he expresses his deep regret for what he describes as his inexcusable behaviour. He says that his behaviour may have been attributable in some way to the medication he was taking for the ADHD that he suffers. He acknowledges that he has suffered in the past from depression and anxiety.
The Child Inclusive Conference Memorandum of 14 March 2016 referred to the three older children as being impressive and “despite obviously struggling at times with discussion of past traumatic events, they appeared determined to give their account and have a voice in the current proceedings”. The Family Consultant records that it was apparent that W had had been exposed to family violence and incidents that would have been traumatic for her. She referred to her father’s treatment of her as including swearing, being critical, absent and being violent towards her. W told the Family Consultant that her father had given her dexamphetamine on a number of occasions. W said that she could not cope with the idea that either she or her siblings might be ordered to have contact with her father. She was fearful of such an outcome. She described the fear that she felt when she saw her father drive past her school recently. W’s message to the Judge was that “she would beg not to ever see” her father.
In relation to X, the Family Consultant recorded how her demeanour changed when discussing her father. She too gave an account of having witnessed family violence. The Family Consultant described her descriptions of this as being “contextualised and detailed”. X spoke of her fear of her father, saying, “In my eyes, he’s really scary.” The Family Consultant reports “her overwhelming feeling” to keep the father away from herself and her siblings.
Y described to the Family Consultant his efforts to avoid thinking about his father and past events. He was able to recall incidents of family violence and his emotional reactions to these. Y “spoke of his wish to have Mr Baird completely out of his life”. He spoke of having seen his father in the street and his fearful reaction to this. He explained to the Family Consultant that if “ordered by the Court to spend time with his father, Y stated that he would hide so he could not be taken”.
Z, who was nearly 4 years old at the time of the Child Inclusive Conference, simply did not know his father.
Under the heading of “Future Directions”, the Family Consultant recorded that the children have voiced strong and clear views not to have contact with their father. She warned that, “This is a matter where both the psychological and physical safety of the children need to be considered. While supervised time ensures the latter, it does not address the former.”
The Family Consultant noted that the children appear to have a warm and loving relationship with each other and that they appear to be linked in with therapeutic supports. She recommended that an expert psychiatric report be undertaken.
On the Father’s behalf, it was submitted that perhaps the Child Inclusive Conference Memorandum presented a far too simplistic account of the children’s views in the context of the children not having spent time with their father for such a long period. With great respect to this submission, it suffers from the simplicity that it complains of. Indeed, one must wonder why the Father pursued the present application in circumstances where the independent and objective evidence of the Family Consultant, limited as it is of course, would clearly point to the risk of psychological harm to the children even if they spend supervised time with their father?
The documents produced from school records seem to confirm that W is doing well notwithstanding the issues that she has been confronting. She suffers an eating disorder. There are suggestions of a sometimes tumultuous relationship with her mother. These are the indications from the hospital records pertaining to her. On behalf of the Father, it was suggested that perhaps this suggests another plausible explanation for the breakdown in the relationship between W and her father. It was submitted that to attribute the complexity in this solely to the family violence was to ignore the complexity of things going on in W’s life. But this merely confirms the need for expert psychiatric evidence, rather than suggest that a vulnerable child should be exposed to the potential further emotional strain of spending time with her father.
The Father’s medical records confirm the struggle that he has had with his mental health, particularly depression and anxiety. He was treated with dexamphetamine.
The school records in relation to the other children likewise confirm that they seem to be doing rather well. The Court accepts that this indicates a certain level of resilience on their part but again with respect to the Father and to the case advanced on his behalf, in the case of other evidence it is hardly a reassurance to the Court that it should take a risk with even supervised time. Indeed, some of the school counsellor’s reports merely confirm the emotional distress that the children suffered as a result of having been exposed to family violence in their home.
The documents produced by New South Wales police confirm the family violence incidents, the ADVO’s and the Father’s criminal charges.
The Department of Family and Community Services records again corroborate the children’s exposure to violence but also provides corroborative material in relation to the allegation that the Father provided a dexamphetamine tablet to W at least once.
W’s doctor’s records provide a very disturbing picture of W’s perspective on the violence that she suffered from the father, as well as what she experienced directly of violence perpetrated by her father against her mother. It is true to say and it must be acknowledged, that W is suffering from other issues relating to body image. Again and with great respect to the Father and the case advanced on his behalf, the fact that W has other issues in her life merely confirms her vulnerability and is a reason for not taking a risk in terms of even supervised time with her father.
X’s medical records corroborate the experience of violence that she observed in the home. X has experienced bullying at school but that does not detract in any way from the concerns that are so clearly raised in the evidence before the Court about the psychological risks to her of spending time with her father.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
The legislation is very clear. If there is the need to protect the children from physical or psychological harm, this is a consideration which should receive greater weight than the importance of the children having a meaningful relationship with their father.
The evidence is clear in this case. Even the Father concedes that he does not have a meaningful relationship with the children any more. He even seems to accept that it is his own past actions that have led to this unfortunate situation. The evidence of the risk of psychological harm to the children in this case is quite clear, indeed overwhelming. The objective evidence before the Court suggests that these children are very vulnerable. They are fearful of their father. Their fears seem to be based on the experiences that they had before separation. Some of the fears appear to have been exacerbated by even distant and fleeting contact with their father since separation. The concerns the children have are real and palpable. Z is in a slightly different category because of his young age but the consequences of re-establishing even supervised time with his father are probably just as pernicious and fraught with risk of psychological harm. Why would the Court take a risk with the children having any form of contact and communication with their father? That is not to say that after proper expert evidence is obtained that the Court will not reconsider the situation. There are obvious benefits of the children having an ongoing relationship with their father, but the implementation of this must obviously be carefully managed.
The three older children have expressed clear views against any form of contact or communication with their father. This cannot be ignored.
This is a very clear case and again, one must wonder why, in the circumstances the Father pursued the present application? Even the Child Inclusive Conference Memorandum alone quite apart from the other objective evidence before the Court should surely have cause for reconsideration. Regrettably, this does reflect a focus on the Father’s own rights and his own needs rather than the children’s needs. It suggests an attitude towards the children and towards his responsibilities as a father that needs some sober reflection before the final hearing.
The family violence that has occurred in this case is quite clear and is in any event, admitted by the father. In the circumstances, the presumption of equal shared parental responsibility has been rebutted and there appears little dispute between the parents that the Mother should have sole parental responsibility.
The Independent Children’s Lawyer sought a s.68B injunction. It was not an order sought on behalf of the Mother. There is an existing ADVO in place. In those circumstances, the Court believes that it is actually more effective for the Mother and the children to rely on State law which is far more easily enforced than a s.68B injunction could be. In any event, it is not an order that the Mother sought.
Orders
Pending further order, the Court will order that the Mother has sole parental responsibility for the children, that they live with her and that the children have no contact or communication with their father.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 13 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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