Baldridge & Baldridge
[2021] FCCA 132
•7 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Baldridge & Baldridge [2021] FCCA 132
File number(s): MLC 7058 of 2020 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 7 January 2021 Catchwords: FAMILY LAW – Children – best interests of the children – father seeks equal shared parental responsibility and substantial and significant time – where mother has not allowed the father to have any contact with the children since separation some 17 months ago – allegations of extensive family violence perpetrated by the father during the marriage – mother seeks sole parental responsibility and no time with the father – mother contends stress of the prospect of father having contact with the children is detrimental to her health – basis for unacceptable risk of physical and psychological harm – social isolation and neglect of the children in the mother’s care – physical and mental health of mother –mother suffers from Multiple Sclerosis and possible Functional Neurological Disorder – mother’s day-to-day functioning severely impacted – long-term depression and anxiety – acute distress occasioned by prospect of children spending time with the father – where the mother refuses to engage in counselling and caregiving supports – children assuming caregiving responsibilities – parentification of children – return of Section 11F Memorandum – Court guided by recommendations of family consultant – where mother denies the impact of her mental and physical health on the children – where mother’s mental health detrimental to a meaningful relationship with the father – where the court must balance the risk of the mother’s parenting capacity diminishing if the children resume a relationship with the father and the benefit of this relationship to the children – where the father does not pose an unacceptable risk to the children – where the children are at risk of psychological harm and neglect in the care of the Mother – consideration of ss.60CA and 60CC(2)(b) – primary consideration – the benefit of meaningful relationship with both parents – recommendations for incremental increase in time – conservative approach adopted – interim orders made for time with the father each Saturday– paternal grandparents to be in substantial attendance. Legislation: Family Law Act1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 62B, 62G, 64B, 65D, 65DA, 65DAA, 67Z, 68L, 75, 102NA
Federal Circuit Court Rules 2001 (Cth) r 13.04
Family Law (Fees) Regulation 2012 (Cth)
Cases cited: AMS v AIF (1999) 199 CLR 160
Goode v Goode (2006) 36 Fam LR 422
Keane & Keane [2020] FamCA 99
Keane & Keane [2021] FamCAFC 1
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Re Andrew (1996) FLC 92-692
U v U (2002) 211 CLR 238
Waterford & Waterford
Number of paragraphs: 84 Date of last submission/s: 7 January 2021 Date of hearing: 7 January 2021 Place: Melbourne Counsel for the Applicant: Ms Goldthorp Solicitor for the Applicant: Pearsons Lawyers Counsel for the Respondent: Ms Dunlop Solicitor for the Respondent: Victoria Legal Aid ORDERS
MLC 7058 of 2020 BETWEEN: MR BALDRIDGE
Applicant
AND: MS BALDRIDGE
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
7 JANUARY 2021
THE COURT ORDERS THAT:
1.The matter be adjourned to the Federal Circuit Court of Australia on 5 February 2021 at 10:00 am for Interim Defended Hearing.
2.The matter be listed for final hearing in the Federal Circuit Court of Australia on a date to be fixed, with an estimated hearing time of 3 days (Final Hearing).
3.In the event of any applicable filing, setting down, mediation or enforcement fee or fees (Fees) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth), that time being no later than 28 days prior to the Final Hearing.
4.Pursuant to s.68L(2) of the Family Law Act1975 (Cth) the children X born in 2010 and Y born in 2014 (collectively, Children) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.
5.The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the Court) AND:
(a)The Applicant electronically file and serve any further affidavits to be relied upon by the Applicant at the Final Hearing not later than 21 days prior to the trial;
(b)The Respondent electronically file and serve any further affidavits to be relied upon by the Respondent at the Final Hearing not later than 14 days prior to the trial;
(c)The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by them at the Final Hearing not later than 7 days prior to the trial;
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless the party has first obtained leave of the Court.
6.Each party provide to the Court at the commencement of the Final Hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the Final Hearing.
7.Each party must have available for their witnesses copies of all affidavits and of all the documents those witnesses shall be referring to at the Final Hearing.
8.Not later than 4:00 pm two business days prior to the Final Hearing all parties electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60CC factors);
(e)a list of contentions relevant to the operation of s.65DAA;
(f)a list of any other contentions relevant to the decision;
(g)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(h)main contentions on disputes as to:
(i)inclusion of items in the pool; and
(ii)the value of items where the value is in dispute;
(i)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(j)list of other factors relied upon (s.75(2) factors) and percentage adjustment contended for;
(k)other contentions relevant to determining a ‘just and equitable’ division of property; and
(l)the actual orders sought.
9.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
10.By 4:00 pm on 8 January 2021, the paternal grandparents, Mr B and Ms C (paternal grandparents), file and serve undertakings that they will be in substantial attendance with the Applicant Father (Father) when the Father spends time with the Children pursuant to these Orders.
11.The Children spend time and communicate with the Father each Saturday from 10:00 am until 5:00 pm with the paternal grandparents, or either of them, to be in substantial attendance.
12.Changeover occur in the carpark of the McDonalds in Suburb D, or such other place as agreed between the parties, with the Respondent Mother to be at liberty to send an agent to effect changeover on her behalf.
13.Written reasons for the Interim Decision be reserved.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Baldridge & Baldridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
Introduction
These are Reasons for Judgment for Interim Parenting Orders made on 7 January 2021 in relation to the children X (X) born in 2010, aged 10 and Y born in 2014 (Y), aged 6 (collectively, the Children). The Applicant Mr Baldridge is the Father of the Children (Father) and the Respondent Ms Baldridge is the Mother of the Children (Mother).
The parties separated in early August 2019 when the Mother left the former matrimonial home in Suburb D with the Children and went to live with her parents. The separation of the parties was precipitated by the Mother’s diagnosis of multiple sclerosis in late 2020.[1] The Mother makes allegations against the Father of extensive family violence during the relationship. The Mother has not allowed the Father to have any contact with the Children since separation. By reason of the allegations that the Mother made in relation to family violence perpetrated by the Father, the Mother contends that Father poses an unacceptable risk to the Children. The Mother also contends that the stress of the prospect of the Father having any contact with the Children is detrimental to her health and that accordingly the Court should make orders that she have sole parental responsibility for the Children, that the Children live with her and that the Children spend no time with the Father.
[1] Affidavit of the Mother dated and filed 18.8.20 (Mother’s 18 August 2020 Affidavit).
The Mother lives with the Children in rental accommodation at an undisclosed location. A Child Inclusive Conference Memorandum, dated 30 December 2020, based upon interviews conducted with the parties and the Children on 22 December 2020 (Child Inclusive Conference Memorandum), indicates that the Children are experiencing social isolation and neglect in the care of the Mother due to her poor physical and mental health.
Issues to be Determined
The interim issues for determination at the hearing on 7 January 2021 were whether the Children should spend any time with the Father pending the next hearing on 5 February 2021 and if so, whether that time should be supervised by the paternal grandparents.
Synopsis
I determined that:
(a)The Children spend time and communicate with the Father each Saturday from 10:00 am until 5:00 pm and that the paternal grandparents Mr B or Ms C (Paternal Grandparents) or either of them be in substantial attendance.
(b)By 4:00 pm on 8 January 2021 the Paternal Grandparents file and serve undertakings that they will be in substantial attendance with the Father when the Father spends time with the Children.
(c)Changeover occur in the carpark of the McDonalds in Suburb D or such other place as agreed between the parties, with the Mother to be at liberty to send an agent to effect changeover on her behalf.
Background
The Father was born in Australia in 1975 and is 45 years of age. The Father works full time as a supervisor, earning an income of approximately $100,000 a year. The Father is in good health.[2] The Mother was born in Australia in 1978 and is 42 years of age.[3]
[2] Affidavit of the Father, filed and sworn 2.7.20 (Father’s 2 July 2020 Affidavit), at [4].
[3] Initiating Application at pg. 2.
The parties married in 2008 and separated on a final basis in early August 2019, after a relationship of some 11 years.[4] The Mother has suffered from an extensive number of health issues, including depression, brain lesions, a diagnosis of Relapsing Remitting Multiple Sclerosis in early August 2019 and a recent conditional diagnosis of functional neurological disorder in 2020.[5] The Mother is not presently in employment.
[4] Mother’s 18 August 2020 Affidavit, at [10].
[5] Affidavit of the Mother, filed and dated 16.12.20 (Mother’s 16 December 2020 Affidavit), at [43]-[63] and Annexure “-2”.
After separation in early August 2019 the Mother left the former matrimonial home in Suburb D (Suburb D Property) with the Children. After the Mother left the Suburb D Property with the Children the Father was not able to locate the Mother and the Children and his attempts to contact the Mother via her family members were fruitless.[6] At the time that the Father commenced this proceeding he had not had any contact with the Mother or the Children since the Mother left the Suburb D Property in August 2019, some eleven months earlier.
[6] Father’s 2 July 2020 Affidavit, at [13]-[19].
Procedural History
The Father commenced this proceeding by filing an Initiating Application on 2 July 2020 (sealed on 3 July 2020) (Initiating Application) seeking interim and final parenting and property orders. In the Initiating Application the Father seeks interim parenting orders that may be relevantly summarised as follows:
(a)The parties have equal shared parental responsibility for the Children.
(b)Pursuant to s.11F of the Family Law Act 1975 (Cth) (Act) the parties and the Children attend a Child Inclusive Dispute Conference with a Family Consultant nominated by the Director of Child Dispute Services to discuss the welfare of the Children.
(c)The parties attend upon a Family Consultant to be appointed by the Court for the purpose of the preparation and release of a family report.
(d)The Mother immediately provide details to the Father of all medical practitioners, therapists and other health practitioners that she has attended upon.
(e)The Children live with the Mother.
(f)The Children spend time and communicate with the Father:
(i)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday;
(ii)In the alternate week on an overnight to be agreed between the parties, from the conclusion of school until the commencement of school the following day;
(iii)At specified times on each of the children’s birthdays, the Father’s birthday, Father’s Day, at Easter and over the Christmas period;
(iv)For half of the school term holidays and the long summer holidays; and
(v)Such further and other times as agreed between the parties in writing from time to time.
In the Initiating Application the Father seeks final parenting orders in accordance with sub-paragraphs (a), (e) and (f) of the preceding paragraph. The Father also sought an abridgment of time in the Initiating Application and that the proceeding be listed urgently. The Initiating Application and the Father’s supporting documents were filed by the Father’s solicitors under cover of a letter to the Registrar, dated 2 July 2020 requesting an abridgment of time. The application for an abridgment of time was not granted and the first return date for the matter was listed in the Duty List on 16 September 2020.
On 2 July 2020 the Father filed an affidavit (Father’s 2 July 2020 Affidavit),[7] and a Section 60I Certificate that indicated that the Father had not attended family dispute resolution because the Mother had failed or refused to attend. The Father also filed a Financial Statement on 2 July 2020 (Father’s Financial Statement) and a Notice of Risk on 2 July 2020 (sealed on 3 July 2020) (Father’s Notice of Risk).
[7] Father’s 2 July 2020 Affidavit.
On 18 August 2020 the Mother filed a Notice of Address for Service indicating that she was represented by Victoria Legal Aid. On 18 August 2020 the Mother also filed a Response to the Initiating Application (Response) seeking interim and final parenting and property orders. In the Response the Mother sought interim parenting orders that may be relevantly summarised as follows:
(a)The Children live with the Mother.
(b)The parties forthwith sign all documents and do all things required to make an application for supervised time at a children’s contact service to be agreed upon by the parties.
(c)Subject to the availability of the contact centre to facilitate time between the Father and the Children, the Children spend time with the Father once a month and any costs associated with the use of the contact centre to be paid by the Father.
(d)Supervised time not to occur prior to the following occurring:
(i)The Father enrolling in and completing a men’s behaviour change program, with evidence of completion of the program being provided to the Mother’s lawyers;
(ii)The Father to attend upon an independent psychologist for the purpose of a psychological assessment and report, with the Father to pay the costs of the report and with the report to be placed on affidavit with the Court as soon as practicable upon its completion;
(iii)The Father to enrol in Drug and Alcohol counselling with evidence of his enrolment to be provided to the Mother’s lawyers;
(iv)The Father to complete carbohydrate-deficient transferrin (CDT) testing through Melbourne Pathology or another appropriately accredited pathologist and provide the results to the Mother’s lawyers.
(e)Pursuant to s.62G(2) of the Act the parties and the Children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Court for the purposes of the preparation of a Family Report.
In the Response the Mother seeks to particularise the final parenting orders after the preparation and release of a Family Report, but otherwise seeks orders that:
(a)The Children live with the Mother.
(b)The Mother have sole parental responsibility for the Children.
On 18 August 2020 the Mother filed an affidavit (Mother’s 18 August 2020 Affidavit).[8] The Mother’s 18 August 2020 Affidavit was signed by the Mother’s solicitor but not signed by the Mother due to the COVID-19 restrictions and was filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2). On 18 August 2020 the Mother also filed a Financial Statement (Mother’s Financial Statement) and a Notice of Risk (Mother’s Notice of Risk).
[8] Mother’s 18 August 2020 Affidavit.
On 9 September 2020 the Court received from the Department of Health and Human Services (DHHS) a Section 67Z Response in response to the Mother’s Notice of Risk (First Section 67Z Response). On 9 September 2020 I made Orders in Chambers in relation to the inspection of documents produced by DHHS in response to the Father’s Notice of Risk.
The Father filed his second affidavit in this proceeding on 10 September 2020, which was filed in accordance with Joint Practice Direction 2 (Father’s 10 September 2020 Affidavit).[9]
[9] Affidavit of the Father dated and filed 10.9.20 (Father’s 10 September 2020 Affidavit).
This proceeding first came before the Court in the Duty List on 16 September 2020 (16 September 2020 Hearing). Each of the parties were represented by Counsel and the matter proceeded by Microsoft Teams video conference. Orders were made by the Court which may be relevantly summarised as follows:
(a)The matter was adjourned to 7 January 2020 for Mention.
(b)The parties were ordered to attend a Conciliation Conference with a Registrar by Microsoft Teams video conference on 7 December 2020 at 9.15 am (Conciliation Conference) and directions were made in relation to the Conciliation Conference.
(c)Pursuant to s.11F of the Act the parties and the Children were ordered to attend upon a Family Consultant of the Court for the purposes of a Child Inclusive Conference by Microsoft Teams video conference on 23 December 2020, with the Family Consultant to provide a written Memorandum to the Court and the parties by 30 December 2020.
Interim Orders were made by consent that the Children live with the Mother. Consent Orders were also made in relation to discovery and other matters relating to the property proceedings.
On 15 December 2020 a Registrar made Final Property Orders by Consent in Chambers pursuant to r.13.04 of the Federal Circuit Court Rules 2001 (Cth) (Final Property Orders). The Final Property Orders provide that the Mother is to pay the sum of $50,000 to the Father within 120 days, whereupon the Father is to transfer his interest in the Suburb D Property to the Mother. In the event that the Mother does not make the payment of $50,000 within the required time, the Father will pay the Mother $237,000 within 90 days. The Mother will then transfer her interest in the Suburb D Property to the Father. In the event that the Father fails to pay the whole of the sum of $237,000 to the Mother within the required time, the Suburb D Property is to be sold.
On 16 December 2020 the Mother filed an Amended Response to the Initiating Application (Amended Response). In the Amended Response the Mother amended the interim orders that she seeks. The only interim order that the Mother seeks is that the Children live with the Mother. The final orders that the Mother seeks in the Amended Response are that the Children live with the Mother, that the Mother have sole parental responsibility for the Children and that the Father’s time with the Children be reserved. The Mother filed her second affidavit in this proceeding on 16 December 2020,[10] which was filed pursuant to Joint Practice Direction 2 (Mother’s 16 December 2020 Affidavit).
[10] Mother’s 16 December 2020 Affidavit.
On 22 December 2020 the parties and the Children attended a Child Inclusive Conference with Family Consultant E, which was conducted via Microsoft Teams video conferencing.
On 29 December 2020 the Court received from DHHS a Section 67Z Response in response a report received on 22 December 2020 in relation to the safety and wellbeing of the Children in the care of the Mother (Second Section 67Z Response).
The Child Inclusive Conference Memorandum was sent to the solicitors for the parties by the Court on 30 December 2020.
The matter next came before the Court on 7 January 2020 for Mention. Each of the parties were represented by Counsel and the matter proceeded by Microsoft Teams video conference. Prior to the date of the Mention the Mother’s solicitor had sought leave of the Court for the Mother not to be present on Microsoft Teams during the hearing on video conference. This application was made on the basis that the Mother may exacerbate her various medical conditions due to the stress of listening to the proceedings. I granted the Mother leave to not be present during the Microsoft Teams video conference Mention, on the condition that the Mother would be available to provide instructions at all times to her lawyers. At the hearing of the Mention, Counsel for the Mother confirmed that the Mother was available to provide her instructions.[11]
[11] Transcript P2:L14-16.
After hearing submissions on 7 January 2021 I made the Orders which were published that day. After the delivery of my Orders, Counsel for the Mother requested that I provide reasons for decision either oral or written. On 7 January 2021 I Ordered that my written reasons for the Interim Decision be reserved. These are my Reasons for Judgment for the hearing on 7 January 2021 (7 January 2021 Hearing).
PROPOSALS OF THE PARTIES
Father’s Proposal
The Father’s proposed interim orders were contained in a Minute of Proposed Orders, emailed to my Associates prior to the commencement of the 7 January 2021 Hearing by the Father’s Counsel (Father’s Minute of Proposed Orders).[12] The Father’s Minute of Proposed Orders provided as follows (Father’s Proposal):
[12] Email from Counsel for the Father to Associate Judge Kirton 7.1.2021 at 9:23 am.
(a)The parties have equal shared parental responsibility of the Children.
(b)The Children live with the Mother.
(c)The Children continue to attend at F School.
(d)The Mother ensure that the Children attend school each day unless they are excused from attending as a result of government COVID-19 Guidelines or a medical certificate for either of the Children.
(e)The Children spend time and communicate with the Father as follows:
(i)From 9 January 2021 each Saturday from 10:00 am to 5:00 pm for a period of 4 weeks, with the paternal grandparents to be in substantial attendance;
(ii)From 6 February 2021 each Saturday from 10:00 am to 5:00 pm for a period of 4 weeks, without the necessity of the paternal grandparents being in substantial attendance;
(iii)From 6 March 2021 from 5:00 pm Friday until 5:00 pm Saturday each week for a period of 4 weeks;
(iv)From 2 April 2021 until 29 April 2021:
(A)In week 1 from 5:00 pm Friday until 5:00 pm Sunday; and
(B)In Week 2 from 5:00 pm until 8:00 pm Wednesday.
(v)From 30 April 2021 and continuing until further order:
(A)In Week 1 from 5:00 pm Friday until commencement of school Monday; and
(B)In Week 2 from 5:00 pm Wednesday until commencement of school Thursday.
(f)On each of the Children’s birthdays from the conclusion of school until 8:00 pm if such birthday falls on a school day and from 12.00 pm to 8.00 pm if such birthday falls on a weekend.
(g)On the Father’s birthday from the conclusion of school until 8.00 pm if such birthday falls on a school day and from 12.00 pm to 8.00 pm if such birthday falls on a weekend.
(h)On Father’s Day from 5:00 pm the Saturday prior to Father’s Day until the commencement of school Monday.
(i)For Easter as follows:
(i)In even numbered years from conclusion of school Thursday until 8.00 pm Easter Saturday;
(ii)In odd numbered years from 8.00 pm Easter Saturday until 9.00 am Easter Tuesday.
(j)For Christmas as follows:
(i)In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day; and
(ii)In odd numbered years from 3.00 pm Christmas Day until 3.00 pm Boxing Day.
(k)For the school term holidays as agreed and failing agreement, as follows:
(i)Term 1, from conclusion of school on the last day of term until 8:00 pm Tuesday;
(ii)Term 2, from conclusion of school on the last day of term until 8:00 pm Thursday;
(iii)Term 3, from conclusion of school on the last day of term until 8:00 pm the middle Saturday of such term holidays.
(l)For one half of the long summer school holidays at times agreed and failing agreement:
(i)In even numbered years to commence from 4.00 pm Boxing Day; and
(ii)In odd numbered years to commence from 1 January at 9.00 am.
(m)Such further and other times as agreed between the parties in writing from time to time.
(n)Changeover to occur in the carpark of the McDonalds in Suburb D with the Mother to be at liberty to send an agent to effect changeover on her behalf.
(o)The Mother to provide details to the Father’s solicitors of her general medical practitioner, psychologist and any other health or allied health specialist that she attends upon.
(p)The Mother to obtain a report from her treating neuropsychologist detailing the impact of her diagnosis of functional neurological disorder, with such report to be filed and served by 31 March 2021.
(q)The Mother attend upon a psychologist to be agreed between the parties, for the purposes of a psychological report and to arrange for such report to be filed and served by 31 March 2021.
(r)That Father attend upon either Mensline or Family Advocacy and Support Service to ascertain the most appropriate service to address the allegations of family violence.
(s)The parties attend a Parenting Orders Program, with G Counsellors, or similar accredited organisation.
(t)The parties arrange for X to engage in counselling support, at their equal shared expense, to understand the Mother’s illness.
(u)The parties arrange for paediatric assessment of both the Children, at their equal shared expense, and both parties be at liberty to attend such appointments and receive reports of such assessments.
(v)An Independent Children’s Lawyer (ICL) be appointed.
(w)The Child Inclusive Conference Memorandum be provided to all professionals supporting the parties and the Children.
(x)Such further or other orders as the Court considered appropriate.
Documents Relied on by the Father
At the time of the 7 January 2021 Hearing I had before me the following documents which the Father relied on:
(a)The Initiating Application.
(b)The Father’s 2 July 2020 Affidavit.
(c)The Father’s Financial Statement.
(d)The Father’s Notice of Risk.
(e)The Father’s 10 September 2020 Affidavit.
(f)The Father’s Minute of Proposed Orders.
Mother’s Proposal
The Mother’s proposed orders were contained in a Minute of Proposed Orders emailed to my Associates by Counsel for the Mother shortly prior to midday on 7 January 2021 (Mother’s Minute of Proposed Orders).[13] The Mother’s proposed interim orders were as follows (Mother’s Proposal):
[13] Email from Counsel for the Mother to Associate Judge Kirton 7.1.2021 received 11:36 am.
(a)Within seven days the parties do all such things and sign all documents necessary to make contact with G Counsellors Victoria (Suburb H) by telephone on ..., and participate in the intake process for the purpose of attending and participating in the Parenting Orders Program at G Counsellors.
(b)The Father enrol in and complete a men’s behaviour change program or other appropriate service as recommended by Mensline or the Family Advocacy and Support Service and provide proof of enrolment and completion to the Mother’s lawyers.
(c)The Father complete a drug and alcohol intake assessment, engage in counselling if recommended through that assessment and provide proof of same to the Mother’s lawyers.
(d)The Mother continue to engage with family violence support services through J Counsellors and other community services she may be referred to by J Counsellors.
(e)The Mother attend upon Dr K for the purpose of an independent neuropsychological assessment at such date and time as directed by Dr K.
(f)Upon completion and release of the neurological assessment by Dr K, referred to in sub-paragraph (e), the Mother and the Father attend upon Dr L for the purpose of independent psychological assessments and reports at such date and times as directed by the psychologist, with the Mother to provide a copy of the neurological assessments of Dr K to Dr L.
(g)The Mother and the Father as relevant, within 7 days of being notified of the details of the assessment appointments referred to in sub-paragraphs (e) and (f) be given leave to provide the following documents to the report writers:
(i)The Initiating Application and Amended Response;
(ii)All affidavit material they have filed;
(iii)The Father’s Notice of Risk and the Mother’s Notice of Risk.
(h)The Mother to provide copies of her Region M Health records to Dr K.
(i)For the purpose of the assessments and reports to be prepared by Dr K and Dr L Victoria Legal be requested to provide funding to the Mother to pay for the costs of the reports.
(j)The Father to pay for the psychological report to be prepared by Dr L.
(k)The Mother ensure that the Children complete full paediatric reviews with Dr N (also known as Dr N) at O Health Care in Suburb D and upon doing so provide a report to the Father’s lawyers.
(l)The Mother make enquiries regarding the availability and appropriateness of counselling with J Counsellors and the Children’s paediatrician and follow all reasonable and lawful directions by those services with respect to the Children participating in counselling.
(m)The parties ensure that all the services or the professionals they engage with pursuant to these orders are provided with copies of:
(i)All parenting Orders made in these proceedings.
(ii)The Child Inclusive Conference Memorandum;
(iii)The First Section 67Z Response and the Second Section 67Z Response.
Documents Relied on by the Mother
At the time of the 7 January 2021 Hearing I had before me the following documents which the Mother relied on:
(a)The Amended Response.
(b)The Mother’s 18 August 2020 Affidavit.
(c)The Mother’s Financial Statement.
(d)The Mother’s Notice of Risk.
(e)The Mother’s 16 December 2020 Affidavit.
(f)The Mother’s Minute of Proposed Orders.
RELEVANT LEGAL PRINCIPLES
Best Interests: Objects, Principles and Considerations
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means is individual cases are determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) of the Act and assist in clarifying what Part VII aims to achieve, 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.
The principles underlying those objects are outlined in s.60B(2) of the Act. They are that unless it would be contrary to the best interests of a child:
(a) children have the right to know and be cared for by both their parents, regardless of whether the 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).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[14] and U v U[15]).
[14] (1999) 199 CLR 160.
[15] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A). The effect of s.60CC(2A) is that the Court must give greater weight to the need to protect children from physical or psychological harm and from being exposed to abuse, neglect or family violence. Family violence is defined in s.4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s.4AB(2) provides, including an assault, a sexual assault or other sexually abusive behaviour, unreasonably denying a family member financial autonomy, intentionally damaging or destroying property and preventing a family member from making or keeping connections with his or her family, friends or culture. Otherwise there is no requirement for the primary and additional considerations to be considered in a particular order.
The Full Court in Goode v Goode[16] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings.[17] It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[18]
[16] (2006) 36 Fam LR 422.
[17] Ibid 445, at [81]-[82].
[18] Ibid 445, at [82].
In Marvel v Marvel[19] the Full Court made the following obiter comments:
[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 […][20]
[19] (2010) 43 Fam LR 348.
[20] Ibid, at [120].
In Keats & Keats[21] the Full Court held in respect of interim proceedings:
[9] […] 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.[22]
[21] [2016] FamCAFC 156.
[22] Ibid, at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford,[23] Mazorski & Albright[24] and McCall & Clark.[25]
[23] [2013] FamCA 33.
[24] (2007) 37 Fam LR 518.
[25] (2009) FLC 93-405.
In the Child Inclusive Conference Memorandum the Family Consultant reported:
30.In relation to spend time, X had no objections to spending time with her father and did not indicate any worries except for possible arguments between the parents were they to have contact with each other. X reported that if another party transported the children to and from spend time that she would not be worried about the arguments any more as “mum wouldn’t be there to make the arguments”.
31.X stated she misses her father and enjoyed doing activities with him such as football and other outdoor activities.
[…]
34.Y […] showed the writer 3 small bruises on his right upper arm which he claimed his father gave him when he dressed the children in pyjamas. It is unclear how the bruise occurred as both [the Mother] and X advised the writer that the children have not seen their father since August 2019.
35.Y also reported enjoying outdoor activities and sport with his father. He also stated that his father is mean and recalled a story during which his mother had a “meltdown” and his father recorded the incident and sent the video to his nanna.
In the Child Inclusive Conference Memorandum the Family Consultant reported:
23.[The Mother] became acutely distressed with regards to any discussions with regards to the family violence allegations and discussions regarding spend time for the children with [the Father]. [The Mother] stated she was willing to support the children to have a relationship with their father but was unable to make any suggestions or proposals with regard to the implementation of spend time.
The Mother’s Proposal made no proposal for the Father to spend any face to face time with the Children or to otherwise communicate with the Children.
In the Child Inclusive Conference Memorandum the Family Consultant recommended that, subject to the Court’s findings on the Mother’s allegations of family violence, that the Court consider the Father spending time with the Children incrementally, with initial day time being supervised by the paternal grandparents.[26] The Father’s Proposal incorporated this recommendation.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[26] Child Inclusive Conference Memorandum, at [41].
The Child Inclusive Conference Memorandum raised significant issues of concern about the welfare of the Children in the care of the Mother. Some of these issues were already apparent from the Mother’s 16 December 2020 Affidavit where the Mother deposed that:
(a)Her health condition causes “brain fog”, in that she struggles with short term memory and that sometimes she has difficulty speaking so that she slurs, stutters or forgets words. On 20 November 2020 a neuropsychologist informed the Mother that he believed that she had Functional Neurological Disorder on top of Multiple Sclerosis.[27]
(b)The stress of preparing for the Conciliation Conference and providing instructions for the Mother’s 16 December 2020 Affidavit caused the Mother to become so unwell that she had been experiencing ‘leg weakness, loss of movement and increased pain, including debilitating shoulder and arm pain’ and that she could barely lift her arm for ‘simple daily tasks such as dressing’.[28]
(c)The Children continued online education after the COVID-19 restrictions were lifted and they did not return to the classroom due to the Mother ‘continuing to be in a high-risk category’.[29]
[27] Mother’s 16 December 2020 Affidavit, at [7] and [58]-[63].
[28] Mother’s 16 December 2020 Affidavit, at [57].
[29] Mother’s 16 December 2020 Affidavit, at [79].
In the Child Inclusive Conference Memorandum the Family Consultant reported the following under the heading Child Safety and Wellbeing:
10.Child Protection provided a 67Z response on 9 September 2020 which indicated there had been no reports made regarding the children’s well-being. Further follow up with Child Protection on 22 December 2020 indicated there had been 2 additional reports received in relation to the children’s lack of attendance at school due to [the Mother’s] physical health difficulties and [the Mother’s] fear that [the Father] would attempt to collect the children if they attended school. The cases were closed at intake phase following a referral to the J Counsellors. Child Protection noted that the referral for the family to the J Counsellors has not been allocated.
11.The children reported that they had missed significant opportunities to engage in education and maintain friendships since the Covid 19 restrictions have lifted and they are able to return to school and extracurricular activities. Further X reported she is supporting her mother with adult tasks such as cooking and laundry.
12.[The Mother] reported few family supports nearby, noting that her parents are approximately an hour away. [The Mother] and the children were unable to inform the writer of any safety plan they could enact should their mother become unwell and required urgent medical assistance.
(Emphasis added)
In the Child Inclusive Conference Memorandum the Family Consultant reported the following under the heading Issues for the Children:
36.The children have not attended school in person since Covid 19 restrictions have eased in the state and they have also not had the opportunity to engage in extracurricular activities. [The Mother] reported that she was considering changing the children’s school enrolment. [The Mother] appears to have no clear plan with regards to the children reengaging with an education program stating that the children’s return to school is dependent on the “Covid 19 situation”. [The Mother] noted concerns for her physical health should the children attend school and cited concerns [the Father] would remove the children from school they attended. The children’s sleep routine may also be impacting the children’s ability to engage in a normal school routine.
37.X reported feeling obliged to support her mother with the day to day household chores and she advised that she cooks dinner most evenings and does the laundry for the household. X stated her mother doesn’t ask her to do this but she completes the tasks due to her mother’s poor health. [The Mother] state[s] she is opposed to engaging supports in the home to assist her with day to day functioning. Child protection provided a referral to the J Counsellors [in] November 2020 however it is unclear if this referral has been actioned.
38.[The Mother] reports significant health [issues] and it is noted she may also be experiencing possible mental health concerns. It is unclear how this is impacting the children, however X reported feeling worried and scared about her mother’s health. [The Mother] reported having poor relationships with her extended family and relies primarily on the maternal grandparents who reside an hour away. [The Mother] stated she could get support from her landlord who lives nearby if she had a medical emergency. It is unclear if there is a safety plan in place to manage this risk.
[…]
(Emphasis added)
In the Child Inclusive Conference Memorandum the Family Consultant reported the following in relation to the Mother’s mental health.
18.[The Mother] stated she was diagnosed with depression approximately 10 years ago and she is prescribed Valdoxan for treatment but does not engage in counselling support as she does not find it helpful. [The Mother] stated her mental health is managed by her GP.
19.During the interview [the Mother] was observed to be visibly distressed and cried uncontrollably throughout the interview. [The Mother] stated she [...] only becomes distressed when she discusses court matters and denies the children are exposed to this. [The Mother] denied allegations of hoarding behaviour. [The Mother] was unclear with regards to how her physical and mental health conditions may impact her daily functioning.
(Emphasis added)
There is therefore evidence before the Court that the Children are at risk of psychological harm and neglect in the care of the Mother.
The Mother makes allegations of serious family violence perpetrated by the Father and alcohol abuse during the relationship. The Father contests the history of family violence and alcohol abuse recounted by the Mother. I otherwise refer to the discussion in relation to ss.60CC(3)(f), (j) and (k).
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant for this interim Judgment.
Section 60CC(3)(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;
The Children are enrolled at F School. In 2020 X was in Grade 4 and Y in Grade 1. The Mother has home schooled the Children since the first closure of the schools in Melbourne due to the pandemic and all their extra-curricular activities were also cancelled.[30]
[30] Mother’s 18 August 2020 Affidavit, at [89]-[91].
In the Child Inclusive Conference Memorandum the Family Consultant reported in relation to X:
26.X is a well-spoken and thoughtful child who was able to clearly respond to the writer’s questions. X advised that her mother frequently gets upset about “what dad is doing” and advised that this occurs when her mother “reads court papers”. X stated that the reason the court was involved with her family was due to her father wanting the children in his care.
27.According to X, she and Y have not returned to school this year due to Covid 19 restrictions and due to her mother’s poor health. During remote learning X advised that the children would frequently be late for school but that they would not get in trouble for not completing their work as their mother would help them to finish their learning tasks later in the day. X stated that the previous day they woke up at 2pm and that this is a frequent occurrence. X stated she doesn’t know what time she goes to bed each night as she doesn’t check the clock before bedtime.
28.X stated she does a lot to help her mum around the house and that she decided to help her as she was worried about her mother’s health and the impact it had on her ability to do things such as cook and clean. X stated she cooks almost every night and that she is allowed to use the stove but not the oven.
29.X believes her mother “puts everyone else before her own needs” and thinks her mother would benefit from some support around the home. X stated her mother’s health makes her worried and scared. She reported that she doesn’t know what would happen if her mother became unwell and this causes her to worry sometimes.
[…]
32.X reports having very few adults to support her with her worries, noting her mother, her maternal grandmother and her previous teacher Ms P. [The Mother] advised that Ms P is a welfare officer at the children’s school and prior to Covid-19 restrictions, X had regular 30 minute “catch-ups” with Ms P. X advised Ms P used to invite X to her office after school and she would ask her about how her mum was going. Both X and [the Mother] advised that X has not had the opportunity to see Ms P recently due to not attending school this year.
(Emphasis added)
I otherwise refer to and repeat the matters discussed in relation to s.60CC(2)(a). At the age of 10 X is too young to decide what is in her best interests. I have however placed weight upon X expressing the view that she missed her Father and enjoyed participating in activities with him. The other matters that X reported to the Family Consultant are significant and concerning and have been taken into account in relation to s.60CC(2)(b).
In the Child Inclusive Conference Memorandum the Family Consultant noted that Y has a speech impediment and that it was very challenging to understand him via video conferencing.[31] At the age of 6 Y is too young to decide what is in his best interests. In relation to the matters discussed in relation to s.60CC(2)(a) in relation to Y, I place weight upon Y telling the Family Consultant that he enjoyed outdoor activities and sport with the Father. As Y had not seen his Father since August 2019 at the time of interview, a period of some 16 months and as he is only 6 years old, I do not place any weight on the other matters which are referred to in paragraphs [34] and [35] of the Child Inclusive Conference Memorandum.
Section 60CC(3)(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);
Each of the child's parents
[31] Child Inclusive Conference Memorandum, at [33].
I refer to the discussion in relation to ss.60CC(2)(a) and 60CC(3)(a).
Other persons (including any grandparent or other relative of the child)
The Orders made on 7 January 2021 provide that the Paternal Grandparents be in substantial attendance when the Children spend time with the Father. At the 7 January 2021 Hearing, Counsel for the Mother objected to the Paternal Grandparents being in substantial attendance. Counsel for the Mother submitted that the Mother had “issues” with the Paternal Grandparents.[32] At the time of the 7 January 2021 Hearing there was no affidavit evidence by the Mother deposing to any significant “issues” between the Mother and the Paternal Grandparents. The Mother’s 16 December 2020 Affidavit is over 80 paragraphs long. In that affidavit the Paternal Grandparents are only mentioned in paragraph 10, which refers to an incident nine years ago. Paragraph 28 refers to an incident occurring on 13 October 2017. The Mother’s evidence in paragraph 28 does not identify who provided the information to the Mother and implies that one or either of the Children provided the information to the Mother. X would have been 6 and Y 3 at the time of this incident. I do not find the allegation in paragraph 28 persuasive in supporting an argument that the Paternal Grandparents should not be in substantial attendance when the Children spend time with the Father.
[32] Transcript P11:L31-34.
Section 60CC(3)(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;
Participation in making decisions about major long-term issues in relation to the child
The Father in the Initiating Application seeks interim and final orders that the parties have equal share parental responsibility for the Children.
In the Amended Response the Mother seeks final orders that she have sole parental responsibility for the Children. In the Child Inclusive Conference Memorandum it was reported by the Family Consultant that the Mother was considering changing the Children’s school enrolment.[33] There was no indication that the Mother intended to consult the Father prior to making such a decision. At the 7 January 2021 Hearing Counsel for the Mother confirmed that the Mother understood that if she wanted to change the Children’s school enrolment she would need to make an application to the Court.[34]
Opportunity to spend time and communicate with the child
[33] Child Inclusive Conference Memorandum, at [36].
[34] Transcript P8:L6-7.
Since separation and the commencement of this proceeding the Father has sought to spend time and communicate with the Children and has attempted to communicate with the Mother and members of her family. The Mother has avoided contact with the Father. At the time of the 7 January 2021 Hearing the Children had not spent time with the Father since August 2019, some 17 months, having been precluded by the Mother from spending time or communicating in any manner with the Father.
Section 60CC(3)(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;
The Father deposed that he obtained a child support assessment that estimated that he would have to pay approximately $513 a fortnight to the Mother for child support and that he arranged for the sum of $550 a fortnight to be deposited in the parties’ joint account for the Mother to use as child support.[35] In the Father’s Financial Statement the Father deposed that he pays $275 a week child support for the Children.[36]
[35] Father’s 2 July 2020 Affidavit, at [34].
[36] Father’s Financial Statement, at [31].
The Mother’s Financial Statement states that the Mother is not receiving any maintenance or child support.[37]
[37] Mother’s Financial Statement, at [13].
Section 60CC(3)(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;
Either of his or her parents
I refer to the discussion in relation to s.60CC(2)(a). X has expressed the view to the Family Consultant that she missed her Father and enjoyed participating in activities with him. She also had no objections to spending time with her Father, apart from being concerned about possible arguments between her parents. I also refer to the discussion in relation to s.60CC(2)(b). From this discussion I conclude that X is experiencing social isolation, especially since she has been deprived of the opportunity to return to school after the lifting of the COVID-19 restrictions on school attendance and extra-curricular activities in Melbourne. In my view, X is likely to benefit from spending some time away from her home with her Father.
In relation to Y I also refer to the discussion in relation to s.60CC(2)(a). Y has expressed the view to the Family Consultant that he enjoyed outdoor activities and sport with his Father. I also refer to the discussion in relation to s.60CC(2)(b). From this discussion I conclude that Y is also experiencing social isolation, especially since he has been deprived of the opportunity to return to school after the lifting of the COVID-19 restrictions on school attendance and extra-curricular activities in Melbourne. In my view Y is also likely to benefit from spending some time away from his home with his Father.
Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is not a relevant consideration.
Section 60CC(3)(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 the emotional and intellectual needs;
Each of the child’s parents
The Mother
I refer to the discussion in relation to s.60CC(2)(b). The Mother on her own evidence has very significant health problems and is having difficulty providing for the day to day needs of the Children. X has informed the Family Consultant that she cooks dinner most evenings and does the household’s laundry.
The Father alleges that the Mother also suffers difficulties with hoarding and hoarded a large amount of the Children’s toys.[38] The Mother denies this allegation.[39]
The Father
[38] Father’s 10 September 2020 Affidavit, at [10] and Annexure “A”.
[39] Mother’s 16 December 2020 Affidavit, at [64]-[66].
The Mother alleges that the Father is an alcoholic.[40] The Father denies this allegation.[41] At the 7 January 2021 Hearing Counsel for the Father submitted that within a week after the 16 September 2020 Hearing the Father undertook a liver function test, which revealed that the Father was within the normal range.[42] In the Child Inclusive Conference Memorandum the Family Consultant reported:
13. [The Mother] alleges [the Father] consumes alcohol in excess. [The Mother] did not accept the results of [the Father’s] recent liver function test which indicated he has not been consuming alcohol in excess. [The Mother] believes [the Father] had only briefly abstained from alcohol to complete the test.
14.[The Father] denies excessive alcohol consumption and stated that he completed the liver function test for alcohol the day after the last court hearing and that this was based [on] his usual drinking habits which is approximately 3-5 mid-strength beers per night. [The Father] stated that the liver function test did not indicate any concerns with regards to excessive consumption of alcohol.
[40] Mother’s 18 August 2020 Affidavit, at [23].
[41] Father’s 10 September 2020 Affidavit, at [7].
[42] Transcript P5:L4-8.
No recommendations were made in the Child Inclusive Conference Memorandum for the Father to undertake a further liver function test or to participate in drug and alcohol counselling as sought in the Mother’s Proposal.
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
During the relationship the parties adopted traditional roles as parents, with the Father as the primary income earner and the Mother the primary carer of the Children, although the Mother also undertook paid employment during the relationship.[43] The parties otherwise provide widely differing accounts of their behaviour as parents during the relationship.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
[43] Father’s 10 September 2020 Affidavit. at [13].
The Mother makes allegations of serious family violence perpetrated by the Father upon herself and the Children in the Mother’s 18 August 2020 Affidavit at [22] to [29] and the Mother’s 16 December 2020 Affidavit at [7] to [39]. The Mother did not make any report to Victoria Police or any application for a family violence order in relation to any of these allegations.
The Father denies allegations of family violence in the Father’s 10 September 2020 Affidavit at [16]. The Father admits to verbal arguments with the Mother during the breakdown of the relationship but says that both parties contributed to the arguments. The Mother’s Proposal seeks to make the Father’s time with the Children conditional upon the Father first participating in and completing a men’s behaviour change program.
The Child Inclusive Conference Memorandum recommended that the Father may benefit from engaging in support from either Mensline or the Family Advocacy and Support Service to ascertain the most appropriate service to address the allegations of family violence.[44] In my view it is significant that the Family Consultant in the circumstances of this case, did not recommend that the Father’s time with the Children be conditional upon commencing and completing a men’s behavioural change program.
[44] Child Inclusive Conference Memorandum, at [42].
The Father’s Proposal is that the Father attend upon either Mensline or the Family Advocacy and Support Service to ascertain the most appropriate service to address the allegations of family violence. The Father’s proposal is consistent with the Family Consultant’s recommendation in the Child Inclusive Conference Memorandum.
Section 60CC(3)(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;
I refer to and repeat the matters discussed in relation to s.60CC(3)(j).
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
All relevant matters have been referred to in these Reasons for Judgment.
Consideration and Conclusion
In this matter the Mother alleges that the Father poses as an unacceptable risk to the Children and that the stress of the prospect of the Father having contact with the Children would be detrimental to her health and therefore vicariously have a detrimental effect upon the Children. In relation to the Mother’s latter allegation, the Mother appears to be relying upon the Re Andrew principle which was recently reviewed, [45] together with its application in various authorities, by Justice McEvoy in Keane & Keane.[46] Subsequent to the 7 January 2021 Hearing the Full Court of the Family Court dismissed an appeal of Justice McEvoy’s Judgment.[47] The Full Court considered the Re Andrew principle and the approach to be adopted by the Court.[48]
[45] Re Andrew (1996) FLC 92-692.
[46] [2020] FamCA 99, at [82]-[93].
[47] Keane & Keane [2021] FamCAFC 1.
[48] [2021] FamCAFC 1, at [72]-[85].
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel.[49]I have followed the legislative pathway as required by Goode v Goode,[50] to the extent that I have been able, given that this is an interim case and the evidence is untested by cross-examination.
[49] (2010) 43 Fam LR 348, at [120].
[50] (2006) 36 Fam LR 422, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3), to the extent that they are relevant to this interim decision.
I have been required to balance the Mother’s allegations about the Father, with the evidence before the Court in relation to the welfare of the Children in the Mother’s care and the Children’s expressed views that they wanted to see their Father. The evidence before the Court is that the Children in the Mother’s care are experiencing social isolation and neglect. The Children had not seen their Father or had any contact with him for some 17 months at the time the Orders were made on 7 January 2021.
I determine that Interim Orders made on 7 January 2021 are in the best interests the Children as required by s.60CA of the Act.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC Associate:
Dated: 1 February 2021
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