BANSAL & GUMMADI

[2020] FCCA 3204

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANSAL & GUMMADI [2020] FCCA 3204

Catchwords:
FAMILY LAW – Parenting – best interests of children – interim orders made.

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 70NBA(1)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Rice & Asplund (1979) FLC 90-725

Applicant: MR BANSAL

Respondent: MS GUMMADI

File Number: LEC 661 of 2011

Judgment of: Judge Newbrun

Hearing date: 10 July 2020

Date of Last Submission: 22 October 2020

Delivered at: Parramatta

Delivered on: 24 November 2020

REPRESENTATION

Solicitors for the Applicant: Ms Alam as agent

The Respondent appeared in person

ORDERS PENDING FURTHER ORDER

1. The child X born 2012 shall spend supervised time with the Father at a contact centre or supervised contact service in the Brisbane area every two months for two consecutive days as follows:

   (a)Each supervised visit is to be for a duration of two hours;

   (b)Each supervised visit will occur from 11 AM to 1 PM or at such other time as deemed convenient to the above contact centre or supervised contact service;

   (c)Supervised visits will occur on a weekend during school terms and on any two consecutive days in the second half of any school holiday period;

   (d)The Father shall notify the Mother in writing via email, within 14 days, which contact centre or supervised contact service he has engaged;

   (e)The parties, within 14 days thereafter, take all necessary steps to participate in any required intake assessment at the above contact centre or supervised contact service in relation to the above supervised time;

   (f)The Father is to advise the Mother in writing via email no less than 14 days prior to any supervised visit which dates he intends to spend time with the child in accordance with these orders;

   (g)The Father shall pay for all costs associated with the contact centre and/or the supervised contact service;

   (h)The Mother or nominee shall transport the child to the contact centre or supervised changeover location at the commencement of the Father's supervised time and shall collect the child from the contact centre or supervised changeover location at the end of the Father's time with the child.

   (i)The Father to meet the costs of the above supervised time.

2. The Court appoints an Independent Children's Lawyer to represent the children (being X born 2012 and Y born 2010).

3. The Father file and serve, within 21 days, a fresh Initiating Application seeking fresh parenting orders.

4. The Court directs that the requirement for a s 60I certificate to be filed by the Father be waived.

5. The Court directs that any filing fee for the Father’s above Initiating Application be waived.

6. Consideration of any sanction or action against the Mother relating to her Contraventions of the Court’s Orders of 11 February 2016 is adjourned for mention to 25 January 2021 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

LEC 661 of 2011

MR BANSAL

Applicant

And

MS GUMMADI

Respondent

REASONS FOR JUDGMENT

1. The parties to these parenting proceedings have each made applications to vary the Court’s previous parenting Orders of 11 February 2016, pursuant to s70NBA(1) of the Family Law Act, 1975 (Cth) following the Court on 18 October 2019 having found that the Mother had committed certain contraventions of the Court’s Orders of 11 February 2016. The content of these variation applications are of a significant nature when compared with the Orders of 11 February 2016.

2. The subject children are Y born 2010, and X born 2012.

3. The Court’s Orders of 11 February 2016, provide, inter alia, that the child X live with the Mother (in Town A) and that the child Y live with the Father (in Sydney). The Orders provide further that, in the absence of agreement, the Mother would travel with X to the Sydney area every four months over a period of four days to enable the children to spend time with each other and with the parent with whom they were not living; the children would spend time with each other, in the company of both parents from 11am to 1pm on each of those 4 days. There were ancillary Orders and other Orders relating to, for example, Skype calls between the children, and informing the other party about the academic, health and social progress of the child.

4. The Father’s proposed variations to the Court’s orders of 16 February 2016 provide for the Father spending time with X in Town A every two months for two consecutive days, with each occasion of contact being for a duration of two hours between 11 AM and 1 PM. The Father only proposes supervision on two occasions before his time with X becomes unsupervised. Such proposed variation would effectively replace the Orders of 11 February 2016 requiring the Mother to bring the child X down to Sydney every four months to spend time with Y in the company of both parents.

5. The Father further proposes Skype communication between himself and X, which is essentially a fresh proposed order. The Father has submitted that should the Court make this proposed Order then the child Y can participate in this time and communicate with his sister X.

6. As to the Mother’s proposed variations to the Court’s Orders of 11 February 2016, her proposed Minute of Order, although worded unsatisfactorily, confirms to the Court that the Mother intends, through the making of her proposed Minute of Order, that the children spend no time with each other, and each parent spend no time with the child not in their care. It is clear from the Mother’s material and written submissions that she does not propose to facilitate a relationship between the children nor between X and the Father, or between Y and the Mother, at least until the children are much older and have reached their own views in this context. 

7. On 18 September 2020 and on 17 September 2020 the Court sent the following email to the Mother and Father respectively:

   As you are aware, on about 10 July 2020 the Court reserved its decision in relation to the parties’ respective proposed variations to the Court’s Orders of 11 February 2016. The Mother’s proposed variations are set out in her Minute of Order filed 12 February 2020. The Father’s proposed variations are set out in his Minute of Order dated 23 April 2020.

   The Court observes that the parties seek to rely upon certain Affidavit material in support of their above proposed variations to the Court’s Orders of 11 February 2016.

   The Court has a concern that the above material is insufficient to enable it to determine whether the parties’ above proposed variations are in the best interests of the children.

   Accordingly, without determining the parties’ proposed variations at this stage, the Court is considering making interim parenting orders and directions as follows:

   1.  The child X born 2012 shall spend supervised time with the Father at a contact centre or supervised contact service in the Town A area every two months for two consecutive days as follows:

   a) Each supervised visit is to be for a duration of two hours;

   b) Each supervised visit will occur from 11 AM to 1 PM;

   c) Supervised visits will occur on a weekend during school terms and on any two consecutive days in the second half of any school holiday period;

   d) The Father shall notify the Mother in writing via email, within 14 days, which contact centre or supervised contact service he has engaged;

   e) The parties, within 14 days thereafter, take all necessary steps to participate in any required intake assessment at the above contact centre or supervised contact service in relation to the above supervised time;

   f)  The Father is to advise the Mother in writing via email no less than 14 days prior to any supervised visit which dates he intends to spend time with the child in accordance with these orders;

   g) The Father shall pay for all costs associated with the contact centre and/or the supervised contact service;

   h) The Mother or nominee shall transport the child to the contact centre or supervised changeover location at the commencement of the Father's supervised time and shall collect the child from the contact centre or supervised changeover location at the end of the Father's time with the child.

   i)  The Father to meet the costs of the above supervised time.

   2.  The Court appoints an Independent Children's Lawyer to represent the children;

   3.  The Father file and serve, within 21 days, a fresh Initiating Application seeking fresh parenting orders;

   4.  The Court directs the requirement for a s60I certificate to be filed by the Father be waived;

   5.  The Court directs that any filing fee for the Father’s above Initiating Application be waived;

   6.  Consideration of any sanction or action against the Mother relating to her Contraventions of the Court’s Orders of 11 February 2016 is adjourned for mention to a date to be fixed.

   The Court directs the parties to file and serve brief written submissions (no longer than six pages) in relation to the Court’s above proposed interim parenting orders and directions.

8. The parties responded to the above email with submissions, and in the Mother’s case, with additional material, referred to below. The Father’s submissions indicated that he fully supported the Court’s proposed interim related parenting orders. The Mother, on the other hand, maintained her position as set out in her proposed variations to the Court’s Orders of 11 February 2016, effectively providing for X not to spend time with the Father or Y, and for Y to not spend time with the Mother, at least until the children are much older and have reached their own views in this context. The mother stated that she had moved to Queensland recently; she informed the Court by email later that she had moved to the suburb of Suburb B being in the relatively near vicinity of the Court’s Brisbane registry.

9. The Court has presently before it the following material of the parties:

   a)The Father:

   i)the Father’s Affidavits filed 2 August 2018, and 23 April 2020;

   ii)the Father’s written submissions dated 11 May 2020;

   iii)the Father’s proposed “Final Orders sought by the Applicant Father” dated 23 April 2020; and

   iv)the Father’s written submissions dated 22 October 2020.

   b)The Mother:

   i)the Mother’s proposed Minute of Order filed on 12 February 2020;

   ii)the Mother’s Affidavits filed 21 January 2016, 26 November 2018, 17 January 2019, and 3 February 2020;

   iii)the Mother’s solicitor’s written submissions of 13 pages which was provided to the Court at the Contravention hearing on 18 October 2019;

   iv)the Mother’s solicitor’s written submissions (containing 11 paragraphs) dated 30 June 2020;

   v)the Mother’s submission of 6 pages which were provided to the Court on 16 October 2020 in response to the Court’s email sent to the Mother on 18 September 2020;

   vi)the Mother’s submissions dated 30 June 2020;

   vii)the Mother’s chronology of 3 pages;

   viii)Hospital report from Hospital C;

   ix)Letter from Town D Sexual Assault Service dated 15 October 2012;

   x)Psychological report of Ms E dated 6 December 2015; and

   xi)Letter from Ms F, family worker, dated 4 July 2013.

10. The Court has also considered the:

    i)the Family Report dated 10 June 2014;

    ii)Affidavits of the Father filed 11 February 2016 and 29 June 2017;

    iii)Child Dispute Conference Memorandum dated 27 August 2013;

    iv)Affidavit of the Mother filed 5 August 2013;

    being documents referred to in the Mother’s Chronology document and available from the Court’s file.

11. The Court has considered all the above material.

Evidence

1. The Court does not propose to set out the entirety of the parties’ above material.

2. The Mother was born 1985 and is now aged 35 years. The Father was born 1980 and is now aged 40 years.

3. The parties hail from India.

4. The Mother alleges that she does not speak English well and has limited skills in English. The Father speaks English. Both parties speak G Language.

5. Both parties have extended family in India.

6. The Mother completed a healthcare degree in India. She worked as a healthcare worker there for two years. The Father worked as a technician at a business in India.

7. The Mother alleges that the marriage to the Father was an arranged marriage. The marriage was in India in 2009.

8. The Mother refers to an act of self-harm in June 2009 when she was feeling very sad and alone.

9. The parties travelled to Sydney in 2009.

10. The Mother alleges that the Father perpetrated acts of family violence upon her, including alleged physical assaults.

11. The Father denies the Mother’s allegations of family violence.

12. The Mother alleges that she left the Father for the final time in April 2012. At about this time the Mother ascertained that she was pregnant with the child X. It appears the Father was not aware of the Mother’s pregnancy at this time.

13. The Mother alleges, as at the date of making her Affidavit filed 21 January 2016, she had not seen the child Y since leaving the child with her Mother on 20 November 2011.

14. The Mother alleges that the parties attended mediation in about June 2015.  Thereafter, for a period, she alleges there were regular Skype meetings with the children. The Mother alleges that the parties stopped talking to each other in about October 2015.

15. In paragraph 142 of the Mother’s Affidavit filed 21 January 2016, she alleges that she is now seeking that the parties meet in Sydney every four months for 2 to 4 days. She alleges that she would like to meet the child Y and the Father in public places only.

16. In paragraph 144 of the Mother’s above Affidavit, she alleges that she completely agrees that the children need to see each other and mingle.  She alleges that she would love to meet the child Y too and she misses him dearly.

17. In paragraph 154 of the Mother’s above Affidavit, she alleges that she is still concerned that the Father will come to her house and hit her so much that she might die. She also alleges that she is worried that the Father would hurt the child X like the Father hurt the Mother because she is a girl.

18. In the Mother’s Affidavit filed 26 November 2018, she refers to her new child H born 2018. The Mother refers to currently living with her new partner, H’s Father.

19. In the above Affidavit filed 26 November 2018, the Mother alleges that she is not currently working and she is staying home as a full-time Mother.

20. In the Affidavit of the Mother filed 17 January 2019, she alleges that she had never wanted to be parted with the child X or giving her away.  She alleges that she gave birth to X in Town A on her own without the presence of the Father. She alleges that she has raised this child for the last five years on her own.

21. In the above Affidavit of the Mother she alleges that the Father has abused his rights and that he only wants to use his contact right as a weapon against the Mother. The Mother alleges that giving the child X away has never been in her thought. She states that she will strongly oppose any application for full custody of the child X from the Father.

22. In the Affidavit of the Mother filed 3 February 2020, the Mother again alleges domestic violence having been perpetrated against her by the Father since the parties’ marriage.

23. In the above Affidavit the Mother alleges that she loves both of her children Y and X without any reservation “but I have to give Y up due to my fear of (the Father)”.

24. In the above Affidavit, the Mother alleges that she ran away “despite knowing that I have been pregnant with our second child X and I kept that pregnancy from him. I went to hospital on my own and gave birth to X at the hospital without (the Father).”

25. In the above Affidavit, the Mother alleges that she is now living in a caring and loving family and she does not want to lose that.

26. In the above Affidavit, the Mother alleges that the Father did not want to have a meaningful relationship or to contribute to the upbringing “of our child, he just wanted to punish me for leaving him. He has brought me to Court several times per year for nearly every year since our separation.”

27. In the above Affidavit, the Mother alleges that the Father has not provided the Mother with anything about the child Y. The Mother alleges that she loves and cares for Y as much and she loves and cares for X but her fear of the Father for past abuses allegedly prevents her “from taking to Court for his breaches of the same Court order.”

28. In the above Affidavit (paragraph 22) the Mother refers to her admissions of breaches of the Court’s Orders, the subject of the Court’s contravention findings, and states, inter alia:

    I have been forced to do that as the result of years of domestic violence. I have a conviction and a strong belief based on past experience that (the Father) never wanted to have a positive or meaningful relationship with X but he only uses X as an excuse to punish me or to disrupt my new family. Previously, I had tried to fully obey Court’s Order but I had come to the point that I have to protect my life and my new loving and care family.

29. The Mother alleges, in relation to the interim Skype orders made on 17 May 2019, that the Father had three Skype calls with each call lasting less than a minute. She alleges that the Father did not make any call after three weeks and did not tell the Mother of his reason for his absence. On the other hand, the Father alleges that the Mother failed to facilitate Skype calls.

30. The Mother alleges that the child X is currently living in a caring and loving family. She alleges that X loves and adores her younger sister and always acts in a protective and big sister manner. She alleges that her new husband loves and cares for both children equally.

31. The Mother alleges that the child X is attending primary school in year two. She is allegedly doing well at school and loves her school. She has several friends at school.

32. The Mother humbly requests the Court “to leave our family in peace and allowing X to live in growing up peacefully.”

33. The Mother states, “In relation to the future, I humbly request to this Court that to give single parental custody of either to myself and that of Y to (the Father), to allow each child and his or her respective family to live and bring up the child in a loving and caring environment.  It should be no contact order for non-custodian parent until such time that the child is old enough to contribute or to make choices.”

34. The Mother alleges, “I gave birth to X all alone without her dad support and present, and brought her up all these 6 years with a lot of financial and physical hardships to give her the very best X could get.”

35. The Mother alleges, “due to (the Father’s) careful plot against me, he got full custody of Y. I did not try to fight with him as I know doing so would lead to more abuse on me.”

36. The Mother alleges, “I had enough Court trips and all my financial resources are exhausted. I’m putting my new family into more troubles with these Court visits. I do not want to get Court notices again in regards to X after putting all my efforts to bring her up all these years without anyone support.”

37. The Mother alleges, “By considering all my hardships and sincere efforts to bring up X, I humbly request Honourable Court to give me single and exclusive custody of X for the best interest of X.  I am glad to give my consent to provide (the Father) single and exclusive custody of Y.  I do not want to interfere in Y’s life and the same I want for X for both of their peaceful and happy life. If that cannot be granted, with a heavy and broken heart I humbly request this Honourable Court to take away X from me and give her to her dad, (the Father) with exclusive single-parent custody.”

1. The above allegations of the Mother are reflected, to some extent, in her solicitor’s written submission dated 30 June 2020. In that written submission, inter alia, it is submitted, “It is the respondent’s humble submission that the child (X) either be with the Mother solely and without contact or visit or that the Court gives such sole custody to the Father.”

2. The Mother’s solicitor’s final submission states, “As the child’s best interest is paramount in custody matter, we are instructed to submit that it is for the best interest of the child that she remains with the Mother.”

3. In the Father’s Affidavit filed 2 August 2018, he alleges, inter alia, that no face-to-face contact has occurred at all since the Court’s Orders of 11 February 2016.

4. In the above Affidavit of the Father, the Father outlines in detail the efforts that he allegedly made to communicate and spend time with the child X in accordance with the Court’s Orders of 11 February 2016 without significant success.

5. In the Father’s Affidavit filed 23 April 2020, he alleges, inter alia, that he first ascertained that the Mother had given birth to X in about February 2013. He refers to having commenced proceedings in the Court in March 2013. He refers to Orders made on 18 September 2013 for the child X to spend supervised time with him in Town A. He alleges that he only had four supervised visits with X with the Mother allegedly cancelling other visits.

6. In the above Affidavit of the Father, he alleges that, in relation to the Court’s Consent Orders of 17 May 2019, he met with the child X on 28 September 2019 for 20 minutes only when the Mother’s friend abruptly ended the visit, allegedly stating, “X’s Mother said we can only stay for 20 minutes”. The Father alleges during this visit that X was a bit shy and cautious. The Father states that this was likely because X has not spent time with him for a long time.

7. In the above Affidavit, the Father refers to having been involved in extensive litigation with the Mother “due to her ongoing failure to comply with various orders of the Court made over the years”. He alleges the Mother is completely unwilling to facilitate a relationship between X and himself and between the children. He alleges that he does not want X to grow up without having a relationship with him.  The Father alleges he has the support of his Mother and his aunt who are able to care for Y if he travels to Town A to spend time with X.  He alleges that he wants Y to spend time with X but that Y is unable to travel, and as long as the Mother is unwilling to travel to Sydney, there is nothing else he can do to facilitate this relationship. The Father alleges his hope that the Mother will begin to comply with the existing orders for Skype video calls so that the children can at least communicate and see each other that way.

8. In the above Affidavit of the Father, he denies the Mother’s allegations of family violence.

9. The Court, having considered all the parties’ above stated material,  remains of the view that it does not have sufficient evidence before it to enable it to determine whether the parties’ proposed variations to the Court’s Orders of 11 February 2016 are in the best interests of the children. 

10. In relation to the Father’s proposed variations to the Court’s Orders of 11 February 2016, for example, there is scant evidence relating to whether the child X would be able to cope with unsupervised time so quickly as proposed by the Father (he seeks unsupervised time with X after only 2 supervised visits) in circumstances where X has no relationship with the Father. There is no expert evidence available regarding the children, noting that the Family Report prepared in 2014 did not embody any interviews or observations with the children.

11. In relation to the Mother’s proposed variations, there is insufficient material before the Court, including expert evidence, as to whether it will be in the best interests of the children to make the Mother’s proposed drastic orders, effectively providing that the child X has no relationship with the Father, the children have no relationship with each other, and the child Y have no relationship with the Mother, at least until, as proposed by the Mother, the children are much older and have reached their own views in this context. 

12. The Court will now consider whether the Court’s proposed interim parenting orders and directions, as set out in its email to the parties recently (referred to above), will be in the best interests of the children.  Firstly, it is helpful to set out relevant legal principles relating to interim parenting proceedings.

Legal Principles

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

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

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

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

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

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

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

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.

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

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

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

Discussion

1. The child X would appear to have a meaningful relationship with the Mother and would benefit from a continuance of that relationship.

2. The child Y would appear to have a meaningful relationship with the Father and would benefit from a continuance of that relationship.  The Mother makes no criticism of the Father’s parenting of Y, being a child with cerebral palsy.

3. The Court had made interim Consent Orders on 17 May 2019 providing for the child X to spend time with the Father in Town A on three separate occasions; on one occasion in July 2019, and on two occasions in September 2019, with such time to be in the presence of a family friend or friend of the Mother. Again, there was only one visit that actually occurred between the child X and the Father on 28 September 2019. The Father alleges that the child X was shy and cautious on that occasion. He alleges that the Mother’s friend, present at the visit, unilaterally terminated the visit after 20 minutes, whereas the Mother alleges that the Father stayed no longer than 20 minutes with the child. 

4. In relation to the proposed visit on 14 July 2019, the Mother alleges that the Father did not inform her of his absence in Town A on 14 July 2019.  The Father alleges that, in relation to this proposed visit on 14 July 2019, he was unable to obtain carers for the child Y and so he was unable to travel to Town A.

5. The Mother alleges that the Father did not turn up for the visit on 29 September 2019 and did not inform the Mother of his absence as well.  On the other hand, the Father alleges that this visit did not go ahead and the Mother did not provide him with an explanation as to why.

6. The child X has no present relationship with the Father. Although she spent some 20 minutes with the Father, in the presence of the friend of the Mother, in Town A on 28 September 2019, before that visit, the Father had not spent time with X since prior to the Court’s Orders of 11 February 2016. On the material before the Court, there is a significant suggestion that the child X may well benefit from having a meaningful relationship with the Father. The longer the child X does not spend time with the Father, there is an increased significant risk that the timely development of a meaningful relationship between X and the Father will be detrimentally affected. Should the Court make its proposed interim parenting orders, relating to X spending supervised time with the Father, there is a real prospect that the child X can begin to develop a meaningful relationship with the Father.

7. The Court gives significant weight to this meaningful relationship primary consideration, discussed above.

8. The Mother alleges, in her Affidavit filed 3 February 2020, that the reasons that she committed the found contraventions was because she had been allegedly exposed to years of domestic violence perpetrated by the Father against her. Consistent with this allegation of the Mother, in relation to the Court’s proposed interim parenting orders, again the Mother refers to what she alleges was significant domestic violence perpetrated against her historically by the Father. However, as to the Mother’s allegations of family violence against the Father, the Court observes:

   a)the Mother makes no complaint against the Father in relation to his care of the child Y (which the Court would observe is a child with cerebral palsy) over many years of care by him. She does not allege that the Father has abused Y in any way.

   b)the Mother agreed, in particular, to Order 7 of the Court’s Orders of 16 February 2016, being time-with orders, in circumstances where the alleged family violence against her by the Father had allegedly occurred well before that date. 

   The Court should clarify that the Court did decide, in relation to its Orders of 16 February 2016, the issue of the precise period every four months that the children spend time with each other and with the parent with whom they are not living i.e. Order 7 provided the children spend time with each other and with the parent with whom they are not living every four months for a period of four day.

   Further, the Court observes that the Mother was represented by counsel on 11 February 2016. It appears that an interpreter was assisting the Mother on that day. A consent Minute of Order dated 11 February 2016 was signed by the parties and ICL and the Court’s Orders significantly reflect those agreements, with the Court determining some issues not agreed upon (see above).

   c)In paragraph 142 of the Mother’s Affidavit filed 21 January 2016, she alleged that she is now seeking that the parties meet in Sydney every four months for 2 to 4 days. She alleges that she would like to meet the child Y and the Father in public places only. In paragraph 144 of the Mother’s above Affidavit she alleges that she completely agrees that the children need to see each other and mingle. She alleges that she would love to meet the child Y too and she misses him dearly.

   d)the Mother’s alleged concern regarding the visit between the child and Father on 28 September 2019 was that the Father only spent 20 minutes with the child, with the Court acknowledging that the Mother had a friend present at such time.

   e)the Mother’s ultimate parenting proposal, in the event that the Court does not give the Mother “the complete custody of X” is that the child X should be returned to the Father; this position of the Mother is quite inconsistent with her allegations that the Father poses a significant risk of harm to both the Mother and/or X if he was to spend time with X.

9. The Mother alleges that she will suffer adverse mental health should she be required to facilitate the child X spending time with the Father; in this context she submits that she will suffer mental torture. The Mother refers to the report of the clinical psychologist dated 6 December 2015 in relation to herself. Inter alia, the psychologist reported that according to the Mother’s responses on the Davidson self rating PTSD scale, the intensity of her alleged symptomatology would not fit her for a diagnosis of PTSD at the present time. It was stated by the psychologist that the Mother currently best fits a diagnosis of Other specified Trauma-and Stressor-Related Disorder, with associated depression and anxiety. This report is of some antiquity. There is no current expert evidence adduced by the Mother to suggest there is at least a significant risk that she will suffer emotional harm if the child X begins to spend supervised time with the Father.

10. On the material before the Court, in circumstances where the child has no relationship with the Father, so as to reintroduce the child X to the Father in an emotionally safe manner for the child, with a view to establishing a meaningful relationship between the child and the Father, the child’s time with the Father should commence with supervision. The Court can reassess this issue of supervision after the ICL has entered the proceedings, having conducted relevant enquiries.

11. The Court refers to the above discussed matters relating to the Mother’s allegations of historical family violence against the Father. On the material before the Court, subject to the above reasoning of the Court in having the child X initially spend supervised time with the Father, the Court presently does not have a concern that there is a significant risk that the child X will be exposed to physical or psychological harm if spending supervised or unsupervised time with him. 

12. It is apparent from the Mother’s admitted Contraventions of the Court’s Orders of 11 February 2016, and from her Affidavits and written submissions, that she presently has no intention of facilitating a relationship between the child X and the Father, nor between the children, or between the child Y and the Mother, at least until the children are “old enough to contribute or to make choices.” This is reflected in the Mother’s proposed Minute of Order filed 12 February 2020.

13. On the material before the Court, it will not be in the best interests of the children to presently make the Mother’s proposed variations to the Court’s Orders of 11 February 2016. Again, the Mother’s proposed variations to the Court’s Orders of 11 February 2016 can be properly considered following more fulsome evidence becoming available to the Court, through expert evidence, such as a family report, and otherwise.

14. In the view of the Court, evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the children to make interim parenting orders in accordance with the Court’s proposed interim parenting orders, set out in its above email to the parties. Summarising briefly, those orders would entail that:

    a)the Father spend supervised time with the child X in Brisbane, where the child lives with the Mother;

    b)direct the parties, if so advised, to file fresh applications seeking final parenting orders;

    c)appointing an ICL (who, inter alia, can interview the children, and obtain relevant documents under subpoena), and then returning the proceedings back to Court for mention a short time thereafter. At that time, the Court could consider making orders for expert evidence, and receive the input of the ICL.

15. The Court should state, in the event that the Mother or Father commence fresh proceedings seeking fresh parenting orders, that there probably has been a significant change in circumstances since the Court’s Orders of 11 February 2016 (see the rule in Rice & Asplund (1979) FLC 90-725) in that those latter orders have not been facilitated to any significant extent by the Mother. For example, there has been no face-to-face time between the child X and the Father since those latter orders, apart from a visit of 20 minutes on 28 September 2019.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 24 November 2020