BAYER & BAYER

[2018] FCCA 2361

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYER & BAYER [2018] FCCA 2361

Catchwords:
FAMILY LAW – Interim parenting – risk assessment exercise.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Eaby & Speelman (2015) FLC 93-654

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Saleh & Saleh [2016] FamCAFC 100

SS & AH [2010] FamCAFC 13

Applicant: MR BAYER

Respondent: MS BAYER

File Number: WOC 299 of 2018

Judgment of: Judge Altobelli

Hearing date: 9 August 2018

Date of Last Submission: 9 August 2018

Delivered at: Wollongong

Delivered on: 10 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: Rita Thakur & Associates

Counsel for the Respondent: Mr Grew

Solicitors for the Respondent: Illawarra Family Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The children [X] (born 2011) and [Y] (born 2012) (‘the children’) live with the Mother.

2. The children spend time with the Father on the following basis:

   (a)Time spent with the Father be supervised by the Paternal Grandmother;

   (b)The Paternal Grandmother provide an Undertaking to the Court that she will diligently supervise the children’s time with their Father at all times and intervene by removing the children from his care if at any time she reasonably forms the view that they are at risk of harm in any way, or become distressed;

   (c)For a period of 4 weeks commencing this Sunday 12 August 2018, time is to occur on each Sunday between 10:00am and 4:00pm;

   (d)Thereafter and commencing on the weekend of 8 - 9 September 2018 from 10:00am to 4:00pm on Saturday and from 10:00am to 4:00pm Sunday each alternate weekend;

   (e)Additionally; each Wednesday from after school or 3:00pm to 6:00pm; and

   (f)At such other or alternate times as agreed between the parents.

3. Changeover be facilitated as agreed between the parents or as recommended by the Independent Children’s Lawyer but failing agreement then changeover is to occur as follows:

   (a)On weekends, the children be collected by the Paternal Grandmother on the Father’s behalf at the nearest McDonalds’ family restaurant to the Mother’s home at the commencement of each period and cause the children to be returned to the Mother at the aforementioned McDonald’s family restaurant at the end of each period; and

   (b)During the week, the Paternal Grandmother on the Father’s behalf is to collect the children from school at the commencement of each period and cause the children to be returned to the aforementioned McDonalds’ family restaurant at the conclusion of each period.

THE COURT ORDERS BY CONSENT THAT:

1. The parties do all acts and things and sign all documents necessary to apply for a passport on behalf of the children [X] (born 2011) and [Y] (born 2012) (‘the children’) and to this end the Mother is to obtain and complete the necessary documentation and the Father is to sign and return the otherwise complete documentation within 3 days of the same having been forwarded to her.

2. In the event that the Father refuses or fails to sign the passport application, then the Father’s consent to the issue of a passport to the children be dispensed with and the Mother is entitled to apply to the passport office for a passport in the children’s names.

3. The Mother may remove the children from the Commonwealth of Australia departing 23 October 2018 for the purpose of a holiday to (country omitted), and return no later than 21 October 2018.

4. Within 7 days prior to the holiday, the Mother shall provide to the Father a detailed itinerary for the proposed trip which shall include a copy of the return air tickets for the proposed trip.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the [X] (born 2011) and [Y] (born 2012) (‘the children’) and the Legal Aid Commission of New South Wales is requested to provide such representation. 

2. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

4. Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

5. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

6. In the event that the matter resolves during the adjourned period, the parties are at liberty to file terms in the Registry for the purposes of Orders being made in Chambers and the adjourned date will be vacated.

7. Leave be granted to the parties to file consent Orders in the Registry for the purposes of Orders being made in Chambers in relation to the appointment of a suitable Expert.

8. The matter be adjourned to 1 February 2019 at 9:30am for Mention.

THE COURT NOTES THAT:

A.     The purpose of the adjourned date is to consider the Expert’s Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 299 of 2018

MR BAYER

Applicant

And

MS BAYER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. In the matter of Bayer, I provide the following Reasons for Judgment.  [X] is 7 and [Y] is 5, nearly 6, and these Reasons for Judgment explain the Orders that the Court has made, pending further order, in relation to them.  The Applicant Father in this case is 45 years old and the Respondent Mother 40.  There is one other main person in this case and that is the paternal grandmother.  She is 64 years old.  They all live in the Region 1 area and the Court notes, in passing, that there are no issues of practical difficulty and expense that arise in this case.

2. The parents commenced cohabitation in 2009, married in 2010, separated in February 2018.  Shortly after the date of separation, a provisional and then an interim Apprehended Violence Order was made noting the Mother as a person in need of protection.  The Father and the paternal grandmother have not seen the children since the date of separation other than pursuant to an order for supervised contact that was made on 29 May 2018.  That contact appears, on the basis of the relatively limited evidence before the Court, to have progressed unexceptionally.

3. The history of this matter is summarised quite succinctly in the chronologies contained in each party’s case outlines.  There are some differences between these chronologies but they are not significant and they ultimately do not affect this Court’s decision.  Hence, the Court adopts these helpful chronologies.  The proposals that each parent makes are set out in their respective case outlines.  In the Father’s case outline, he proposed equal-shared parental responsibility and equal time but during submissions his Counsel conceded that an order for substantial and significant time was perhaps more realistic.

4. The Mother proposed sole parental responsibility, that the children live with her and spend time with their father at a supervised contact centre.  There was an issue about passports and overseas travel but this was resolved by consent.

5. Orders 12-15 as proposed by the Mother in her case outline were made. The Court believes this is a case to which s.61DA(3) of the Family Law Act 1975 (hereafter referred to as ‘the Act’) applies. It is not appropriate to apply the presumption of equal-shared parental responsibility given the very serious allegations that the Mother makes about family violence. However, the Court notes it is also not satisfied that s.61DA(2) applies at this stage of the proceedings because there is no any evidence to satisfy that what family violence may have taken place has had any impact on the relationship between the children and their mother or father.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

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

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

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

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

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

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

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

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

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

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

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

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)   If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

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

   Additional considerations

   (3)  Additional considerations are:

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

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

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

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

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

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

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

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

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

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

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

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

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

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

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

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

   (i)  the nature of the order;

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

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

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

   (v)  any other relevant matter;

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

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

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

1. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. In the Full Court’s recent decision in Saleh & Saleh [2016] FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made a number of important points, including:

   a)Section 60CC requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. This is a requirement that does not really depend on there being findings of family violence, but focuses on risk, which can exist independently of disputed allegations;

   b)Section 61DA is in mandatory terms: “the Court must apply a presumption” that is in the best interests of a child for there to be an order for equal shared parental responsibility. Section 61DA(3) states that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order. Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. It requires a cautious approach, especially in the context of s.60CG.

   c)Paragraph [68] in Goode, where the Full Court warns against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: Eaby & Speelman (2015) FLC 93-654.

   d)An acknowledgement that at an interim hearing, 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 to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations.

   e)There is no requirement for corroboration or objective support for an allegation of family violence.  Family violence often takes place in private, in circumstances where no corroboration is available.

   f)A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.

4. It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibility applies.

The evidence

1. The Father relied on the following documents in his case:

   a)Initiating Application, filed 21 March 2018;

   b)Notice of Risk, filed 21 March 2018;

   c)Affidavit of Mr Bayer, sworn and filed 30 July 2018;

   d)Affidavit of Ms L, sworn 20 March 2018 and filed 21 March 2018;

   e)Affidavit of Mr J, sworn 20 March 2018 and filed 21 March 2018; and

   f)Affidavit of Mr T, affirmed 13 March 2018 and filed 21 March 2018.

2. The Mother relied on the following documents in her case:

   a)Response, filed 27 May 2018;

   b)Notice of Risk, filed 27 May 2018; and

   c)Affidavit of Ms K, sworn 1 August 2018 and filed 2 August 2018.

3. The parties also relied on the Child Dispute Conference Memorandum dated 7 August 2018, as well as the following tendered documents:

   a)Report from CatholicCare dated 8 August 2018;

   b)Documents produced under subpoena to NSW Police;

   c)Documents produced under subpoena to Suburb A Medical Centre;

   d)Documents produced under subpoena to Suburb B Accident and Emergency Centre; and

   e)Documents produced under subpoena to School 1 Primary School.

4. There are a number of uncontested matters in this case that I think need to be emphasised.  When one looks at the evidence in its totality, the following becomes apparent.  Firstly, the paternal grandmother has played a very significant role in the lives of these children throughout their lives.

5. Secondly, there is an interim Apprehended Violence Order in force that protects the Mother from the Father’s conduct that is referred to there.  Nextly, the Father was investigated by (company omitted) New South Wales and entered pleas of guilty to a number of charges which had certain consequences on him.  Nextly, the Father’s time with the children at the supervised contact centre appears to have proceeded unexceptionally.  Nextly, it surely must be apparent to all concerned that there is no co-parenting relationship between the parents and there is no communication between them. 

6. It must also be acknowledged that there is little or no trust between the parents.  However, on reading the Child Dispute Conference Memorandum, it appears that even the Mother concedes that the children enjoy spending time with their father.  So let me discuss the evidence with these matters of background.  Counsel for the Mother quite properly characterised the proceedings as being “fundamentally a risk-assessment exercise”. 

7. The Mother’s case emphasised the potential risk of harm to the children arising out of two main things; firstly, the family violence allegations that she makes but which are contested to a large part, not entirely, by the Father, and secondly, the potentially alarming issues that arise as a result of (company omitted) investigation which, the Court accepts, would magnify the risk of harm from the Mother’s perspective.  By contrast, however, the Father’s case minimised the said risk of harm considerations by pointing, for example, to a number of factors.  He contends that some of the Mother’s allegations are implausible.  He points to the historicity of some of the allegations and some of the inconsistency in the accounting for some of the events of concern.  All of those matters are noted.  But the Court concludes from all the evidence before it that the Mother’s concerns about family violence are well founded and, indeed, that the (company omitted) investigation quite properly amplifies these risks in her mind.  The impression that was formed from the Father’s case is that he minimises the seriousness of these issues and fails to appreciate it from the Mother’s perspective.

8. If the Court accepts that at a Final Hearing the Father, in fact, made the threats that he did and in a menacing as opposed to jocular fashion, then the (company omitted) investigation suggests that he actually had the means to carry out the threat which, necessarily, amplifies the risk of harm to the Mother and the children.  It must be remembered that what the Court does at an Interim Hearing is assess risks, not actuality.  This is a risk-assessment exercise and the Court accepts that the risk is, in the circumstances, a real one.

9. The real focus of this case then moves to how to minimise or how to manage this risk of harm.  Now, the Mother says it should be at a supervised contact centre.  In fact, it was the Court that suggested the Paternal Grandmother, from memory.  The Father and the Paternal Grandmother agreed.  The Mother was reticent and concerned about the Paternal Grandmother’s partisanship but ultimately, when pressed, her Counsel, quite appropriately, conceded that it was at least an option for the Court if the Court was to consider supervised time – however, if the Court was to consider supervised time by the Paternal Grandmother, he submitted it would be daytime contact only.

10. The Court has the benefit of an Affidavit from the Paternal Grandmother.  The Court has the benefit of evidence from both parents that point very strongly to the fact that both parents have delegated to her, that is, the Paternal Grandmother, the responsibility to care for these children for extensive periods in their life.  To somehow suggest that she is an inappropriate supervisor of the children is hard to understand.  The suggestion that she might have known about some of the matters in respect of which the Father was found, in effect, guilty in the (omitted) investigation is stretching the realms of credibility when one looks at the detailed evidence about that investigation. The Paternal Grandmother is, thus, an appropriate supervisor to assist the Court to manage the risk of harm that it considers does exist in this case.

11. The focus then turns to what period of time. The Court needs to be appropriately conservative. Even if the risk of harm issues are adequately managed there are, nonetheless, issues about the parental relationship. However, the Paternal Grandmother and the Father are familiar figures in the children’s lives. The Father and the Paternal Grandmother live in her home which, of course, is a familiar environment for the children.

12. The Father’s time with the children supervised by his Mother should, at least for the time being, start with daytime on one day each weekend and then progress to both days in alternate weekends.  In addition, there seems no reason and no concern about the children benefiting from having after-school time with the father one afternoon each week.  The Court concludes that the risk issues that it has identified are adequately managed through the making of these Orders.  Important relationships between the children and the significant adults in their life are preserved.

13. The change is minimal for the children but should, in any event, be manageable by them given the circumstances of the familiar environment.  A Family Report or an Expert’s Report will help to assess whether there are other risks and provide much greater depth of information to guide future decision-making.  The Court openly signals its willingness to reconsider these Orders once this expert evidence is obtained.  The presumption of equal-shared parental responsibility does not apply for reasons that I have previously mentioned.

14. That, of course, does not mean that I must make an order for sole parental responsibility.  I can leave things as they are as, in fact, I do.  But this means I do not need to consider equal time or substantial and significant time.  However, if I did, I would consider the same not to be in the best interests of the children due to the family violence allegations that have been made.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 29 August 2018