BECKER & MOSS

[2017] FCCA 407

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKER & MOSS [2017] FCCA 407

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks & Banks [2015] FamCAFC 36

Applicant: MR BECKER

Respondent: MS MOSS

File Number: PAC 2438 of 2016

Judgment of: Judge Newbrun

Hearing date: 3 February 2017

Date of Last Submission: 3 February 2017

Delivered at: Parramatta

Delivered on: 7 March 2017

REPRESENTATION

Solicitors for the Applicant: Peter Dawson & Associates

Solicitors for the Respondent: Women's Legal Service NSW

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law

ORDERS PENDING FURTHER ORDER

1. The mother have sole parental responsibility for the children in relation to major decisions affecting their care, welfare and development.

2. The children live with the mother.

3. The children spend time with the father supervised by the Penrith Contact Centre run by Relationships Australia and, subject to the availability of such centre, they spend such time with the father at least each alternate Saturday for at least 3 hours.

4. Liberty to the Independent Children’s Lawyer to relist the proceedings on 7 days’ notice.

5. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 16 January 2018.

   The Family Report to deal with the following matters:

   (a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   (c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   (i)either of the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

   The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.

6. Proceedings adjourned for mention to 16 February 2018 at 9.30am following the release of the Family Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2438 of 2016

MR BECKER

Applicant

And

MS MOSS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing relates to the children X born (omitted) 2008, Y born (omitted) 2012, and Z born (omitted) 2015.

2. The father relied upon his documents referred to on page 2 of his Case Outline dated 27 January 2017 and Relationships Australia, CSS: Initial Contact Form and Fee Schedule.

3. The mother relied upon her documents referred to on page 2 of her Case Outline filed 31 January 2017, together with:

   a)Certain subpoenaed documents, being NSW police (2 sleeves), (omitted) Family Services, (omitted) Medical Centre, (omitted) Primary School;

   b)Australian Standards of Practice for Family Assessments and reporting, February 2015; and

   c)Family Violence Best Practice Principles, December 2016.

4. Ultimately, the father’s proposed interim orders were set out in Exhibit C. They provided, inter alia, that the children live with the mother, the children spend time with the father supervised by the (omitted) Contact Centre run by Relationships Australia; and that until such supervised time at the Contact Centre commence, the children spend supervised time with the father supervised by the mother’s new partner.

5. The mother’s proposed interim orders were set out in her Minute of Order, Attachment A to her Case Outline; they provided that the children live the mother and the children spend no time with the father.

6. The ICL proposed interim orders providing for the children live with the mother, the children spend time with the father supervised at the Contact Centre, and that the mother have sole parental responsibility.

Agreed or undisputed relevant facts

1. The mother is Aboriginal. She is aged 27 years. The father is aged 30 years. He is not aboriginal.

2. The mother is a full-time homemaker. The father works as a (occupation omitted).

3. The parties’ relationship began in 2006.

4. The mother has been the primary carer of the children since birth to date. The father was involved in the rearing of the children, including involvement in the children’s sports activities.

5. The parties separated in mid-December 2015, following a domestic violence incident. The father was charged and convicted in relation to a common assault perpetrated by him upon the mother, involving him having pushed the mother just prior to the separation. The father appealed the conviction and in August 2016 received a Section 10 bond from the District Court of NSW.

6. On 12 April 2016 a final ADVO for one year was made in the Local Court at Mt Druitt, with the father being the defendant and protected person the mother.

7. The mother states that the child X is doing well at school. He is very social, has lots of friends and particularly enjoys playing school sport. He also plays football for a local club. The letter from the principle of this child’s primary school at (omitted) supports the mother’s contentions that the child settled well into school and is a very valuable member of Year 2.

8. The child Y, according to the mother, attends child-care, beginning child care in early February 2016. This child’s behaviour has improved significantly following counselling at (omitted) Family Services, and the mother describes him as being very affectionate, his speech has improved, is fully toilet trained and his social skills have improved.

9. Generally, the mother describes the children as being in good health.

10. The mother describes the children as being very close to her parents and spending lots of time with them.

Relevant 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 v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), 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 [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) FLC 93-654 said at 80, 332:

   [80] 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 recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

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).

8. 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: section 61DA of the Act. 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: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship.

2. Whilst it is not totally clear on the evidence before the Court as to the extent and nature of the children’s present relationship with the father, and which may have been compromised to some degree by reason of events occurring at the time of separation with the resultant cessation of spending time with the father thereafter, it would appear that historically the children have enjoyed a meaningful relationship with him, and, subject to the father not exposing the children to family violence, the children would likely benefit from a meaningful relationship with the father.

3. There is a significant risk that should the children spend no time with the father until a final hearing of those proceedings, which may well not occur for at least 9 months, noting that they have not spent any significant time with him since the separation of the parties in December 2015, the prospect of the children re-establishing their meaningful relationship with the father may well be detrimentally affected. Should the children spend some regular time with the father supervised at a Contact Centre, there is a significant prospect that their former meaningful relationship with the father can be re-established.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother makes serious allegations of family violence perpetrated against her by the father during the relationship. For example, she relates an incident in about the summer of 2009 when the father grabbed her by the throat, and squeezed her neck so hard that her nose started to bleed (the father specifically denies this incident). The mother’s affidavit sets out in great detail her allegations relating to family violence. She also refers to a number of occasions when the father allegedly tried to force or put pressure on the mother to have sex with him when the mother did not want to.

2. The mother refers to the incident on about 12 December 2015 at the time of separation. She refers, inter alia, to the father barging her in the shoulder, and pushing the mother to the ground.

3. The mother alleges that the father is short tempered and has no patience with the children (the father specifically denies this allegation). The mother alleges various incidents of physical family violence perpetrated against the child X, during the relationship. She alleges that the father has punched X, and has often smacked and hit him and Y in anger and frustration.

4. The mother refers to an incident in 2007 involving a self-harming incident by the father. The father admits that he acted “stupidly” and admitted himself to hospital but discharged himself the next day.

5. The father denies the mother’s allegations of family violence. He denies the allegations in relation to the incident on 12 December 2015, in relation to pushing the mother’s shoulders and standing over her.

6. The father denies verbally abusing the children. He asserts the mother did this.

7. The father denies physically abusing the children.

8. The father denies the mother’s allegations of being racist. The father alleges that he was a (hobby omitted) of Aboriginal children.

9. The father attaches several character references to his affidavit filed 9 September 2016, however they do not expressly refer to the disputed allegations between the parties. However, the character reference of Mr C states that he has never seen, while being in the father’s company, the father to be violent or aggressive towards his family members.

10. The father relies upon an affidavit of Mr J; that the deponent speaks positively of the father. He states the father is far from being racist and the deponent states the father has not been aggressive or violent to any degree in relation to the children. Another affidavit the father relies upon is that of Ms P, being the paternal grandmother. She refutes the mother’s allegations made against the paternal grandmother’s family. She states that her memory of the mother’s relationship with the father and children is completely at variance with every event the mother alleges. She refers to the paternal grandparent’s historical involvement in the lives of the children.

11. In the Child Dispute Conference Memorandum to Court dated 2 August 2016, the mother proposes that the children live with her and spend supervised time (2 hours per fortnight) with the father on an interim basis. The mother told the Child Dispute Conference family consultant that she is supportive of the children spending time with the father, but requires this to be supervised as she has concerns that the children will not be safe in the care of the father.

12. The mother told the Child Dispute Conference family consultant that the ADVO following the incident in December 2015 was a result of being pushed to the ground by the father. The mother reported that the two eldest children witnessed this event.

13. The father told the Child Dispute Conference family consultant that he had pushed past the mother but could not account for how she may have ended up on the ground.

14. Again, the father denied any allegations of ever hitting, swearing or yelling at any of the children.

15. The mother reported that since January 2016, the father has seen the child X once or twice a month on Saturdays at that child’s football game. The mother stated that the two younger children have not seen the father since this time.

16. The Child Dispute Conference family consultant asked the mother whether the child X would benefit from counselling, given his reported exposure to family violence, physical and verbal abuse. The mother stated that she does not feel that the experience traumatised X but did traumatise Y.

17. The Child Inclusive Conference Memorandum to Court dated 28 September 2016, again noted the mother’s proposal that the children live with her and spend supervised time with the father on an interim basis.

18. The father told the Child Inclusive Conference family consultant that he pays $320 a week in child support to the mother.

19. The mother told the Child Inclusive Conference family consultant that the children’s time with the father should be supervised, and in this context, she alleged that the children may be subjected to smacking and verbal abuse by the father, and also alleged that they may be pressured to talk about her to the father.

20. The mother alleged to the Child Inclusive Conference family consultant that the two eldest children had not asked about the father or to see him since separation.

21. The child X was interviewed by the Child Inclusive Conference family consultant. The child presented as reserved. He referred to the father yelling at him when he missed a tackle in his football game. The child recalled an incident when the father grabbed his throat and held him up on the wall. He felt sad by this because the father had grabbed his throat too hard. The child stated that the father would smack him for no reason on the hand but that he did not get smacked very often. He stated that the youngest boy was smacked by the father. The child stated that he would like to recommence spending time with the father. The child stated that he did not have any future worries that the father would smack or yell at him. He stated that he would like to spend Saturdays and Sundays with the father and be taken to the soccer field to play soccer.

22. The father denied that he had ever hit, hurt or yelled at the child X having been informed of that child’s statements to the Child Inclusive Conference family consultant. The father stated that that child had been brainwashed by the mother.

1. With the mother’s permission, the child X, having told the family consultant that he wished to see the father, was reunited with the father briefly at the conference. The father hugged the child and told him that he loved and missed him. The child X was quiet throughout the interaction with the father and appeared to find the experience emotional. The child Y saw X with the father and ran over to X and the father quickly before running back to the mother.

2. The Child Inclusive Conference family consultant, under the heading “Future Directions” stated that given that the child X has expressed that he would like to see the father on weekends, it may be in the child’s best interests to commence spending some time with the father. She stated that given the ages of the two younger children, and the amount of time they have not seen the father, it was unlikely to be in their best interests for further delays of some time commencing for them in seeing the father. The family consultant stated that it was a matter for the Court as to whether such time should be supervised. She stated that given the relationship dynamics between the parents and the potential for conflict, it may be in the children’s best interests that the parents do not come into contact with each other and that all changes occur via a Contact Centre or at school. They should also not come into contact with each other at the children’s sporting events.

3. The Court has considered the subpoenaed documents. In particular, the Court notes the (omitted) Medical Centre documents.

4. In early June 2016, the mother reports to the GP having left an abusive and violent relationship. The (omitted) Psychology letter of 16 June 2016 to the GP reports the mother having completed an initial session of counselling under a mental health care plan. It states that the session addressed the mother’s experience of leaving a relationship which ended with domestic violence. The report stated that the mother is moving on well with her three children, appearing stable and happy in a new relationship, with little emotional disturbance evident with regards to her recent difficulties.

5. The GP Mental Health Treatment Plan dated 6 June 2016, in relation to the mother, refers, inter alia, to the father having been abusive, emotional and verbally, since almost the start of the relationship. It refers to the father having started to become physically abusive in December 2015 when the mother told the father that she would be leaving him as she was feeling down and depressed and anxious from verbal and mental abuse by the father on an almost daily basis. It states that the mother left the father after he was physically abusive and she called the police and had an AVO taken against the father. It refers to the mother having offered the father an opportunity for supervised visits of the children.

6. (omitted) Family Services subpoenaed document refers to the child Y’s counselling. On 17 August 2016 it refers to the mother coping well with changes and Court hearings. She is recognising Y’s progress and supporting her children.

7. At this interim stage, the Court is unable to make findings of fact in relation to the mother’s allegations of family violence perpetrated against her by the father prior to the separation incident on or about 12 December 2015 (the father received a Section 10 bond on appeal from what appears to have been a pushing type incident by the father upon the mother). Pursuant to legal authority, the Court cannot ignore the mother’s allegations of such family violence prior to the incident at separation where the father denies such allegations. The child X told the Child Inclusive Conference family consultant of being assaulted himself by the father which might be thought to lend some material support to the mother’s allegations. On the other hand, this child could not relate observations by himself of the father having previously hurt the mother, and the mother’s history given to the GP, and contained in the Mental Health Care Plan, refers to the father having started to become physically abusive in December 2015. The NSW police subpoenaed records, whilst not conclusive, refer to numerous family incidents being reported to the police.

8. In any event, the fact of the father’s perpetration of an assault against the mother at separation, apparently involving him pushing her to the ground, and according to the mother having taken place in the presence of two of the children, the fact of the child X’s statements to the Child Inclusive Conference family consultant of being assaulted himself by the father (he stated that the father grabbed his throat too hard), including that child reporting that he would be smacked for no reason on the hand, as well as his statements that the child Y was also smacked by the father, indicate that there is a need to protect the children from the risk of abuse or family violence in spending unsupervised time with the father.

9. Based on the present evidence before the Court, the Court is of the view at this interim stage that the risk to the children of being exposed to such abuse or family violence can be appropriately addressed and managed by the children spending time with the father supervised at a Contact Centre.

10. The mother submitted that there was a significant risk of at least the child X suffering emotional harm in having to spend supervised time with the father at a Contact Centre. In this regard, there is force to the submission of the Independent Children’s Lawyer that supervisors at the (omitted) Contact Centre run by Relationships Australia would be likely to identify any risk of emotional harm to the children spending supervised time with the father, and take appropriate action, if they were to, for example, observe any fear being experienced by the children or any disharmony between the children and the father in this setting. In this context, the Court also notes the child X told the family consultant at the Child Inclusive Conference that he wished to spend some weekend time with the father, and the Court would give some weight to this child’s views. The Court also notes the mother’s statements to the Child Inclusive Conference family consultant that she did not feel that this child’s experience of being exposed to family violence traumatised him. As to the child Y, although the mother reported to the Child Inclusive Conference family consultant that this child was traumatised by his exposure to family violence, the Court notes the mother’s evidence and other material before the Court indicating that this child had progressed positively since counselling through (omitted) Family Services, including this child having settled well and progressed in preschool three days per week and weekly play therapy since February 2016.

Section 60CC(3) - Additional Considerations

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

1. The Court refers to the need to protect primary consideration discussed above.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties would appear to have taken such opportunities.

(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

1. The limited evidence before the Court at this interim stage would appear to indicate that both parents have fulfilled such obligations.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Should the children spend supervised time with the father at a Contact Centre, their meaningful relationship with the mother should not be detrimentally affected. In this regard, it is not without relevance that the mother told the family consultants that she wished the children’s time with the father to be supervised.

3(f) The capacity of each of the child’s parents; and 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

1. Subject to the Court’s discussion above under the meaningful relationship and need to protect primary considerations, both parties would appear to have such capacities.

3) (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

1. The Court refers to the need to protect primary consideration discussed above.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

1. Should the children spend supervised time with the father at a Contact Centre, there should be no adverse impact on such rights of these children.

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

1. Both parents would appear to have demonstrated appropriate attitudes to the children and to their responsibilities of parenthood, subject to the Court’s discussion above, in relation to the father, under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to the need to protect primary consideration discussed above.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

1. The Court refers to the need to protect primary consideration discussed above, and to the agreed facts also referred above.

m) Any other fact or circumstance that the Court thinks is relevant.

1. The father proposes that the mother’s new partner supervise the children’s time with the father pending the Contact Centre being able to facilitate supervised time. There is no significant evidence before the Court as to the father’s relationship with the mother’s new partner, and furthermore the mother’s new partner would appear not to have the expertise that trained supervisors of a Contact Centre would possess. At this interim stage, it would not be the best interests of the children to permit supervised time between the children and the father to occur in circumstances where the mother’s new partner was the supervisor.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The presumption of equal shared parental responsibility does not apply in this case by reason of family violence perpetrated by the father. The mother has been the primary carer of the children from birth to date. On the evidence before the Court it is unlikely that the parties could reach agreement in relation to major decisions affecting the care welfare and development of the children. The Court proposes that the children spend supervised time with the father at a Contact Centre. In all the circumstances, at this interim stage, it is in the best interests of the children that the mother have sole parental responsibility in relation to major decisions affecting the children’s care welfare and development.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it is in the best interests of the children to make the following interim orders:

   1) The mother have sole parental responsibility for the children in relation to major decisions affecting their care welfare and development.

   2) The children live with the mother.

   3) The children spend time with the father supervised by the (omitted) Contact Centre run by Relationships Australia and, subject to the availability of such centre, they spend such time with the father at least each alternate Saturday for at least 3 hours.

   4) Liberty to the Independent Children’s Lawyer to relist the matter on 7 days’ notice.

   5) A family report be prepared.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 7 March 2017