BERGER & DURRAN

[2017] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERGER & DURRAN [2017] FCCA 1223

Catchwords:
FAMILY LAW – Interim Parenting – whether time with father poses an unacceptable risk of harm to children even if supervised – Order for no time.

Legislation:

Family Law Act 1975, ss.11F, 60B, 60CC, 60CA, 61C, 61DA, 65DAA, 68L

Cases cited:

A & A (1998) FLC 92-800
Goode v Goode (2007) 36 FamLR 422
Johnson & Page (2007) FamCA 1235
Jopson & Lilwall (No.2) [2016] FamCAFC 262
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Roberts & Banks [2011] FamCA 662
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR BERGER

Respondent: MS DURRAN

File Number: PAC 1421 of 2016

Judgment of: Judge Obradovic

Hearing date: 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Parramatta

Delivered on: 9 June 2017

REPRESENTATION

Appearing for the Applicant: Mr Massey

Solicitors for the Applicant: Barber & Massey

Appearing for the Respondent: Self-represented

Appearing for the Independent Children’s Lawyer: Mr Ng

Solicitors for the Independent Children’s Lawyer: Adams & Partners Lawyers

PENDING FURTHER ORDER

1. That the children X born (omitted) 2004 and Y born (omitted) 2007 live with the mother.

2. That the children spend no time with the father.

3. The matter is listed for directions at 9.30am on 17 July 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1421 of 2016

MR BERGER

Applicant

And

MS DURRAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning two children, X born (omitted) 2004 and Y born (omitted) 2007.

2. The parties to the proceedings are the Applicant father, Mr Berger and the Respondent mother, Ms Durran.

3. The proceedings were commenced by way of Initiating Application filed by the father on 1 April 2016.

4. On 24 May 2016, being the first return date of the matter following the filing of the Initiating Application, the Court made orders:

   a)By consent for the father to have telephone communication with the children each Friday between 7.30pm and 8pm and each Monday between 4pm and 4.30pm;

   b)Appointing an Independent Children’s Lawyer pursuant to s68L of the Family Law Act1975;

   c)Directing the parties to attend a Child Inclusive Conference pursuant to s11F of the Family Law Act1975 on 27 October 2016;

   d)Directing the parties to do all acts and things necessary to arrange an intake appointment with the Convenor of the Sydney Children’s Contact Service to assess the suitability of supervised time between the father and the children; and

   e)Listing the matter for further directions on 29 November 2016.

5. On 29 November 2016 the Child Dispute Conference Memorandum was released to the parties and leave was granted to the Independent Children’s Lawyer to release the Memorandum to the Legal Aid Commission of New South Wales for the purpose of ascertaining whether the Commission would fund a Chapter 15 Expert Report.

6. On this date the parties also entered into further consent orders on a ‘without admissions’ basis pending an interim hearing for the father to spend time with the children commencing 11 December 2016 every fourth Sunday from 2pm to 4pm with such time to be supervised by Ms C (who is the eldest child of the parties).

7. The matter was listed for interim hearing on 31 March 2017 and was heard on that day.

Issues in Dispute

1. The central issue for determination is whether or not unsupervised time with the father poses an unacceptable risk of harm to the children. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute, and with very few agreed facts.

Documents relied upon

1. The Father relied on the following documents at interim hearing:

   a)Amended Initiating Application filed 10 January 2017;

   b)Affidavit of Mr Berger filed 1 April 2016;

   c)Affidavit of Mr Berger filed 30 March 2017;

   d)Notice of Risk filed 1 April 2016; and

   e)Case outline document dated 30 March 2017.

2. The Mother relied on the following documents at interim hearing:

   a)Response filed 19 May 2016;

   b)Affidavit of Ms Durran filed 19 May 2016

   c)Notice of Risk filed 19 May 2016; and

   d)Affidavit of Ms Durran filed 21 March 2017.

3. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 – Father’s criminal record produced under Subpoena from New South Wales Police, Sleeve 1;

   b)Exhibit 2 – COPS entries dated 23 January 2016, 4 April 2016 and 4 May 2016 produced under Subpoena from New South Wales Police, Sleeve 4; and

   c)Exhibit 3 –mental health assessment and notes relating to the child Y produced under Subpoena from Ms N – Psychologist, Sleeve 5.

Competing Proposals

1. The interim orders sought by the father at interim hearing were contained in his Minute of Order attached to the Case Outline document dated 30 March 2017, they are as follows:

   a)That X born (omitted) 2004 and Y born (omitted) 2007 live with the mother.

   b)That Y spend time with the father:

   i)Every Wednesday from after school and to conclude before school Thursday;

   ii)Every alternate Friday from after school and to conclude at the commencement of school on Monday; and

   iii)For the first half of all the gazetted school holidays, Terms 1, 2, 3 and 4.

   c)That X shall spend time with the father from time to time in accordance with her wishes.

2. The mother sought orders as contained in her Response filed 19 May 2016 being ‘supervised day visits only’. However, to the Family Consultant the mother indicated that she sought for the children to spend no time with the father, but that if time was ordered she then proposed supervised time alternate Sundays but no overnight time. Important for the mother was that the supervisor was to be someone who could ‘restrain’ the father if there was an attempt to take the children.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[9] the Full Court made the following obiter comments:

    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….

    [9] [2010] FamCAFC 101 at [120]

13. In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[10]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

    [10] [2016] FamCAFC 156 at [9]

14. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.

Relevant Considerations

Uncontested Relevant Facts

1. The father was born on (omitted) 1973 and is currently aged 44 years.

2. The mother was born on (omitted) 1977 and is currently aged 39 years.

3. The parties commenced a relationship sometime between 1992 and 1994.

4. The parties have four children as a result of their relationship:

   a)Ms C born (omitted) 1997;

   b)Mr C born (omitted) 1999;

   c)X born (omitted) 2004; and

   d)Y born (omitted) 2007.

5. The parties separated on a final basis in late 2013/early 2014.

6. On 25 September 2014 a final Apprehended Domestic Violence Order was made for the protection of the mother for a period of two years.

7. In late 2014 the father was incarcerated for a period of nine months for offences relating to the Apprehended Domestic Violence Order. The father’s sister would bring the children to the correctional facility to spend time with the father during his imprisonment.

8. On 17 January 2017, the Apprehended Domestic Violence Order for the protection for the mother was extended for a further period of two years by Hornsby Local Court. The duration of the order is two years from 26 September 2016.  

Other Relevant Evidence 

1. The father asserts that he has “always been a hands on father to the children”. He states that he bottle fed the children when the mother was not breastfeeding, bathed them, changed their nappies, dressed them, brushed their hair and would put the children to sleep. He also states that he toilet trained all of the children.

2. He says that he and the mother would take turns in dropping off and collecting the children from day care and school and that they would take turns in attending extra-curricular activities with the children such as (hobbies omitted).

3. The mother is clear in her evidence about care of the children during the parties’ relationship, namely that she was their primary carer. She asserts that the father worked and that when he was not at home he spent much of his time smoking marijuana. The mother gives evidence about the care of the children when they were young, including for how long she breast fed each of the children.

4. The father says that in January 2014 the mother arrived home one night after she had been drink driving with the children in the car. The father proceeded to call the mother’s mother and later that night the police attended the home where he was arrested and an Apprehended Violence Order was issued naming him as the defendant. It was following this event that the father says the parties separated on a final basis.

5. The father asserts that the mother would frequently call him asking for money for rent and food to feed the children and that he would attend within 100 meters of their home, due to the provisions in the Apprehended Violence Order, to give the mother money. He says that he would sometimes see the children at these times.

6. The mother agrees that the father provided money to her on three occasions shortly after separation to assist in paying for rent.

7. The father says that despite the provisions in the Apprehended Violence Order the Mother would invite him into her home where they would spend time together and that on one occasion in April 2014 he was arrested by police for a breach of the Apprehended Violence Order due to these attendances. Despite this the father continued to attend the mother’s home and he was further arrested in August 2014. The father says that it was on this occasion that the father was sentenced to a term of imprisonment for breaches of the Apprehended Violence Order.

8. The mother has never been represented in these proceedings. Her Affidavits were drafted by her. However, the mother does give the following evidence[11]:

   a)The father was a habitual user of marijuana during the parties’ relationship, and his use of drugs had a negative impact upon him;

   b)Over 20 years of the parties’ relationship, the mother was subjected to varying levels of abuse, including dominating, manipulative and controlling behaviours, as well as physical abuse;

   c)The mother describes three specific incidents of violence, one occurring in January 2014 after separation, and the other two which are not dated. She states that she provided statements to the police about all three incidents. The mother says that on one occasion the father strangled her against an outside wall, and held her there until she almost passed out. He then dragged her to the pathway where he held an axe to her throat and threatened to bury her under the trampoline. The mother says that on another occasion, the father waited for the mother and children in the car after they had visited (omitted) for the day. He then forced the mother to drive home where he kept her in her bedroom and repeatedly abused her over several hours. The mother hit her head on the ground and the father refused to let her get medical assistance. The mother alleges that the father said to the children that the mother would die that night and told them to say goodbye to her. The mother says that the father received ‘jail time’ as a result of these incidents;

   d)After the father was released from gaol, between June and November 2015, the mother facilitated time between the children and the father. Because the father was living between his sister’s home and his father’s home, the children would visit the father at both of these places. In about October/November 2015 the father is said to have moved to shared accommodation, and the mother continued to facilitate time, including overnight time. The mother says that at about this time the children starting making comments about not wanting to visit their father and started complaining about his treatment of them;

   e)The last time the children spent time with the father was between 31 December 2015 and 2 January 2016; and

   f)In January 2016 the father again breached the Apprehended Violence Order by ‘chasing’ the mother and one of the children around (omitted) in his vehicle.

   [11] This is a summary only

9. Annexed to the mother’s Affidavit is the transcript from the Local Court proceedings for the extension of the Apprehended Violence Order. During the hearing the father is recorded as having said:

   “Well, as the point of the AVO, protecting her in any way, your Honour, is complete, a complete joke (?) to me because at any time I’ve been told I can hire a private investigator to find out where she lives at any time I feel like, so if I ever really wanted to know where she lives, I’d just hire a private investigator and I can assure you, your Honour, I don’t want to know anything about her. I don’t want to know where she lives, I don’t want to know she exists whatsoever in my life.”

10. It is concerning to the Court that the father is prepared to openly state that the Apprehended Violence Order is a “complete joke” to him because he can at any time “hire a private investigator” to find out where the mother (and consequently the children) live. Indeed together with his history of breaches of orders (for which he was incarcerated), what he said to the Local Court Magistrate shows a lack of respect for Court orders.

11. Included in the parties’ evidence is an allegation of an altercation between the father and mother’s current partner in the Court precinct on the day of the Child Inclusive Conference interviews. The accounts of what occurred differ between the parties, but certainly indicate to the Court that there are some ongoing difficulties in the interactions between the father and those who live in the mother’s household.

12. The father’s criminal history[12] is not insignificant, particularly in relation to breaches of Apprehended Domestic Violence Orders and offences of violence. In summary:

    a)In August 1996 the father was convicted of common assault and fined;

    b)In September 2014 the father was convicted of common assault and received a three year good behaviour bond, relating to an incident on 15 January 2014;

    c)In September 2014 the father was convicted of contravening a prohibition or restriction in an Apprehended Domestic Violence Order as well as of common assault, relating to an incident on 7 April 2014. He received a three month custodial sentence to commence on 6 August 2014. The father appealed the sentence which was confirmed by the District Court in January 2015;

    d)In September 2014 the father was convicted of an assault occasioning actual bodily harm, stalking and intimidation and contravening a prohibition or restriction in an Apprehended Domestic Violence Order, relating to an incident on 6 August 2014. He was sentenced to a 12 month custodial sentence to commence on 6 November 2014 with a non-parole period of six months. The father appealed the sentence which was confirmed by the District Court in January 2015; and

    e)In March 2016 the father was convicted of contravening a prohibition or restriction in an Apprehended Domestic Violence order, relating to an incident on 23 January 2016. He was sentenced to a nine month custodial sentence which was suspended on him entering a section 12 bond for nine months.

    [12] Exhibit 1

1. Neither of the father’s Affidavits relied upon at the interim hearing set out the full detail of the father’s convictions nor the incidents in relation to which of those convictions related. It appears from the father’s material that his admission that he was sentenced to a term of imprisonment, relates only to the August 2014 breach of the Apprehended Domestic Violence Order. The father also says that he was “unfairly arrested on Monday, 25 January 2016 and been in jail until Friday, 18 March 2016.”

2. The police records indicate a much more sinister picture of the father’s behaviour. For example:

   a)In January 2014 it is alleged that the father ransacked the mother’s home, causing damage before taking hold of her throat and pushing her to the floor when she hurt her head. The father took the mother’s phone and car keys so she could not go to the hospital;

   b)In April 2014 the father attended the mother’s home in contravention of an Apprehended Violence Order and started jabbing the mother in the face with his fingers. The mother retaliated by punching the father in the face causing the father to “direct increased aggression towards” the mother;

   c)In September 2014 the father was served with a final Apprehended Domestic Violence Order, which was for a period of two years. In January 2016 the mother received text messages from the father which caused her concern and as a result of which she attended (omitted) Police Station to seek advice. The mother then blocked the father’s phone number on her phone. On 23 January 2016 the mother and one of the children were at the child’s high school when they saw the father driving past. The mother became very frightened that the father would follow her home particularly so because he did not know where the mother and the children lived. The mother called her partner to assist and ultimately the matter was reported to the police, with the father being arrested. Upon being interviewed by the police the father’s answers revealed admissions to the offence of breach Apprehended Violence Order however he said that he was in the area for the purpose of locating rental real estate.

3. Of course, the evidence of family violence remains untested and these are not matters the Court can make findings about at this interim stage. However, that does not mean that the evidence can be disregarded. It still needs to be taken into account in assessing what is in the children’s best interest, and particularly in assessing the risk of harm to the children.

4. The children attended upon Family Consultant Ms B for the purpose of a Child Inclusive Conference on 27 October 2017 where both of them were interviewed separately.

5. Ms B reports that both children “presented as somewhat nervous but engaged in discussion”. She says that both children did not consider the father to be a part of their family, albeit for different reasons. X reported that the last time she had spoken to the father on the telephone he yelled at her and he was in a “weird mood”.

6. Both children reported to Ms B concerns regarding the father’s mood and behaviour towards them when they had previously spent time with him. These included the father yelling and screaming at the children because he believed the mother had not told him about the events and activities (despite the mother having reportedly sent him text messages advising of relevant details); the father verbally abusing members of the public when the children were with him including making racist comments; the father holding/pushing X’s head to get her to look at a laser show and the father making derogatory remarks to the children about the mother, including that she is a liar and a deceiver.

7. X stated that she felt “helpless” when the father behaved in the manner described, and Y said that she felt “scared, like really scared” and that her heart beat really fast and that she got goosebumps. Both children also identified that they did not tell the father about their concerns regarding his behaviour because they were concerned about the consequences, such as him shouting at them and causing his behaviour to escalate.

8. X reported that during her parents’ relationship, she witnessed her parents going into rooms and closing the door, stating that she would bang on the door and hear screams which caused her to feel “scared”. Furthermore X stated that she worries about the mother if she is not back when she says she will be, if her car is not at home when she gets home or if she does not know where the mother is. X stated that she gets a “rollercoaster feeling”, that she feels “scared” and that she contacts the mother due to concerns that the father would follow and do something to the mother because she had not forced the children to spend time with the father. X also stated that she would feel betrayed if the mother forced the children to see the father because “she knows how much we don’t want to go”.

9. X stated that she feels she has to be careful what she says around the father, she reported feeling worried that the father gets so angry that she is not sure if he’s going to hurt her.

10. Y stated that she had “really bad butterflies” and “big goosebumps” when she saw the father due to concerns that he would take her from the mother.

11. Both children however identified they had positive memories of and positive experiences with the father, including the father taking them to the park, taking them bowling and playing with them. They both stated that the father can be nice at times, however X stated that there was “no in between”. X also said that the father’s behaviour could be “odd” saying that at times she did not know what he was talking about and he went off the topic.

12. Y said that she would feel “happy” if it was determined that she and X should spend no time with the father. Y stated that it would be “less scary but a bit scary still” if she and X were to spend supervised time with the father. She said that even when she is with the mother she feels scared when she sees the father and that the father sometimes quickly changes from nice to really scary. Y said that she would feel “scared, nervous and afraid” if it was determined that she and X spend unsupervised time with the father.

13. X said she would feel “relieved” and “less stressed” if it was determined that she and Y should spend no time with the father. In relation to supervised time X thought that the father would act differently if they were to spend supervised time with him. She was unable to consider the possibility that she and Y would spend unsupervised time with the father shaking her head and stating “I don’t know what I would do.”

14. After the making of the consent orders in November 2016, the children spent one period of time with their father, with such time being supervised by their older sister. Such time occurred on 11 December 2016. This means that in 2016, the children spent time with the father for three days in January 2016 and then for a few hours on 11 December 2016.

15. The father’s evidence in relation to the time on 11 December 2016 –shows that he was having discussions with both children in relation to them spending time with him. Such discussions indicate a complete lack of insight into the needs of the children, and that the father is placing his own needs above those of the children. For example the father asks the older child “What do you really want?” and when she tells him that she doesn’t want to see him, he then tells her to go away and sit with her older sibling so that he can “talk to Y”. The father’s evidence is that “then X started interfering and not letting me talk to Y in private”.  The father states that he had a conversation with Y and that as a result of that conversation “Y made it very clear to me that she wanted to continue to see me.”

16. It appears to the Court that Y may have been placed under undue pressure by the father in this conversation on 11 December 2016. This of course is a matter upon which the Court cannot make any findings, however, the concern for the Court remains – particularly when bundled together with the other concerns which have been identified throughout these Reasons.

17. Of some weight in the Court’s deliberations is the evidence contained in Exhibit 3, namely the documents produced under subpoena by Ms N, Psychologist. In a letter dated 26 August 2016, written to the Independent Children’s Lawyer, Ms N states:

    a)In session both children present a very clear trauma and fear response when their father is mentioned;

    b)X presents with symptoms consistent with Post Traumatic Stress Disorder;

    c)Both X and Y have expressed fear of their father; and

    d)Both children have expressed that they do not wish to have contact with their father, including on the phone.

18. Ms N’s report dated 28 October 2016 in respect of Y states:

    a)When the father is mentioned during sessions, Y goes into a “freeze response” and may actually dissociate on occasion;

    b)“Y presents with a clear trauma response in relation to her father, however is very keen to not be frightened anymore and to work therapeutically to reduce ‘fears and worries’. Y is aware that these ‘fears and worries’ are related to her father, his violence towards her mother and his aggressive and unpredictable behaviour when in the family. Y’s mood and demeanour can change quite significantly when she talkes (sic) about her current family situation, her mother’s new partner and baby sibling. Y brightens considerably and expresses a sense of happiness. Y also appears to have positive peer relationships and schooling experiences”

19. X particularly appears to be protective of Y; such inference being in part based on the evidence in the father’s case as to what occurred on 11 December 2016.  A further example is evident in Exhibit 3 tendered in these proceedings where Ms N reports to the Independent Children’s Lawyer her concern that the father has verbally abused X over the telephone because Y was refusing to speak with him on the telephone. According to Ms N “X appears to feel significant responsibility to placate her father and not upset him in order to maintain only her own safety, but also the safety of her sister."

The Court’s Determination

1. The children live with their mother, mother’s partner and siblings in a loving and caring environment. They appear to be adequately cared for with their emotional and physical needs being met by the mother. Not only has the mother been an engaged parent in terms of the children’s developmental and educational needs, she has been an engaged parent in terms of their emotional needs.

2. The evidence in its totality suggests that the children have a close, loving and trusting relationship with their mother, but not so with their father of whom they appear to be frightened. Even after months where the children were not spending time with their father, their fear of him does not seem to have abated.

3. The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations[13]. Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents. The Court must also take into account the additional considerations if relevant.

   [13] See s60CC

4. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, they are to spend with the father.[14]

   [14] M & M (1988) 166 CLR 69 at 77

5. As at the time of the interim hearing, the children had not spent time with their father since 11 December 2016, although they have had telephone communication with him.

6. Whatever orders are made with respect to time, they will have an impact on the children and their relationship.

7. It is likely that there will be significant negative impact on both children if they were to spend time with their father.

8. It is likely that there will be a less significant negative impact on both children if they were not to spend time with the father.

9. The Court is concerned as to how the children would cope if they were forced, by virtue of Court orders, to spend time with the father in circumstances where they both clearly express a wish not to do so and where they express a fear of their father.

10. As the Full Court made clear in A & A[15] the principles relating to risk of sexual abuse as stated in M & M[16] apply to other risks of harm to the child.  However, it must not be forgotten that the resolution of an allegation of abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.[17]

    [15] (1998) FLC 92-800; (1998) 22 FamLR 756

    [16] (1988) 166 CLR 69

    [17] M & M (1988) 166 CLR 69 at p76

11. As Her Honour Justice Ryan stated:[18]

    If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.[19]

    [18] Roberts & Banks [2011] FamCA 662 a

    [19] Referring to Johnson & Page (2007) FamCA 1235

12. As already noted, the issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[20] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[21]

    [20] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]

    [21] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]

13. Doing the best that it can on the untested evidence before it, and on the basis of the very few agreed facts, the Court finds that there exists an unacceptable risk of harm to the children if they were to spend any time with the father. The unacceptable risk of harm arises out of the children’s trauma and fear response to the mention of their father, their expressed and clear wishes not to spend any time with their father for reasons which were articulated by the children and their persistent fear of their father.

14. The father only seeks an order for time in respect of Y and time with X in accordance with her wishes.  A supervised setting such as a contact centre for an almost 10 year old is not conducive of a meaningful relationship.

15. It is the Court’s view that if Y was to spend time with the father in accordance with the orders the father impressed upon the Court were in the children’s best interest or even supervised time, it is likely that X too would go so as to ensure that Y was safe. This would be an unfair and unreasonable burden to place on X.

16. The father has to date taken certain steps to assist him parenting the children. However, notwithstanding the said completion of the Anger Management Course in November 2016 an the Keeping Kids in Mind Post-Separation Parenting Course in August 2016, the father on his own evidence, engaged in discussions with the children about whether they wanted to spend time with him in circumstances which do not appear to be appropriate. He still told his twelve year old daughter to give him “space” so he could speak in private with his nine year old daughter – in a setting where the children’s time with the father was, pursuant to the interim orders, to be supervised. The importance for the need for supervision and what supervision entailed seems to have been lost on the father.

17. The Court at present, and pending a full hearing, has significant concern that the father might not comply with any orders even for supervised time, and might put the children in a further situation of conflict and thus in harm’s way.

18. While there is some support in the evidence for an order for supervised time, on balance, the Court does not consider that such an order would be in the children’s best interest for all of the reasons expressed earlier.

19. It is important for the parties to remember that this is only an interim decision. A final hearing, with the evidence being tested, is yet to occur. The Court will then, hopefully, be in a position to make important findings of fact. At present the Court is taking a conservative and cautious approach, particularly in light of the matters identified by Ms N and the Family Consultant.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[22] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [22] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[23] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [23] s61DA(3)

3. The Court finds that the presumption of equal shared parental responsibility has been rebutted on the basis that there are reasonable grounds to believe that the father has engaged in family violence. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[24]

   [24] s61DB

4. However, neither party nor the Independent Children’s Lawyer sought an order for parental responsibility. It is not a matter that was raised by the Court during the interim hearing and consequently, no order for parental responsibility will be made at this stage. As such, it is the default position under the Family Law Act1975 which will prevail.

Conclusion

1. For all of the Reasons stated above, the Court finds that the orders at the forefront of these reasons are in the children’s best interest.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  9 June 2017