BERGERON & BERGERON

[2019] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERGERON & BERGERON [2019] FCCA 1236

Catchwords:
FAMILY LAW – Parenting – whether the father poses an unacceptable risk of harm to the children – whether the father’s time with the children should be supervised – whether the children have a ‘meaningful’ relationship with the father – inability to make findings on disputed facts  

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA

Cases cited:

M v M (1988) 12 Fam LR 606

A & A (1998) FLC 92–800.

Goode v Goode (2006) FLC 93-286

Napier and Hepburn (2006) FLC 90-303

Godfrey and Sanders (2007) FamCA 102

Mazorski & Albright (2007) 37 Fam LR 518

Tait and Dinsmore (2007) FamCA 1383

McCall and Clark (2009) 41 Fam LR 483

Marvel & Marvel (2010) 43 Fam LR 348

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Banks & Banks (2015) FamCAFC 36

Britt & Britt (2017) 56 Fam LR 526

Applicant: MR BERGERON

Respondent: MS BERGERON

File Number: SYC 7747 of 2018

Judgment of: Judge Morley

Hearing date: 29 March 2019

Date of Last Submission: 29 March 2019

Delivered at: Sydney

Delivered on: 23 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Schonell

Solicitors for the Applicant: The Norton Law Group

Solicitors for the Respondent:	Mr Skidmore of Phoenix Legal Consultancy
Solicitors for the Independent Children's Lawyer:	Mr Wilkins of Phillip A Wilkins & Associates

ORDERS

1. Leave be granted to the legal practitioners and the Independent children’s Lawyer, to inspect the material produced on subpoena by:

   (a)Medical Centre A by subpoena dated 8 March 2019; and

   (b)Medical Centre B by subpoena dated 8 March 2019.

2. Leave be granted to the parties to inspect the material produced by NSW Police pursuant to a subpoena dated 8 March 2019.

3. By consent, orders be made in accordance with the document titled “Minute of Consent Order” as marked “A”, initialled by me, dated today and placed with the Court papers.

4. All extant applications be adjourned to this Court on 14 May 2019 at 2:15pm for interim hearing (“the interim hearing”).

5. On or before 4:00pm on 8 May 2019 the solicitors for each party (or, if unrepresented, the parties themselves) forward to Chambers at [email protected] and each other party a brief case outline containing:

   (a)The precise orders sought;

   (b)A list of the documents to be relied upon;

   (c)If relevant, a brief chronology listing significant events;

   (d)The issues in dispute;

   (e)The main contentions (in light of the legislation); and

   (f)Any relevant case law.

6. The parties each file and serve, an updated Financial Statement and one consolidated Affidavit relevant to the interim hearing by no later than 4:00pm on 3 May 2019, and any further material filed after that date cannot be relied upon for the interim hearing without leave of this Court.

7. Judgment in respect of today’s interim hearing be reserved.

BY CONSENT THE COURT ORDERS THAT:

1. The father is hereby restrained by injunction from selling, transferring or otherwise dealing with the shared held on [C] Pty Ltd, except by agreement between the parties or an order of this Court.

THE COURT DIRECTS THAT:

1. All parties and legal representatives attend Court one hour prior to the interim hearing for the purposes of discussions.

2. All parties and legal representatives are directed to read the subpoena material prior to the interim hearing, and if a party is proposing to tender any subpoena material, they should ‘tab’ the relevant page/s prior to the commencement of the interim hearing.

THE COURT NOTES THAT:

(a)The Minute of Consent Orders does not have the signature of the parties, but consent was indicated by the parties to the Court.

(b)It is the intention of the parties and the Independent Children’s lawyer that a Minute of Consent Orders for a Chapter 15 Expert will be prepared and submitted to chambers.

(c)A party’s material will not be read until the Case Outline document has been received by Chambers in accordance with these directions.

(d)The parties are expected to adhere strictly to the standards set out in the Interim Family Law Proceedings Practice Direction (commenced 1 January 2018) regarding the conduct of interim parenting proceedings.

(e)The interim hearing will be limited to the following issues in dispute:

(i)Interim Spousal Maintenance; and

(ii)Interim Property.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7747 of 2018

MR BERGERON

Applicant

And

MS BERGERON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court relate to parenting issues, property settlement and spousal maintenance between the Applicant husband, Mr Bergeron born … 1983 and the Respondent wife, Ms Bergeron born … 1982. 

2. The parties commenced cohabitation on about … 2008, married on … 2011 and separated on a final basis on 19 December 2017.

3. The parenting issues relate to the five children of the parties; [V] born … 2003 and aged 15 years, [W] born … 2010 and aged 9 years, [X] born … 2013 and aged 6 years, [Y] born … 2014 and aged 4 years, and [Z] born … 2017 and aged one year and seven months, at the time of the interim hearing.

4. On 29 March 2019 an interim hearing took place relating to parenting issues only, being the time, if any, to be spent between the father and the children [W], [X], [Y] and [Z] and the conditions, if any, to be placed upon such time.

5. At the interim hearing the Applicant husband was represented by Mr Schonell of Counsel who made submissions on his behalf and provided to the Court a case outline document for the interim hearing.

6. The Respondent mother was represented by her solicitor, Mr Skidmore, who made submissions on her behalf.

7. The children were represented by the Independent Children's Lawyer, Mr Wilkins, who made submissions on his own behalf.

8. In these reasons I will, with respect intended, refer to the Applicant father as “the father" and to the Respondent mother as “the mother".

Procedural History

1. The proceedings were commenced by the father filing an Initiating Application on 4 December 2018 in which he sought final orders in relation to both property settlement and parenting issues and interim orders in relation to parenting issues.

2. The mother filed her Response on 11 January 2019 seeking final orders relating to parenting issues, and under the heading “Property Orders" sought an order “That pending exchange of financial disclosure, the mother be given leave to amend her application in relation to property orders."

3. The mother also sought interim orders relating to parenting issues, a purported property order in the same terms as her final property order, an order for interim property settlement by way of a lump sum payment to her of $230,000.00 by the father, and for “urgent spousal maintenance” to be paid by the father to her in the sum of $652.00 per week.

4. The Initiating Application was originally given a first return date of 18 February 2019, but on the Review Application by the mother being considered by Judge Boyle on 17 December 2018, the matter was listed for a first mentioned date on 14 January 2019 before her Honour. 

5. On 14 January 2019, her Honour listed the matter for interim hearing on 29 March 2019 at 10:00AM. Her Honour made an order that the parties attend a Child Dispute Conference on 22 February 2019, made an order for an Independent Children’s Lawyer to be appointed to represent each of the children, and made orders by consent that pending further order the children would live with their Mother and spend time with their father supervised by Contact Centre each alternate Sunday commencing 27 January 2019 from 2:00PM to 5:00PM, with the father to pay the costs of the supervised contact.

6. The interim hearing on 29 March 2019 was confined, as indicated above, to interim parenting issues, as the mother’s affidavit filed 11 January 2019, with her Response, did not provide any evidence upon which to base an interim hearing on the issues of interim property orders or urgent spouse maintenance.

7. On 27 March 2019, two days before the interim hearing, the mother filed an affidavit sworn 26 March 2019 in which at paragraphs 37 to 41 she gives evidence going to the issue of spouse maintenance and in paragraphs 20 to 36 she gives evidence relating to the issue of interim property order.

8. Further, the first occasion on which the mother filed a Financial Statement was on 27 March 2019, again, two days before the interim hearing.

9. In the Case Outline prepared by Mr Schonell for the father for the purpose of interim hearing, Mr Schonell indicated that the father opposed interim hearing of any financial matters in circumstances where he had not had the opportunity to properly consider the evidence relied on by the mother and obtain advice.

10. In the event the issues of interim property settlement order and urgent spouse maintenance were not pressed by the mother at interim hearing on 29 March 2019, those issues now being set down for an interim hearing at 2:15PM on 14 May 2019 pursuant to an order made on 29 March 2019.

The Parties’ Proposals

1. There is some difficulty in accurately identifying the real nature of the applications before the Court on interim hearing on 29 March 2019, the only application for interim orders before the court on behalf of the mother being that contained in her Response filed 11 January 2019 in which she sought that, pending the release of a joint Expert Report, the children live with her and spend time with their father each alternate Sunday from 2pm to 5pm supervised by Contact Centre or an agreed alternate supervisor, and that the cost of the supervision be met by the father.

2. The mother also sought an order for the appointment of an Independent Children's Lawyer

3. In the main, the interim orders sought by the mother in her Response were made by consent on 14 January 2019.

4. The father at interim hearing relied on orders set out in a handwritten minute of orders tendered to the Court on his behalf by Mr Schonell and marked as Exhibit ‘A1’. In that minute he sought that the interim orders made 14 January 2019 be amended so that the father spend time, on each occasion supervised by Contact Centre, on a fortnightly basis with [W] on Sunday for three hours from 3pm until 6pm at the Suburb D Shopping Centre, and fortnightly with [X], [Y] and [Z] on Saturday from 12:00PM until 3:00PM at Suburb E Playground or Suburb F Play Centre.

5. The father sought that Contact Centre undertake all changeovers at the start and the end of his time with the children at the mother’s place of residence.

6. The father also sought a notation that the mother do all acts and things to encourage [X] to attend pursuant to orders and that [X] attend only if he wishes so to do.

7. The father sought an order in the minute that Ms F be appointed pursuant to Chapter 15 of the Family Law Rules “to prepare a family report in the matter”. I note that chapter 15 of the Family Law Rules does not apply to the proceedings as they are being conducted in the Federal Circuit Court of Australia, but that Division 15.2 of Part 15 of the Federal Circuit Court Rules 2001 would apply. The father also sought an order that the mother keep him informed by email in respect of the children's health and education.

8. In any event, at hearing it was made clear on behalf of the father by Mr Schonell in submissions that the father sought time on alternate Sundays with [W] between 3pm and 6pm and time on alternate Saturdays with [Y] and [Z] between 12pm and 3pm, all supervised by Contact Centre at the father's expense, with [X] to join in with [Y] and [Z] should he so choose. It was made clear on behalf of the father that he was not seeking any orders for time with [V].

9. On interim hearing it was indicated by Mr Skidmore for the mother that she was seeking that [V] be discharged from the order made by consent on 14 January 2019 for “the children" to spend time with the father supervised by Contact Centre each alternate Sunday from 2:00PM to 5:00PM, that the said order continue in relation to [Y] and [Z] and that the said order be “suspended” in relation to both [X] and [W] pending preparation and release of an Expert's Report.

10. It was further indicated for the mother that in the event that either or both of [X] and [W] were still to be included in an order that they spend time with the father then that time should occur on each alternate Sunday, with [Y] and [Z] between 12 noon and 3pm and with [W] and [X] between 3:30pm and 6:30pm.

11. The mother sought that Contact Centre undertake all changeovers with the mother at or near the venue where the father’s time with the children would occur.

12. Mr Wilkins, as the Independent Children's Lawyer, indicated his view that [V] should be discharged from the order made 14 January 2019 relating to the children spending time with the father and not be included in any alternate order. Mr Wilkins did not support the same suspension of the said order so far as it related to [W] and [X], based on the father's position that he was not insistent upon [X] attending but that [X] could attend and join in with the other children, [Y] and [Z], if he so wished.

The Evidence of the Father

1. The Father relied on in his affidavit sworn 20 March 2019 and filed that day (though erroneously stated on the cover and in the jurat to have been sworn on 20 March 2018). Prior to the interim hearing, and again subsequently, I have read and carefully considered all the contents of that affidavit.

2. As it was agreed by the parents that on an interim basis [X] should be free to either join in with the other children spending time with his father or refrain from doing so as he chooses, the real issue for decision in the interim hearing was whether or not an order should be made that the father spend time with [W] and, if so, for what frequency and duration and on what, if any, conditions. Accordingly, I concentrate on the material in the father's affidavit relevant to that issue.

3. In his affidavit from paragraphs 5 to 28, the father gives his evidence of the parents co-parenting of the children during the period of cohabitation, but also relates certain incidents that he asserts are occasions when false allegations were made to authorities by the mother against him, one in the United Kingdom in about June 2012 relating to the mother being burnt by spilt tea and the other relating to alleged reports in January 2010 by the mother to health professionals that the father was greatly “over chastising" [V].

4. In paragraphs 29 to 35 the father gives evidence of his involvement in the parenting of the children following the parties’ separation on 19 December 2017. It is his evidence that, in that period, he spent regular time with the children, including overnight time.

5. In paragraph 37, the father gives evidence of an incident alleged to have occurred on 25 August 2018 between the father and the child [X], when [Z] and [X] (only) were spending time with their father on 24 and 25 August 2018. The father's evidence includes the following:

   Whilst I was reading the post, [X] came over to me and jumped onto my lap. He put his head between my face and the phone. I said to [X] “wait a minute” and gently moved him out of the way. [X] then jumped back onto my lap from the edge of the sofa. I gave him a hug using my right arm around his shoulders. When was [sic] finishing reading the last paragraph, [X] asked to be let go. I let go of him moving my arm out of the way. He got up and quickly lost balance. As I tried to catch him and cushion his fall, the side of [X]’s head collided with my hand as I tried to stop the fall. I failed to hold his weight and he ended up on the floor. He cried for a minute or so and I consoled him with a cuddle. He then went for a nap. When he woke up from his nap he seemed fine.

6. The incident referred to in the father's affidavit led to charges being brought against him by New South Wales Police of assault occasioning actual bodily harm and common assault, with [X] as the alleged victim. The father deposes at paragraph 41 of his affidavit that the matter went to a defended hearing at Suburb G Local Court on … 2018 and that the charges were dismissed.

7. The father did not spend any time with the children between 25 August 2018 and the resolution of the matter in the Local Court at Suburb G on … 2018. Following that resolution the father filed his Initiating Application on 4 December 2018.

8. The orders made by consent in the Court on 14 January 2018 provided for the father to have supervised time with all of the children each alternate Sunday from 2pm until 5pm, supervised by Contact Centre, “until the matter could be determined on an interim basis by the Court."

9. The first occasion after 25 August 2018 that the father spent time with any of the children occurred on 13 January 2019, the day before the consent interim orders were made. On that occasion he spent time with all of the children except [V], supervised by Contact Centre, at the Suburb E Playground. [X] took part in that visit. A report in relation to that visit was provided by Contact Centre and is annexure "E" to the father's affidavit. On page 5 of that report the end of the occasion is described by the supervisors as follows:

   Ms H and I began to gather everyone at 4:55 PM. I walked over to [W] to let her know it was time to leave. [W] walked back over to Mr Bergeron.  [Z] was placed into the stroller with the help of Ms H and [W]. [Y] and [X] gave Mr Bergeron a hug goodbye and kiss.  [W] gave Mr Bergeron a tight hug.

   We all walked to the entrance of the playground. [X] said "bye daddy, lift me" and Mr Bergeron lifted him into his arms and gave him a hug. Mr Bergeron then gave [Y] a hug goodbye. [W] gave Mr Bergeron another tight hug goodbye appearing that she did not want to leave.

   Ms H pushed [Z] in the stroller as [W], [X], [Y] and I walked across the park to where Ms Bergeron was waiting.

10. On 23 January 2019 the father spent time with [W] alone, supervised by Contact Centre. In the Contact Centre report for that occasion the supervisors note the following –

    [W] and I walked to the complex entrance and she pointed to Mr Bergeron and ran the short distance over to give him a hug.  Mr Bergeron picked [W] up, kissed her and wished her a happy birthday. He said he was so happy to see her.  Mr Bergeron and I exchanged greetings and we walked through the complex.

11. In the course of the report the supervisors note the following –

    When [W] had finished eating, Mr Bergeron paid and we walked through the complex.  [W] walked in front of Mr Bergeron, but put her hand out behind her and Mr Bergeron held it.

12. Toward the end of the visit the supervisors note the following –

    After the game, Mr Bergeron and [W] packed up and [W] asked Mr Bergeron for a piggyback. He helped [W] onto his back and we walked to the car.  [W] and Mr Bergeron discussed when they would [sic] each other again and what they would do together.  Mr Bergeron asked about her birthday plans and [W] said she had plans with family and friends.  Mr Bergeron wished her a happy birthday.

    At the car, [W] hugged Mr Bergeron and he gave her a kiss on the head and a hug. [W] asked Mr Bergeron what he was doing when he got home and Mr Bergeron said “Some duties." [W] walked to the side of the car with the booster seat and then return to Mr Bergeron, and he said goodbye, and [W] again walked back and they hugged again.  Mr Bergeron said he would miss her and [W] said she would see him soon and secured herself in the booster seat.

13. The father annexed the Contact Centre report from the next occasion of his time at the children under the orders, being Sunday, 27 January 2019 at “Suburb J” Play Centre. The summary at the start of the report notes –

    The handover took about thirty five minutes. [W] was undecided and teary, eventually agreed to attend, but then returned to her mother after greeting her father

    [W], [V] and [X] did not want to attend the visit and see their father, and there was [sic] some additional issues relating to a doctor’s certificate regarding [X].

1. On page 4 of the report the supervisors report the following occurring at the start of the occasion, attended only by [W], [Y] and [Z] –

   Mr Bergeron was inside the entrance and [Y] ran to him and said “daddy, daddy!" and Mr Bergeron bent down and hugged and kissed [Y], and [Y] reciprocated. Ms K and I greeted Mr Bergeron. [W] approached the father and cried, and she told him she wasn't sure whether to stay or go and Mr Bergeron said she could do whatever she wanted and either was okay.

   [W] deliberated and said she didn't know what to do and wanted someone to make the choice for her. Ms K and I reflected on their options, and ultimately encouraged her to do what felt right for her.

   After 5 - 6 minutes, [W] decided to return to her mum and she tearfully kissed her dad goodbye. I said goodbye to everyone and walked with [W] to Ms Bergeron.

2. The next occasion of the father's time with any of the children under the order occurred on 10 February 2019, and the father annexes to his affidavit the Contact Centre report of the occasion.  In the summary at the start of the report the supervisors indicate:

   ….[V], [W] and [X] were adamant about not attending the visit, and only [Y] and [Z] attended.

   [Y], upon seeing Mr Bergeron, ran to her father and they had big hugs.  [Z] appeared happy, smiling upon seeing Mr Bergeron.

   Mr Bergeron appeared to be very positive when saying goodbye to [Y] and [Z], and he asked if [W] would come and say goodbye to him. At the handover I asked [W] and she was very happy too [sic], and greeted Mr Bergeron warmly.

3. In the final paragraph of the report the supervisors report:

   Upon seeing Mr Bergeron, [W] ran into his arms and they hugged for a few minutes. [W] told Mr Bergeron that she will probably come to the next visit. [W] hugged Mr Bergeron one more time and we walked back to the car.

4. The next occasion occurred on 24 February 2019, and the father annexes the report from Contact Centre to his affidavit. On this occasion, again, only [Y] and [Z] spent the time with their father, [V] and [X] refused to interact with him at all and [W] refused to spend the time with him, but the following is reported by the supervisors:

   [W] said she meant to say that she wanted to come with me to say hi to her dad but didn't want to stay for the entire time. I asked whether she was sure and she said yes and she also asked why we were at this venue and not Suburb J Play Centre. I said she could discuss that with dad and we could walk over together and her Mum would wait for her to walk back across the path.

   Ms Bergeron put [Z] in the pram and she said that there were jumpers and drink bottles for the children. [Y] held onto the pram and I pushed it, and [W] walked beside us.

   [Y] saw her dad first and she ran up to say hello. He scooped into his arms and hugged her, [W] ran up and she hugged Mr Bergeron and he hugged her back.

   Ms K/Contact Centre arrived and I advised the boys weren’t attending and perhaps she could walk [W] back when she was ready, and we walked to Mr Bergeron.

   [W] said she’d be happy to meet up with her dad at other venues not a kids’ playground and Mr Bergeron said he'd look into it.  They kissed and hugged goodbye and Ms K walked [W] back to Ms Bergeron.

5. The next occasion occurred on 10 March 2019, and only [Z] ended up spending time with the father.  The supervisors relate, in the Contact Centre report annexed to the father’s affidavit, that after the occasion had ended and in the course of returning [Z] to the mother, the following occurred:

   I asked [W] if she would like to say hello to Dad, and she said no and she had told the other guy (Mr L) why she did not want to go.

   I said I don't know why, and Mr L is not here and your dad said he was confused as he said you asked him on the last visit that if he changed the venue to here that you would attend.

   [W] said fine and she hopped out of the van and headed toward the Play Centre. I called her as I had [Z] in my arms and said to hold up and she kept on walking quickly until she got closer and then slowed down and returned to me.

   We arrived at the door together and [W] greeted Mr Bergeron and put her arms around him, and Mr Bergeron said ‘hi’ and asked her how she was, and she said ‘good’. Mr Bergeron asked if she would like to do something different like … or a movie and he said would you prefer just two of us and she said yes.  Mr Bergeron said OK and we will organise that and let's do that, and he took three of the Disney letters from his pocket and said he got them from Coles and [W] could give one to [Y] and [X] if you are collecting them.

   [W] said thanks and she gave him another hug and said ‘OK I'll go now’ and he kissed her head and he said goodbye to [W] and [Z] and thanked me, and we exchange goodbyes.  I carried [Z] and [W] walk with me and we proceeded to the van.

   As we walked [W] said ‘Now I feel bad as I told him I would go and I don't want to go’. I asked [W] why she didn't want to go and she said ‘because I feel angry, and I feel angry when I am with him, and I don't want to be like him’.

6. That was the last occasion of the father spending time with the children prior to the interim hearing.

7. The father deposes at paragraph 55 of his affidavit:

   The visits have continued to be disruptive and appear not to be working.  I am concerned that Ms Bergeron is providing the children with a choice as to whether or not they need to spend time with me, as opposed to appropriately encouraging them to spend time with me pursuant to the orders

8. At paragraph 56 with father deposes:

   The reports prepared by Contact Centre suggest that changeover is particularly distressing to the children.  Changeover often takes a considerable amount of time

9. At paragraph 58 the father deposes:

   I am required to pay the cost of two supervisors being present, given the amount of children.  This cost is significant. Even though all the children do not attend time, I am not informed about this until the absolute last minute, and have to meet the cost of both supervisors regardless

10. At paragraph 63 of the father's affidavit he presents, in a table form, a reply to certain paragraphs of the mother's affidavit sworn by her 11 January 2019.

11. In the mother's affidavit read by her on interim hearing she includes, as an Annexure "A", her affidavit of 11 January 2019 with amendments thereto shown by underlining. The wife then includes as Annexure "B" an updated parenting and financial affidavit. 

12. I have read and considered all of the material contained in paragraph 63 of the father's affidavit, reading the same in conjunction with Annexure "A" to the mother's affidavit sworn 26 March 2019. 

The Evidence of the Mother

1. On interim hearing the mother relied on her “consolidated affidavit" sworn 26 March 2019, an affidavit by Ms M sworn 25 March 2019 and an affidavit by Ms N sworn 24 March 2019.

2. In her affidavit, the mother asserts that the parties separated for the first time following a domestic violence incident in May 2003. In the context, that separation was a breach in a non-cohabiting relationship, the mother asserting that the parties first began to live together in … 2008, some five years after the birth of their first child, [V].

3. The mother deposes that the parties separated on a final basis in December 2017 and that following separation she continued to live with the children in the former matrimonial home.

4. The mother deposes in paragraph 7:

   [7] Following separation, Mr Bergeron saw the children by agreement under 25 August 2018 when an incident occurred when he was looking after [X] and [Z] at his unit to [sic] Saturday night.  He was charged with assault occasioning actual bodily harm and common assault on [X] who returned from contact with facial injuries as well as a large ‘egg’ like bruise on the back of his head. He disclosed to me and Cst Mr O of the Suburb P Child Abuse unit that he had been strangled and hit by Mr Bergeron; that Mr Bergeron was ‘hugging to tight’ and hit him to Ms Q (his head teacher); and that he had been strangled, held too tight around the neck and hit to Ms M. Mr Bergeron was charged on 4 September 2018 and all contact between him and the children ceased on 28 August 2018 when a police initiated ADVO was taken out prohibiting it. I understand that FACS were notified and they have an ongoing child protection case.

   [8] Mr Bergeron pleaded not guilty and required [X] to give evidence in the hearing.  That occurred on … 2018 at Suburb G Local Court. The Magistrate indicated that [X]'s evidence at the trial was not sufficient to establish the charge beyond reasonable doubt and the charges and AVO were dismissed.  I was not provided with a brief of the Police evidence.

5. Between … 2018 and 13 January 2019 the mother deposes to negotiations between the parents’ solicitors that culminated in the arrangement for the occasion when the father spent time with all of the children except [V] from 2pm until 5pm on 13 January 2019, the day before the first return date of the father's Initiating Application filed in the court on 4 December 2018.

6. In paragraph 13 the mother deposes:

   Throughout my relationship I have suffered domestic violence from Mr Bergeron in various forms. He has physically been violent with me including in front of the children. He has belittled and denigrated me both when we are alone and in front of the children. He has been controlling in relation to finances, the friends that I can keep and the medical appointments I and the children attend, obstructing some appointments or preventing them happening.

7. In paragraph 14 the mother deposes:

   Mr Bergeron has also been unable to control his temper and violence in relation to the children as well as manage their needs when in his care.  Mr Bergeron has smacked and hit [V], [X], [Y] and [W]. He has pushed the children.  He has done this on multiple occasions. Mr Bergeron has yelled at and sworn at the children and me.

8. I have included these paragraphs in these reasons despite them being in the nature of generalisations. In this regard I note the decision of the Full Court of the Family Court of Australia in Britt & Britt.[1]

   [1] Britt & Britt (2017) 56 Fam LR 526

9. Later in her affidavit the mother gives some specific detail of incidents that fall within the definition of family violence in section 4AB of the Family Law Act 1975, being incidents of family violence that she asserts were perpetrated by the father, summarised as follows:

   a)In paragraph 16, a “child protection case" was established in 2010 by social services in the United Kingdom “due to concerns of domestic violence, Mr Bergeron’s chastisement and bruising of [V] and making him drink mouthwash, force feeding [W] and my mental health as a result";

   b)In paragraph 17, the father refused to allow the mother to take the child [Z] to an appointment with a paediatrician in October 2017 relation to her being underweight;

   c)In paragraphs 7 and 18, the incident on 25 August 2018 between the father and [X] in which it is asserted by the mother [X] suffered quite significant bruising;

   d)In paragraph 30, the father holding [W]'s jaw when she was a baby and force-feeding her and doing “the same with [Z]";

   e)In paragraph 31, at New Year’s in 2011 holding [V]'s head underwater in the bath “for a long time";

   f)In paragraph 38, on 19 November 2017 the father failed to apply sunscreen to [Z], as a result of which “[Z] was severely sunburnt and obviously in pain, requiring pain relief several days. The skin blistered and fell off";

   g)In paragraph 40, “even when on family trips Mr Bergeron will become very frustrated and angry, yelling at the children and pulling them by the arms when they misbehave";

   h)In paragraph 42, “He has told [the children] that they were "mistakes", especially [V] and has told [V] that [Z] and [X] should have been killed before they were born which [V] has repeated to them";

   i)In paragraph 46, In … 2003 in the United Kingdom when the mother was pregnant with [V] she was pushed down a flight of stairs by the father resulting extensive bruising. The mother deposes that this incident led to a separation of the parties relationship and that they did not resume their relationship until 2008 when the mother initiating contact with the father;

   j)In paragraph 48:

   As our relationship continued there were incidents that became more frequent of Mr Bergeron losing his temper with me and hitting, pushing, pushing into furniture and walls, putting his hands around my throat and pulling me by the hair. I would usually have bruises as a result of these incidents.

10. In paragraphs 51 and 52, between May 2015 and July 2017 the mother was:

    Hit on my body and arms on multiple occasions. I have difficulty recalling the exact times and circumstances but would attend work with visible injuries such as bruising on my arms and legs. On one occasion Mr Bergeron struck me with his belt on my back and it left an in-print on my back. On another occasion I recall being held around my throat and bruising having to be covered up afterwards with scarfs

11. In paragraph 53:

    In June 2016 Mr Bergeron …… hit me multiple times, giving the black eyes and heavy bruising my arms and body.  There were also occasions when Mr Bergeron insisted I have sex against my wishes

12. In paragraph 60:

    During 2017 ….. [W] and [X] reported to me that [X] had had his throat ‘stomped’ on by Mr Bergeron then been picked up by him and that [X] had been thrown into a door frame of his room. Mr Bergeron then picked up [X] and threw him on his bed.  [X] had bruises on his body neck and head as result. Both children appeared very scared when telling me about this incident

13. The above is not an exhaustive list of all the family violence incidents asserted by the mother to have been perpetrated by the father within the family, and I have read and considered the whole of the contents of the mother’s affidavit.

14. The “updating” part of the mother's affidavit relied upon by her in the interim hearing, Annexure “B”, so far as it relates to the parenting issues in the interim hearing, contains the mother’s evidence about the children's conduct in the period between the first occasion of supervised contact between the father and the children (not including [V]) on 13 January 2019 and the visit on 10 March 2019.

15. Of particular significance is paragraph 11 of that part of the mother's affidavit:

    I had asked [W] if she wanted to have some special time with her dad and her own for her birthday in …. She refused a number of times but I asked her after a few days and eventually she agreed.  [W] saw Mr Bergeron on … and came back settled and happy from it

16. The mother deposes that she has commenced appointments for [X] with Ms R, a child specialist psychologist. The mother asserts that she has been advised by Ms R that:

    [X] will require long-term care

17. In paragraph 17 the mother deposes:

    I do not oppose contact between Mr Bergeron and the children but at the moment I am concerned that the benefit of maintaining his relationship with the three older children is outweighed by the distress and fear that contact causes them.

18. In paragraph 43 of the mother’s affidavit she provides some response, though not a complete response, to material in the father's affidavit sworn 20 March 2019, relied upon by him at the interim hearing.  I have read and considered that part of the mother’s affidavit.

19. The mother relied at interim hearing on an affidavit by Ms N sworn 24 March 2019. Ms N deposes that she has known the mother since 2014 and that she employed the mother between May 2015 and July 2017 and that during that time, but on non-date specific occasions, she observed bruising on the mother's arms or legs and that the mother asserted to her that the bruises were caused by the father.

20. Ms N deposes that on an occasion the mother showed her bruising on her back:

    Which was formed the shape of a belt, with an imprint of the belt buckle part of the bruise

21. Ms N recounts in some detail an incident on 26 June 2016 when she observed bruising on the mother and that the mother had a black eye, was crying and shaking, and was taken by Ms N to Medical Centre A. Ms N deposes:

    She told me she had been raped and attacked by Mr Bergeron

22. The balance of the affidavit relates further similar incidents.

23. At the interim hearing the mother also relied on the affidavit of Ms M sworn 25 March 2019. The part of the affidavit containing specific evidence is in paragraph 9 and includes a transcription of a conversation between Ms M and [X] on the evening of 25 August 2018 relating to the incident between the father and [X] asserted to have occurred while [X] and [Z] were in his care over 24 and 25 August 2018.

24. I have considered Exhibit A2 tendered on behalf of the father, which was a printout of a series of emails occurring on 7 September 2018 between the mother and Ms Q, the head person of the school being attended by at least [X] and [W]. 

25. It was submitted by Mr Schonell on behalf of the father that the emails imply the possibility that the family's domestic violence issues had been discussed by Ms Q either with, or in the presence of, [W].  I find that none of the emails are indicative of the implication submitted.

26. I have also considered Exhibit A3, being a file note dated 27 August 2018 extracted from the records of School S, the school being attended by at least [W]. 

27. It was asserted by Mr Schonell in submissions that the person referred to as “Ms Bergeron" in the file note is Ms Bergeron, and that the person referred to therein as “Ms Q” is Ms Q, the head person of the school.

28. The file note records questioning by Ms Q of Ms Bergeron about possible family violence against Ms Bergeron by her “husband Mr Bergeron". 

29. It notes that Ms Q said to Ms Bergeron:

    I can see that he has hurt your son

30. It was submitted by Mr Schonell that the incident being referred to in the file note, by implication from the date of the file note and the content of the conversation, is the incident between the father and [X] on 25 August 2018. The submission made by Mr Schonell in relation to the document was the same as for Exhibit A2, that it can be taken to imply that matters relating to family violence were discussed between the head person of the school and the mother in circumstances where the child [W] could have been present. I do not accept that the document raises that implication. 

31. I have also considered the Exhibit A4, being specifically indicated parts of the bundle of documents produced on subpoena by the Clinical Manager of the Clinic T, in relation to therapy undertaken at that centre with the child [W]. In submissions, Mr Schonell drew the Court's attention to Progress Notes dated 12 February 2019:

    Report was made to FACS in regard to [W]'s disclosure of being witness to her father physically abusing her little brother [X]

32. If this refers to the incident on 24 - 25 August 2018 between the father and [X], on all the evidence it was not an incident witnessed by [W]. It can be a reference to an incident alleged by the mother to have occurred in 2017 as recited in paragraph 60 of her affidavit, as allegedly reported to the mother by [W] and [X]. 

33. Also attached to that bundle is a Play Therapy Session Summary dated 11 March 2019 in which [W] is quoted as saying:

    I am so sad, I want to see my dad, but the caseworker lady will think I've been lying about [X] if I say I want to see him 

34. Significantly, the session postdates the occasions following 23 January 2019 when [W] refused to take full part in the occasions of supervised time with her father pursuant to the orders. 

35. I was also referred to a Play Therapy Session Summary dated 4 March 2019 in which comment by [W] is recorded by the therapist, Ms U:

    Once we had finished this play [W] sat on the floor and was talking to me in an angry voice, she was telling me that it was my responsibility to be talking to the courts about her parents’ case.  It seemed that she had been coached on what to say in our session, and it has felt like this for the last couple of sessions with [W]

1. I was also referred to Play Therapy Summary dated 11 February 2019:

   She explained she had been wanting to tell someone for long time. She shared her feelings of being scared and she felt that her dad was always mean to [X]

2. Accompanying the Summary document is a drawing reported to have been done by [W] illustrating a person with an obvious angry face labelled as “Dad" in the unmistakable action of throwing a smaller person labelled as ‘[X]". Between them are the words “dad Thow [X] into room". At the bottom of the picture is a tall person with a leg standing on a shorter person and the words “then trod on [X]".

3. Finally, in the bundle I was referred to, a document dated 17 December 2018 entitled “Review With Parents/Carers", includes the observation by the therapist Ms U:

   [W] was excited to be seeing her father on the weekend

4. Under “Additional comments/discussions” is: 

   Family court have decided that [W]'s father can now have short supervised visits with the children on the weekend.  [W] is really happy with the decision, but her mother Ms Bergeron does not want Children to see him after the assault on [X] her son took place

5. I have considered the material in Exhibit A5 being the documents produced on subpoena by the Clinical Manager of the Clinic T in relation to [X], and in particular, the document entitled ‘Play Therapy Session Summary dated 12 September 2018’ by the therapist Ms AA that includes the quote from [X]:

   I used to like my dad but not anymore, he’s mean, he tried to strangle me

The Issues

1. On interim hearing, the issues for determination eventually became the following:

   a)Whether the child [W] should be removed from the order made 14 January 2019 for the father to spend time with “the children” each alternate Sunday from 2pm to 5pm and there be no order for the father to spend time with [W] (as proposed by the mother) OR that there should be an order for the father to spend time with [W] separate from the other children for a period of three hours, still supervised by Contact Centre (as proposed by the father);

   b)Whether changeovers should occur as they have been since the orders of 14 January 2019, by the mother delivering the children to the supervisors from Contact Centre at or near the relevant venue where the father will spend time with the children (as proposed by the mother) OR occur by Contact Centre collecting the children from the mother's place of residence and conveying them to the venue for spending time with the father and then returning the children to the mother's place of residence at the end of the father’s time with the children (as proposed by the father);

   c)Whether there should be a specific order for the child [X] to spend time with the father or leave it up to [X] to decide if he will spend time with the father in company with [Y] and [Z] on any particular occasion.

Changeovers

1. In relation to the issue between the parents as to how and where changeovers at the start and end of the father's time with any of the children should be effected, I have considered all of the material contained in the reports prepared by the supervisors from Contact Centre annexed to the father's affidavit

2. I find that it is in the best interests of the children for the changeovers to take place as they have been taking place, by the mother bringing the children who are to spend time with the father, to the venue where time is to be spent, and there delivering the children to the supervisors, and by the mother collecting the children from those supervisors at that venue at the end of the father's time.

3. I find, on the basis of the material contained in the said supervision reports, that there is a greater chance of the children, and in particular [W], staying to spend time with the father if they have already been conveyed by their mother to the place where the time is to take place before they pass into the care of the supervisors.  I consider that this is the only step available outside of the therapy that has been provided to him that is a possible step toward [X] joining in with [Y] and [Z] and spending time with his father, given that at 6 years of age he will more than likely be accompanying his mother and siblings to that changeover at the start of their time.

4. Ultimately, the issue referred to above, relating to [X]'s time with his father, was resolved at the interim hearing by a consent agreement between the parties that [X] be "taken out" of the order made 14 January 2019 and that it be left to [X] to decide from time to time if he wishes to spend time with his father by joining in with [Y] and [Z] on their occasions.

The Law

1. In Goode v Goode[2] the Full Court suggested that in an interim application relating to parenting issues the Court should follow the framework set out in paragraphs 81 and 82 of the judgment:

   [2] Goode v Goode (2006) FLC 93-286

   [81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [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.

2. During the interim hearing the parties reached agreement as to the appropriate order to be made in relation to [X]'s time with his father and that no specific order should be made in relation to [V] spending time with his father.

3. The only agreed and uncontested facts are those found in the reports compiled by the supervisors from Contact Centre following each occasion of the father spending time with any of the children, and the material referred to above in Exhibits A4 and A5.

4. Most of the facts contained in the parties’ affidavits are in dispute between them.

5. In Marvel v Marvel[3], the Full Court referred to the difficulties encountered by Courts in making findings on disputed evidence in interim hearings:

   [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.

   [3] Marvel v Marvel (2010) 43 Fam LR 348

   [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

6. In George & George[4], the Full Court cited Deiter & Deiter[5] in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

   [4] George & George [2013] FamCAFC 182

   [5] Deiter & Deiter [2011] FamCAFC 82

7. In Deiter, the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.


8. In this matter, the mother asserts risk to the children of harm consequent upon the father's alleged history of physical, verbal and controlling family violence. The mother and her supporting witnesses asserts that this has been directed against her, whilst the mother and her supporting witness Ms M, asserts it to have been perpetrated by the father against the mother and the children. In particular, against [V] and [X] on more than one occasion, and against [W] and [Z] when they were infants and the father was “force-feeding" them.

9. The mother asserts a risk to the children in being in the care of the father consequent upon his lack of appropriate anger management.

10. The mother asserts a risk to the children in the care of the father consequent upon his asserted failure to adequately care for and parent the children on occasions by leaving them unattended, including in crowded public places such as the Sydney Royal Easter Show.

11. As indicated in the above authorities it is not open to the Court to make findings of fact in relation to the mother's allegations relating to family violence perpetrated by the father against her and against children. The elements of some corroboration provided by the evidence of Ms N and Ms M must sound a note of caution for the Court at the interim stage and, noting that the orders made on 14 January 2019, specifically:

    That the children spend time with the father supervised by “Contact Centre For Children" each alternate Sunday commencing 27 January 2019 from 2 PM to 5 PM

12. And:

    The father is to pay the costs of supervised contact

13. Given that such orders were made by consent, the Court must act with some caution in the interests of the children still proposed by the father to be the subject of specific orders for spending time with him, specifically, [W], [Y] and [Z].

14. Section 60B of the Family Law Act 1975 sets out the objects of and principles underlying Part VII, and in considering each of the Primary and Additional considerations in section 60CC I have been guided by those objects and principles.

15. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to children the court must regard the best interests of the children is the paramount consideration.

16. Section 60CC of the Act provides that in determining what is in the children's best interests the court must consider the matters set out in subsections (2) and (3) and must note the weighting requirement in subsection (2A)

17. The Full Court said in Banks v Banks[6], at paragraphs 46 to 52:

    [46]  As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

    [47]  It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

    [48]  Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

    [50]  When it is obvious that the findings made as to some of the     s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

    [51]  In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

    [52]  In the following discussion, we will detail the most significant s60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

    [6] Banks v Banks (2015) FamCAFC 36

18. The primary considerations in section 60CC are:

    a)Consideration of the benefit to the children of having a meaningful relationship with both of their parents; and

    b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.

19. Subsection (2A) requires that in applying the primary considerations, the Court is to give greater weight to the need to protect the children from physical or psychological harm over the benefit to the children of having a meaningful relationship with both of their parents.

20. In Godfrey and Sanders[7] Kay J, sitting as a Full Court, said at paragraph 33:

    The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

    [7] Godfrey and Sanders (2007) FamCA 102

21. Later, at paragraph 36, Kay J said:

    It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

22. In Mazorski & Albright[8], Brown J considered ordinary definitions of the term “meaningful”, and observed:


    [26]  What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “importance” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 


    [8]Mazorski & Albright (2007) 37 Fam LR 518

23. In Tait and Dinsmore[9], Cronin J considered the distinction made by Kay J in Godfrey and Sanders between an optimal relationship and a meaningful relationship and said at paragraph 17:

    The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others.  They need to learn about the privileges and responsibility which will devolve upon them as parents.  Those are fundamental parts of the meaningful relationship.

    [9] Tait and Dinsmore (2007) FamCA 1383

1. In this matter, on the current state of the evidence, it is not open to the Court to make a finding of fact in relation to each of the assertions of family violence perpetrated by the father.

2. Given the mother’s evidence and the corroborative evidence contained in the affidavits of her supporting witness, I do find that there are currently reasonable grounds to believe that the father has engaged in some family violence. On that basis I find that the presumption does not apply. I may still go on to decide if it is in the best interests of the children for the parents have equal shared parental responsibility, but I find that on this interim basis, it is not appropriate in the circumstances to make an order in relation to parental responsibility, preferring on the current state of the evidence to leave the matter where it was left by Judge Boyle on 14 January 2019, with each parent having parental responsibility for each of the children pursuant to section 61C of the Act.

3. Accordingly, as no order is made for the children's parents to have equal shared parental responsibility, I do not need to go on and consider the matters referred to in section 61DA of the Act.

Summary

1. On the basis of the above examination of the evidence, and after considering the relevant matters contained in section 60CC (2), (2A) and (3), and taking into consideration the father's consent to the orders made by Judge Boyle on 14 January 2019, and the matters with which his Counsel indicated in submissions on interim hearing the father agrees, I find on the interim basis:

   a)that there is currently an unacceptable risk to the children in being in the sole care of the father while spending time with him;

   b)that it is appropriate that the father's time with the children be supervised by a commercial supervision agency, with the consequent logistic effect on the duration of those occasions;

   c)that it is in the best interests of the child [W] that her time with the father be spent on a one-on-one basis between herself and her father;

   d)that there should currently be no specific order for [X] to spend defined time with his father, but, rather, that [X] should spend time with his father if he so chooses by joining in the father's time with [Y] and [Z];

   e)that [Y] and [Z] are benefiting from spending time with their father pursuant to the interim order made by consent on 14 February 2019 and should continue to spend such time with their father;

   f)that it is not currently in [V]'s interest to be compelled by order to spend time with his father;

   g)that changeover at the start and end of the father's time with any of the children should continue to be effected by changeover of the children between the relevant parent and the Contact Centre supervisors at or very near the venue where the father's time with the child or children is to take place, the children being brought to that point at the start of the time by their mother and returned to their mother at that point at the end of the time.

2. Accordingly, I make the orders as set out at the start of this judgment.

I certify that the preceding one hundred and sixty-seven paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 23 May 2019