Betts and Mullah
[2014] FCCA 631
•12 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BETTS & MULLAH | [2014] FCCA 631 |
| Catchwords: FAMILY LAW – Interim parenting – allegations of family violence – allegation that mother not supporting child’s relationship with father. |
| Legislation: Family Law Act 1975(Cth) – ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII |
| MRR v GR [2010] HCA 4 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR BETTS |
| Respondent: | MS MULLAH |
| File Number: | WOC 653 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 5 March 2014 |
| Date of Last Submission: | 5 March 2014 |
| Delivered at: | Wollongong |
| Delivered on: | 12 March 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Marriott Oliver Solicitors |
| Solicitors for the Respondent: | Robertson Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Bailey Mullard Lawyers |
ORDERS
All previous parenting orders regarding [X] born [in] 2009 be vacated.
The child shall live with the mother.
Within 14 days both parents do all such things and sign all such documents to enrol the child in a local pre-school facility as agreed between the parents but, failing agreement, of the father’s choosing for two days per week.
That the child will spend time with the father as follows, with such time to be unsupervised:
(a)From the conclusion of preschool until 6.00pm on the first day of the days that the child attends preschool for a period of 2 months with the father to collect the child from preschool at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
(b)Thereafter from the conclusion of preschool until 6.00pm on both of the days that the child attends preschool for a further period of 2 months with the father to collect the child from preschool at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
(c)At the time of returning the child to the Mother’s home the Farther is to enter the Mother’s residence no further than the front gate and to then supervise from a distance the child’s entry into the Mother’s home.
That each party authorise any relevant health or educational professional to provide the other with copies of educational reports and any other reports, information or documentation relating to the health and education of the child.
That each party take all reasonable steps to keep the other party informed of any significant developments in relation to the health and education of the children
Leave to the Independent Children’s Lawyer to relist on 7 days’ notice.
The matter be adjourned to 27 June 2014 at 9:00am for Interim Hearing.
Both parties file and serve an updating affidavit and minute of order upon which they intend to rely by no later than 23 June 2014.
The Independent Children’s Lawyer is granted leave to issue such Subpoena as they consider relevant to the issues before the Court with such Subpoena to be returnable by 25 June 2014.
The parents are authorised to provide to the child’s pre-school a copy of these orders.
The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Betts & Mullah is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 653 of 2013
| MR BETTS |
Applicant
And
| MS MULLAH |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
The application before me relates to a child, [X], born [in] 2009. [X] is 4 years old. His father is the applicant and his mother, the respondent. By way of his father’s amended application filed 22 November, the father seeks certain orders in relation to parenting which are basically opposed by the mother. When the matter came before me for an interim hearing earlier this week, the father’s proposal was contained in his document entitled Applicant’s Proposed Orders, reproduced in Schedule One to these reasons. In effect, and in descriptive terms, the father presents a carefully articulated proposal for [X] to start spending time with him to coincide with attendance at preschool.
The mother’s proposal is contained in her application in a case but, in effect, the proposal is contained in her solicitor’s outline of case document and it provides for the father to spend supervised time with [X]. The mother’s proposal is reproduced in Schedule Two to these reasons.
The Independent Children’s Lawyer’s proposal is, in effect, consistent with the father’s proposal.
There have been previous orders made in this case, including an order by consent made 23 December that provided for [X] to spend supervised time with his father – supervised by [C] at the father’s expense. Indeed, amongst the quite substantial evidence that I had before me, there are reports that have been provided by the [C] workers.
In terms of the material before the Court, I was greatly assisted by the case outline filed on behalf of the father. I had his affidavits of 27 February, 12 December, 20 November and 25 July. In the mother’s case, again I was assisted by an outline of submissions document and she relied on her affidavits of 30 August, 3 December 2013 and 24 February 2014. In addition, there is an affidavit from her son, Mr M, sworn 26 February 2014.
There is a chronology that is contained in the applicant’s case outline document. I am satisfied, having looked at all of the documents, including subpoenaed material, that it is broadly consistent with the evidence before the Court, and is reproduced in Schedule Three.
I have mentioned subpoenaed documents. The documents before the Court included a photo of the child, documents produced by New South Wales Police, the local area health service, the father’s urine analysis, documents produced by Anglicare, the Department of Family Services, [C], and a number of emails.
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islanderculture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed. I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
I will also incorporate into these my reasons the Child Inclusive Conference memorandum to Court of [date omitted] 2013.
AGREEMENTS REACHED
The father will comply with Order 5 of the Orders of 3 September 2013 (he will contact the contact centre this week)
ISSUES IN DISPUTE
Whether parental responsibility ought to be sole to the mother or continue as equal shared parental responsibility
What periods of time, if any, [X] , ought to spend with his father
Whether or not [X] ought to be permitted to relocate to Newcastle (the father is adamant that he will not consent to relocation)RISK FACTORS
Family Violence
There are no AVOs. The mother, however, described the father as being violent (both physical to her and some of her children and also damaging property ie destroying doors in the former matrimonial home and punching holes in the walls). She also alleges that he smoked “pot” regularly and consumed alcohol to excess – all these allegations are denied by the father.See also mother’s affidavit and Notice of Child Abuse, Family Violence or Risk of Family Violence.
Neglect
While the father did not specifically allege that the mother is neglectful of the child he believes that the mother’s living conditions are less than adequate in that he believes the house is “messy…untidy and” not as clean as he would wish
COPARENTING RELATIONSHIP
Communication between the parents ceased in May 2013. Despite this, however, by the end of this intervention each parent indicated that they would like to be able to communicate with the other parent in order to co-parent [X].The writer believes that the current property issues between the parents is a further complicating factor to them being able to communicate as is the mother’s wish to relocate
THE CHILD
[X] (born [in] 2009 – the mother advised that the family had celebrated his birthday earlier in the week as this intervention coincided with his birthday) was not able to be interviewed as he was not able to be separated from his mother.Each parent said that this is fairly normal behaviour for [X]. He is described as being comfortable and outgoing with his siblings ([name omitted] (born [in] 1992) – who lives and works in Sydney; Mr M (born [in] 1995) – who lives with his mother and works in the local area; [name omitted] (born [in] 1998) who is in Year 9; [name omitted] (born [in] 1999) who is in Year 8 and [name omitted] (born [in] 2001) who is in Year 5, but extremely reserved with others, including members of his external maternal and paternal families if he has not had contact with them for a period. According to Ms Mullah, she has recently attempted to have [X] attend pre-school but, after two days, [X] was still unwilling to remain at the centre without her. She is hoping that he might attend commencing in early 2014.
[X], his mother and the writer spent approximately 50 minutes together. It was only towards the end of this period that [X] was prepared to leave his mother’s arms and tentatively explore the room and the toys. His speech was somewhat monosyllabic and difficult for the writer to understand. Ms Mullah commented that he is not at the same developmental level as his siblings were at four years. Her sister, who is a pre-school teacher, has suggested that he be assessed. Ms Mullah said she was making inquiries for this to occur.
When the mother and child were about to leave, [X] saw his father. The mother did not interfere in any way with what then transpired, she was in fact appropriate encouraging of [X]’s. The father acted appropriately and the paternal grandmother joined the father. While [X] made no attempt to move towards his father he was, nonetheless, content to allow his father and paternal grandmother to interact with him. The mother was encouraging of [X] in this. After some 15 minutes [X] appeared more relaxed and made some tentative overtures to both his father and paternal grandmother but still maintained physical distance. When the writer indicated that this unexpected observations and contact would need to terminate, [X] immediately turned his body to the wall and hide his face. His mother dealt with this appropriately but was unable to have [X] articulate his feelings. There was no physical contact between [X], his father or paternal grandmother. As the writer accompanied the father to her room the mother and paternal grandmother were talking to each and [X] was with them. The paternal mother told the writer that the mother had offered to meet her in a park so that she could spend some time with [X].
FUTURE DIRECTIONS
The Court will be assisted by the appointment of an ICL who, after reviewing documents subpoenaed from: New South Wales Police Force; Department of Family and Community Services; the child’s former pre-school/child care; medical records and other allied health professionals in relation to the child and each of the parents, will be able to assist the Court in determining what, if any, type of contact would be most appropriate on an interim basis.A Family Report will assist the Court at a final hearing.
The mother’s case is, in effect, summarised by the evidence that she gives at paragraph 10 of her affidavit of 13 December, reflected in the submissions that were made by her solicitor. In effect – and at the risk of simplifying the mother’s case – her case is that, firstly, [X] is fearful of his father and, secondly, that the father has little insight as to the impact that family violence has had on [X] and, to an extent, on her as well because she says she would be scared and insecure if a contact were not at a supervised contact centre.
It is necessary to look carefully at whether there is evidence before the Court to justify the mother’s concerns. The assertion that [X] is fearful of his father is inconsistent with two independent sources of evidence. Firstly, the Child Inclusive Conference memorandum of 21 November references no suggestion of fear and indeed records that [X] was content to allow his father and paternal grandmother to interact with him. Now, there is no doubt from reading this memorandum that he was aloof and that there was no physical contact but, certainly, this document is not consistent with – indeed, is quite inconsistent with – the assertion of fear of his father.
Secondly, and perhaps more probatively, the [C] reports of 28 January, 11 February and 18 February 2014 cast doubt on this. There is no doubt that there is an initial apprehension and an aloofness present in terms of [X]’s interaction with his father but, again, there is absolutely nothing to suggest that there is fear.
I appreciate the mother’s evidence contains an assertion based on what she has seen about this fear but, when that is compared to the two independent sources of evidence, the Court, albeit at an interim level, does not accept the proposition that there is evidence to support the mother’s contention that [X] is fearful of his father.
The next limb of the mother’s case relates to family violence and her evidence makes it clear that she is asserting that there was both family violence to her to which [X] was exposed and family violence to [X] himself in the form of, amongst other things, a dislocated shoulder.
The difficulty is that the majority of the mother’s allegations are flatly and firmly denied by the father. The focus turns to the corroborating evidence such as it is. The mother says that the affidavit of Mr M, her son, is corroborative. It lacks probative value, however, because it can hardly be said to come from an objective source. The evidence – the assertions contained therein – lacked specificity and, quite frankly, is cast in very general terms. The Court places little or no weight on it. In any event, the evidence suggests that the witness was arrested, charged and convicted in relation to drugs – another peripheral reason not to place much or any weight on his evidence.
The mother’s allegations of family violence do find some corroboration in the Department of Community Services material though, perhaps, one would expect to see more of it given the history the mother gives in her affidavits. Her solicitor submits, and the Court does not dispute, that non-reporting is not necessarily inconsistent with surviving family violence. Indeed, it is often typical of it.
Interestingly, these same records do raise concerns about aspects of the mother’s past parenting capacity, particularly as regards her own children, that is, to the children in the household or formerly in the household other than [X]. The Anglicare documents do not establish what the father and Independent Children’s Lawyer asserted, mainly because the mother’s intake documents were not subpoenaed – only the father’s – thus it is not possible to establish what the mother represented to Anglicare about family violence in her intake.
The documents do record and therefore, to some extent, corroborate the mother’s concerns about the risk to the child by the father, arising out of an incident that the mother deposes to in her affidavit. The parenting plan that they entered into as a result of the Anglicare intervention records an agreement for the father to have daytime contact with [X] provided he was accompanied by one of his older siblings. It was an agreement that was to be reviewed in six weeks anyway.
What the mother agreed to, therefore, cannot be said to be inconsistent with her stated concern because of the requirement that an older child would be present at contact. The file presented by Anglicare notes that the case was closed due to the mother being “unwilling to follow previously signed parenting plan due to child safety concerns”. Again, this is not inconsistent with the mother’s stated concerns. I do note, however, that the Independent Children’s Lawyer may wish to consider a subpoena to Anglicare that asks for the intake documents relating to the mother.
Obviously, the Anglicare documents to which I have made reference are not covered by the privilege contained in the Act, the privilege not commencing until such time as family counselling or family dispute resolution is actually undertaken and thus excludes intake procedures. The New South Wales Police documents do not establish that which the father contended, that is, that the damage that the mother asserts was perpetrated by the father to the house was in fact caused by a break-in. The latter occurred in the granny flat, whereas the mother asserts the damage was in the house.
The [omitted] Hospital clinical notes do not establish that which the father asserted, that is, that the father did not dislocate [X]’s shoulder as the mother alleges; it was the mother represented to the hospital it was a play accident. The mother’s allegations about the father are not limited to this one incident on 12 September. On balance, the evidence about family violence is not strong but there is some corroborative evidence for it. The Court is not prepared to ignore her concerns.
She says there is a risk to her that can be managed by keeping the parents separate and apart but she says there is a risk to [X] that can only be managed by supervision. Indeed, her case is put higher; that [X]’s exposure to the family violence is the cause – or at least a cause – of his resisting contact with the father. There are several aspects of the evidence which run contrary to the mother’s assertion and, indeed, is more consistent with the father and Independent Children’s Lawyer’s case that the mother is, in effect, not supporting the relationship between [X] and his father.
Firstly, and as previously indicated, there is no evidence that [X] fears his father. Secondly, there is the evidence contained in the DVD recording which, curiously, the mother advanced in her own case. What this evidence does is two things: firstly, it does not support the mother’s contention; secondly, it raises real concerns about the mother’s insight and is an act quite consistent with the father’s case. At paragraph 12 of the mother’s affidavit of 24 February, she says that she made the recording on 18 February, and I quote:
…as I did not believe the visits had been going very well.
This is a statement which is quite at odds with previous successful supervised visits as evidenced by the supervision reports. When viewing the recording, as I was invited to by all parties, the following becomes apparent. [X] appears most conscious of being recorded. [X] appears sullen. At no stage did the mother encourage him to go. At no stage was the mother directive, even in a minimalist fashion. The mother communicated to [X] several times that it was his choice to go. She said, and I quote:
It’s your choice. What do you want to do? Do you want to go? Do you want to spend time with daddy at the park?
Finally, and to add to the irony of all of this, when the supervisor instructs the mother to encourage [X] to go, the mother asserts that she has been doing just that.
Having regard to all the evidence and not just that to which I have made specific reference in these reasons, together with all the submissions made, the Court believes that in this case there are two risks that need to be managed.
The first risk is that the father will perpetrate family violence on [X]. The Court does not assess this risk to be high or unacceptable, particularly given the critical scrutiny of the Court process. It is certainly not of a magnitude that would suggest that the need for the father and [X] to have a meaningful relationship should be denied, and this would be the effect, in this Court’s opinion, of supervised contact as the mother proposes, given its track record. That is an irony in this case that the mother is proposing the perpetuation of something which clearly has not worked.
The next risk is that [X] will be denied any relationship with his father because of her attitude to [X] and her attitude to the responsibility of parenthood in that she seems to struggle to support his relationship with the father. In this regard, the DVD evidence, which again I say curiously is advanced by her in her own case, is quite damning against her. These are the risks that need to be managed in the Court’s opinion, albeit on an interim basis.
How do these proposals interact, or respond to, or reflect, or somehow manage, the risks that have been identified? The mother’s proposal is supervised contact. It is disproportionate to the risk. She has thwarted it in the past either advertently or inadvertently. The Court has no confidence that it would work, and in any event, it is certainly not necessarily.
Nextly, there is the father’s proposal supported by the Independent Children's Lawyer, which is a carefully considered and measured response to the challenges created by the facts of this case. It achieves several things. Firstly, it gets [X] to preschool. It would seem that the mother has been unable to do this. According to the Child Inclusive Conference memorandum, the mother gave up after only two days. It is not clear whether the separation issue between [X] and his mother is his problem or his mother’s problem. Whilst the mother clearly preferred her own proposal of supervised contact, she had adequate opportunity to express concerns about this aspect of the father’s proposal, that is to say, going to preschool. She did not. The Court can only assume that she has no objection to [X] attending preschool, and it is hard to imagine what any such objection would be, given his age.
The second advantage is that it removes the mother from the changeover because the father collects [X] from preschool. The DVD recording does raise the possibility that the mother is advertently or inadvertently by her presence contributing to the problem; hence, her removal can only assist. The third advantage, of course, is that it gets contact started again.
The Court does have a concern about the father’s proposal, however, and that is that after four months it progresses to overnight. The Court is not prepared to order that until there has been some assessment about how contact is going. In fact, the Court will bring this case back, in about four months time assuming, and here I am perhaps being optimistic, that there will be no problems in the meanwhile. I know that the father sought telephone contact and special days, but my sense is that we need to move more slowly and carefully. We can revisit that in about four months time.
In effect, these orders will provide that [X] start to attend preschool, that he spend some time with his father for a couple of months after preschool and that it gradually builds up. The Court recognises that this is far less than what he wanted, but one must not underestimate the challenges in getting contact started again. Indeed, I think the father’s proposal very sensitively and sensibly reflects the difficulties. One must also not underestimate the potential problems that the mother might raise. All I can say is that the Independent Children's Lawyer should not hesitate to relist this matter if there is a delay, for example, in enrolling [X] in a preschool.
I am going to bring this matter back before me in June. I am going to suggest 27 June at 9 am. I am going to direct that an updating affidavit be filed by both parents no later than 20 June, together with a minute of order that they propose. So just to make it abundantly clear, 27 June at 9 am is another possible interim to look at how to progress this matter further.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.
Associate:
Date: 8 April 2014
Schedule One – Applicant Father’s Proposed Orders
Pending further order, that the mother be and is hereby restrained from changing the place of residence of the child, [X] (born [in] 2009) to a location outside the [omitted] Council area without first obtaining the written consent of the father or a Court Order permitting her to do so.
The child shall live with the mother.
That both parents do all such things and sign all such documents to enrol the child in a local pre-school facility of the father’s choosing for two days per week.
That the child will weekly spend time with the father as follows, with such time to be unsupervised:
a)From the conclusion of preschool until 6.00pm on the first day of the days that the child attend preschool for a period of 2 months with the father to collect the child from preschool at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
b)Thereafter from the conclusion of preschool until 6.00pm on both of the days that the child attends preschool for a further period of 2 months with the father to collect the child from preschool at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
c)Thereafter from the conclusion of preschool until 8.00am the following morning on the next day that the child attends preschool for a period of 2 months with the father to collect the child from preschool at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
d)Thereafter from 10.00am Saturday to 5.00pm Sunday each weekend.
e)On the child’s birthday from 9.00am to 3.00pm.
f)On the father’s birthday from 9.00am to 3.00pm.
g)From 5.00pm Christmas Eve until 5.00pm Christmas day in even numbered years.
h)From 5.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years.
i)As may otherwise be agreed between the parties.
That the father be permitted to contact the child by telephone between the hours of 6.00pm and 8.00pm on Wednesday each week.
Notwithstanding any of the above the child shall spend time with the mother for the following periods:
a)On the child’s birthday from 3.00pm to 8.00pm.
b)On the mother’s birthday from 3.00pm to 8.00pm.
c)From 5.00pm Christmas Eve until 5.00pm Christmas Day in odd numbered years.
d)From 5.00pm Christmas Day until 5.00pm Boxing Day in even numbered years.
That each party authorise any relevant health or educational professional to provide the other with copies of educational reports and any other reports, information or documentation relating to the health and education of the child.
That each party take all reasonable steps to keep the other party informed of any significant developments in relation to the health and education of the children.
Schedule Two – Respondent Mother’s Proposed Orders
That the mother have sole parental responsibility for the child [X] (“the child”) born [in] 2009.
That the child live with the mother.
That the child shall spend time with the Father as follows:
a)The time spent between the father and child will be supervised by a duly appointed family and child counsellor or welfare officer for a period of two (2) hours or otherwise as directed by the family and child counsellor or welfare officer.
b)The family and child counsellor or welfare officer appointed to supervise the time spent with the father and child have liberty to report to the Court making this Order in relation to matters concerning the supervision.
c)The parties will attend a supervision information session at the Federal Circuit Court counselling service in the event that they are requested to do so by the family and child counsellor or welfare officer.
Schedule Three – Chronology
| Date | Event |
| [omitted] 1974 | The mother was born. |
| [omitted] 1974 | The father was born. |
| October 2001 | The father purchased the property at [W] for the sum of $155,000. |
| February 2007 | The parties commenced cohabitation. |
| April 2008 | The parties separated. |
| June 2009 | The parties re-commenced cohabitation. |
| [omitted] 2009 | [X] was born. |
| [omitted] 2011 | The parties became married. |
| February 2012 | The father attended upon a course called “Managing Strong Emotions”. |
| August 2012 | The father and mother had an argument. The father admits he grabbed a knife but denies threatening the mother or any of the children. |
| 2 September 2012 | The parties became separated. [X] spent time with the father once per week from 9.00am to 5.00pm. |
| January 2013 | The father commenced attending the [N] Family Relationship Centre. |
| 6 March 2013 | The father received correspondence from the mother’s legal representatives. |
| 15 March 2013 | The father caused his legal representatives to send correspondence to the mother’s legal representatives. |
| 26 April 2013 | The mother and father came to an agreement regarding [X] spending time with the father. |
| 30 April 2013 | [X] commenced spending time with the father in accordance with the agreement. |
| 5 May 2013 | [X] ceased spending time with the father. |
| 10 May 2013 | The mother send a text message to the father: Hi [X] won’t be going with you tomorrow he has the flue an dnext week Friday the 17th he can’t make either as it is [name omitted]’s birthday so we’ll have to make it Thursday the 16th. |
| 15 May 2013 | The father sent a text message to the mother requesting to spend time with [X]. He received no response. |
| 19 May 2013 | The father telephoned the mother. The father asked for [X] to spend time with him on Monday. The mother said “OK”. |
| 20 May 2013 | The mother accused the father of being a “child abuser”. The mother said the following: “You’re not seeing [X] ever again. I will see you in Court. You’re a child abuser [Mr Betts], a child abuser.” The Family Relationship Centre issued the Section 60I Certificate. |
| 31 July 2013 | The father commenced these proceedings. |
| 30 August 2013 | The mother’s legal representatives, for the first time, raise any concern regarding domestic violence. |
| 23 December 2013 | Interim Consent Orders are entered providing for the father to spend supervised time with the child. The purpose of the supervision is for assistance in re-establishing the relationship as opposed to any substantiated allegations. |
| 21 January 2014 | Father has first supervised visit organised through [C]. The visit was unsuccessful. [C] issues a cancelled contact report. |
| 28 January 2014 | Father has his first successful supervised visit with the child. This takes place at [omitted] play centre in [N]. [C] issues a supervised contact report. |
| 4 February 2014 | Third supervised visit is scheduled to take place at [omitted] play centre. The visit is unsuccessful and [C] issues a cancelled contact report. |
| 11 February 2014 | The fourth supervised visit is scheduled to take place at [omitted] play centre. The visit is successful and [C] issues a supervised contact report. |
| 18 February 2014 | The fifth supervised visit is scheduled to take place as per previous visits. [C] supervisor Ms S receives a telephone call from the mother one hour prior to the scheduled contact to cancel. Ms S makes arrangements with the father and worker to attend the mother’s residence to collect the child. The visit is unsuccessful and [C] issues a cancelled contact report. |
| 25 February 2014 | The sixth supervised visit is scheduled to take place as per previous visits. Ms S contacts the mother to finalise arrangements and receives indication that the mother is unwilling to cooperate with [C] arrangements. Ms S decides to cancel the contact. |
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Injunction
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Remedies
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