Brooks and HOLDEN

[2013] FCCA 140

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROOKS & HOLDEN [2013] FCCA 140

Catchwords:
FAMILY LAW – Parenting – Interim Orders – children exposed to domestic violence within mother’s new household – prominence of protective considerations – concerns held by Department of Family and Community Services – children to live with the father.

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

Cases cited:
Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348
Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286
MRR v. GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant: MR BROOKS

Respondent: MS HOLDEN

File Number: WOC 551 of 2009

Judgment of: Judge Foster

Hearing date: 5 April 2013

Date of Last Submission: 5 April 2013

Delivered at: Wollongong

Delivered on: 26 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Loschiavo

Solicitors for the Applicant: Donnelly Lawyers

Solicitors for the Respondent: Williamson Isabella Lawyers & Public Notaries

ORDERS

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The children [X] born [in] 2005 and [Y] born [in] 2008 (“the children”) live with the father.

2. The children spend time with the mother as agreed between the mother and father such agreement to be evidenced in writing including SMS or email communication and in default of agreement each Saturday from 9.00am to 5.00pm and each Tuesday from 9.00am to 6.00pm with changeovers to be effected at the McDonald’s Family Restaurant at [D].

3. That the mother be restrained from bringing the children into contact with Mr H.

4. The father do all things necessary for the child [X] to undergo a paediatric review with his paediatric specialist and the child [Y] attend upon her general practitioner for a general health review as soon as practicable.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children [X] born [in] 2005 and [Y] born [in] 2008 and the Legal Aid Commission of New South Wales is requested to provide such representation.  The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

2. Leave is granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.

3. Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.

4. The Independent Children’s Lawyer, being a party to these proceedings in receipt of a grant of Legal Aid, be exempt from fees by reason of Rule 2.04(1) Family Law (Fees) Regulation 2012.

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

6. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

   (b)to profile of the parents (and other significant adults);

   (c)to assess the parents interactions (and those of other significant adults);

   (d)to assess the children’s developmental and emotional state;

   (e)to assess the relationship of the children to the parents (and other significant persons);

   (f)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

   (g)to assess the proposed and actual home environments; and

   (h)to assess the proposals of each party as to the children’s future.

7. The Court requests the said report be released by Friday 26 August 2013.

8. The family consultant is granted leave to inspect all documents produced in response to Subpoena.

9. If the family consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

10. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

11. In the event that the Family Report has been released by the adjourned date both parties be in attendance in person on the adjourned date.

12. The Father and the Mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same provided always that there shall be no more than two requests in each calendar month. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

13. The Director General of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the children [X] born 18 December 2005 and [Y] born 5 June 2008.

14. The Court is to notify the Director General within 48 hours of this Order.

15. The Solicitor for the Applicant Father and the Solicitor for the Respondent Mother and the are to forward to the Solicitor for the Director General of the Department of Family and Community Services at its Head Office in Ashfield, not later than 4.00 pm on Friday 10 May 2013 copies of the documents filed by each of the parties to date.

16. Upon request from the nominee of the Director General the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

17. The matter is adjourned to Monday 3 September 2013 at 11.30 am for a directions hearing.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Foster delivered this day will for all publication and reporting purposes be referred to as Brooks & Holden.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

WOC 551 of 2009

MR BROOKS

Applicant

And

MS HOLDEN

Respondent

REASONS FOR JUDGMENT

Proceedings

1. These are interim parenting proceedings commenced by the applicant father by application filed on 1 February 2013.

2. The subject children are [X] born on 18 December 2005 and [Y] born on 5 June 2008.

3. Final parenting orders were made on 14 October 2009 and in summary those orders provided as follows:

   a)That the mother and father have equal shared parental responsibility;

   b)That primarily the children live with the mother and that the children spend time with the father:

   i)From 5.00pm Friday until 5.00pm Sunday each alternate weekend;

   ii)Each Wednesday from 10.00am until 4.00pm;

   iii)For specified times during the Christmas festive period, the children’s birthdays and Father’s Day;

   iv)For half of the New South Wales school holidays as agreed between the parties.

4. The father in his interim application seeks orders in summary:

   a)That previous parenting orders be stayed;

   b)That the children live with the father;

   c)That the mother undertake a psychiatric assessment before spending time with either child;

   d)That the mother not stalk or attend either of the children’s schools;

   e)That the children have supervised time with the mother from 10.00am until 2.00pm each alternate Saturday;

   f)That the mother undertake drug and alcohol testing before the children spend any time with her.

5. In his application the father seeks a final orders that provide in summary:

   a)That the children live with the father;

   b)That the children spend supervised time with the mother from 10.00am until 2.00pm Christmas day;

   c)That the children have supervised time with the mother on the children’s birthdays from 10.00am until 2.00pm and on Mother’s Day from 10.00am until 2.00pm;

   d)That the children have supervised time with the mother from 10.00am until 2.00pm each alternate Saturday;

   e)That the mother be restrained from being under the influence of drugs or alcohol during her time with the children.

6. It appears that at the time of framing both interim and final orders sought by him that the father was unrepresented.

7. In support of the interim orders sought by him the father relies upon his affidavit filed on 1 February 2013, his affidavit filed on 5 March 2013, and his affidavit sworn 27 March 2013 (Exh E), the affidavit of Mrs M filed on 15 March 2013 and the affidavit of Ms A filed on 5 April 2013.

8. The mother filed a response on 25 February 2013. In that response the mother sought final orders that in summary provided for:

   a)The children to live with the mother;

   b)The children to spend time with the father as agreed between the mother and father from time to time.

9. The mother sought interim orders in summary as follows:

   a)That the children live with the mother;

   b)That the children spend time with the father as agreed between the mother and father;

   c)That the father forthwith return the children to the mother and that in default a recovery order issue.

10. In support of the interim orders sought by her the mother relied upon her affidavit filed on 25 February 2013.

11. The present proceedings were first listed before this court on 6 March 2013. On that date proceedings were adjourned for interim hearing to Friday 22 March 2013 and directions were made for the filing and service of documents to be relied upon. On 6 March the parties entered into interim consent orders that in summary provided:

    a)That the previous orders made on 14 October 2009 be stayed;

    b)That the mother spend time with the children on 9 and 16 March 2013 from 9.00am to 5.00pm with changeovers to be effected at the McDonald’s Family Restaurant at Dapto.

12. On 22 March 2013 the matter was adjourned to 3 April 2013 for interim hearing. The parties were ordered to file and serve any updating material to be relied upon by 2 April 2013. By consent the court made further orders in summary as follows:

    a)That the orders made on 14 October 2009 be stayed until further order;

    b)That the children spend time with the mother each Saturday from 9.00am to 5.00pm and each Tuesday from 9.00am to 6.00pm with changeovers to be effected at the McDonald’s Family Restaurant at [omitted].

Background

1. The mother is presently aged 29. The father is presently aged 26.

2. The parties commenced a relationship in about October 2004 and separated on a final basis in January 2008.

3. The subject children referred to above are the children of that relationship.

4. The mother asserts that during the relationship she was the primary carer for the children.

5. The mother says that she returned to casual employment shortly after the birth of the first child. At the time of separation she was pregnant with the second child of the relationship.

6. The mother says that following separation the father would spend time with the eldest child each alternate weekend from Friday until Sunday and prior to the orders being made in 2009 the father had spent time with the youngest child on a limited basis.

7. The mother asserts that following the father commencing a relationship with his present partner, Ms A, in 2009 her relationship with the father deteriorated. The mother and Ms A sought and obtained apprehended violence orders against each other with the terms of such orders preventing the mother from attending the father’s home for changeovers if Ms A is present.

8. The mother makes allegations as to the father’s violence towards her and abuse of her during their cohabitation and after separation.

9. The mother commenced a relationship with a Mr H in mid-2011. She asserts that they are a couple but do not live together. On [omitted] 2011 the mother had another child [M]. That child is now about 18 months of age.

10. The children spent time with the father over the 2012/2013 Christmas school holidays in accordance with time provided for in previous orders. The mother says that on 15 January 2013 at the conclusion of the children’s agreed time with the father the children were not returned to her.

11. The mother says that thereafter she has endeavoured to contact the father seeking a return of the children to no avail. She says that the child [Y] has not been attending her pre-school and that the child [X] has not been attending his school at [omitted] Public School.

12. On 8 February 2013 the mother attended at the local swim school where the eldest child was having swimming lessons. An incident reflecting the poor relationship between the mother and father and the mother and the father’s new partner occurred.

13. The father’s application is supported by Mrs M who is the paternal great-grandmother of the subject children. Mrs M asserts that she has had a significant involvement with the children in terms of providing child care and assistance in relation to the children both financially and in-kind. Mrs M asserts that more recently she has become concerned as to circumstances within the mother’s household including arguments between the mother and her new partner, arguments between the mother and her neighbours, the eldest child having absences from school and the mother’s lack of care for and abuse of the children.

14. The father’s application is further supported by Mrs B is who is the grandmother of the subject children. Mrs B asserts that she has also provided assistance both financial and in-kind to the mother and the children and that she has provided assistance to the mother with the children’s care including overnight time. In 2012 the eldest child stayed with Mrs B for about six weeks in circumstances where there were issues in relation to the child’s behaviour. Mrs B expresses concerns as to the mother’s parenting and her ability to cope with the children.

15. She says that on occasions the mother has telephoned her distressed by her own domestic circumstances. In September 2012 the mother informed Mrs B that she had tried to hang herself in the garage in front of the children. Mrs B further expresses her concerns as to the mother leaving the eldest child unsupervised while the mother left the home with the youngest child. She asserts that in term three 2012 the eldest child missed a considerable amount of school.

16. Mrs B has observed the conflictual relationship that the mother has with her present partner and the children have complained to her about the ongoing conflict in the mother’s home between the mother and her partner and expressed to her their fear of returning to the mother’s home whilst her partner was present. She in particular refers to an incident on New Year’s Eve 2012 when Mrs B attended at the mother’s home and observed visible injuries on the mother inflicted on her by her partner.

17. The father lives in a de facto relationship with his partner Ms A. There is a child of that relationship [Z] born [in] 2012. The father resides in a two-bedroom villa and pays $250 per week rent.

18. The eldest child is presently in year two at primary school. The child [Y] attends pre-school three days per week.

19. The father is in employment as a [omitted] for a business run by his mother. Previously the father was on worker’s compensation for a back injury suffered in May 2008 and remained on worker’s compensation until January 2013. From a combination of his worker’s compensation payments and his present salary he earns an income of approximately $775 per week.

20. The father asserts that since separation he has had time with the children nearly every weekend and for some block periods save for a period from mid January 2012 until mid April 2012 when the father sought to relocate his residence to [omitted] Queensland for the purposes of his partner’s employment.

21. Following an incident outside the mother’s home on 31 December 2012 the children have continued to reside primarily with the father.

22. The father in his affidavit evidence expresses similar concerns as to the circumstances within the mother’s household and her treatment of the children, asserting that the mother yells, screams and swears at them constantly. He says that the children have told him that the mother’s partner inflicted injuries on her and that they are scared of the mother’s partner.

23. The father refers to an incident on New Year’s Eve 2012 when he attended at the mother’s home to find the mother and her partner involved in a physical altercation out in the street. He says the mother was very aggressive towards her partner.

24. The father also relies upon an affidavit by his present partner Ms A. The confrontational and conflictual relationship between the mother and Ms A is all too clear from that affidavit. The disturbing nature of the relationship between the mother and her partner Mr H is also evident from the affidavit of Ms A.

25. It is clear that there is a significant factual dispute between the mother and father as to the history as between themselves and the circumstances in respect to each of their present domestic relationships.

26. In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

    120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

    121.…………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.”

    122. Later, at paragraph [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.”

1. To some extent the court has been assisted by the production of objective documents produced on subpoena.

Department of Family and Community Services

1. Exhibit A in the proceedings comprises documents produced on subpoena by the New South Wales Department of Family and Community Services.

2. On 12 March 2013 a case review document was created. This was subsequent to interim consent orders made by this court. The mother informed the case officer that her relationship with [Mr H] (her partner) has recently improved. This coincides with the children not being in the mother’s care. The mother and her partner had strong verbal arguments about the way her partner disciplined the eldest child. It appears that the mother informed the caseworker that she would be moving residences on 22 March 2013. The case review document notes that the court will decide the residency of the children and if they were to live with the father the mother will receive support in relation to her parenting of the child of [M] and encouragement for her to access services about domestic violence, relationships and parenting. The case review document further notes that if the mother has residency of the children she will receive such support but there will need to be more intensive support, as the mother appears to have problems parenting all three children at the same time. The mother informed the caseworker that her partner [Mr H] will commence living with her full-time in her new accommodation. The case review document notes that there has been a history of domestic violence between the mother and her partner [Mr H] and that he has a history of drug and alcohol abuse. An interview with the child was indicative of frequent domestic violence.

3. A departmental file note was created on 19 March 2013 following an attendance by the caseworker at the mother’s home on 11 March 2013. The mother confirmed to the caseworker that the relationship between her and her partner had improved with the caseworker noting that this was in a circumstance where the children were not in the mother’s care.

4. The caseworker informed the mother that her partner had no parenting experience and his criminal record shows a significant drug history, alcohol related matters and in general antisocial behaviour. That criminal history is included in the departmental file.

5. The caseworker discussed with the mother the need for her to access services to maximise the chances of her improving her parenting.

6. The caseworker made it clear to the mother that any further notifications about domestic violence between her and her partner where the children were exposed to such violence would lead the department to reviewing care options for all three children. On the caseworker enquiring as to the likely result of drug tests if undertaken that day the mother said that she would test positive to cannabis but that her partner’s readings would be higher than hers.

7. The caseworker notes:

   “it was decided that the mother would benefit from individual counselling to help her remain emotionally strong and help her deal with what is clearly a very traumatic time. In addition to domestic violence counselling for her and [Mr H] was identified in view of their propensity to argue, fight and yelled in front of the children.”

8. It is to be noted that a departmental case officer attended at the father’s home, interviewed the father and his partner and was satisfied as to the children’s circumstances in that home.

NSW Police Force

1. Records were produced by the New South Wales Police Force in relation to the father and his partner Ms A.  Those documents disclosed a family incident involving the father’s brother, the father and Ms A in December 2010.

2. Otherwise documents produced disclosed an incident on 15 December 2010 involving the father and his partner Ms A on the one part and the mother on the other. In that incident the mother exhibited aggressive behaviour towards the father and his partner and the use of foul and abusive language towards both of them. During the incident the mother struck the father to the side of the head with a closed fist through an open vehicle window.  The police records indicate that the father had previously an apprehended violence order against the mother in 2008 that had expired in 2009. As a consequence of the incident the police made an application for an apprehended violence order for the protection of Ms A.

3. The police records also disclose domestic incidents between the father and his present partner Ms A in January 2010, in respect of which no action was taken and in December 2009 in respect of which no action was taken. The police records in relation to the earlier incident indicate that there had been previous domestic violence incidents involving the father and his present partner.  In particular an incident in October 2009 that resulted in minor injuries being sustained by Ms A in respect of which Ms A refused to provide a statement to the police.

4. The police records further disclose incidents involving the father’s present partner Ms A and the mother. It is clear that there is significant animosity between the two of them and the behaviour of each of them revealed in the police records does neither of them any credit.

Medical Records

1. Documents were produced on subpoena by the medical centre at which the subject children had attended in the past. The medical records for the eldest child [X] reveal a significant number of attendances on the child between May 2006 and August 2012.

2. A child and family psychiatrist saw the child in early 2010. The report observes that the child is prone to angry outbursts where he screams, cries, throws things and bites and that these angry outbursts occur every day. Concerns for the child’s speech were noted. It was further noted that there was a family psychiatric history with the father having been diagnosed with attention deficit disorder with hyperactivity. In summary it was noted that there were concerns for the child’s behaviour. Some of the child’s behaviour was understandable as a reaction to difficult past circumstances. Given the child’s difficulties with speech he was assessed at risk of underlying language disorder and that this may also be contributing to the child’s sense of frustration. However the practitioner was reluctant to rush towards a diagnosis of ADHD but observed that things may become clearer as the child commences kindergarten in the following year. Speech pathology assessment was strongly recommended and it was suggested that the mother might attend a behaviour management course.  The practitioner expressed reluctance to recommend any medication therapy but if the child continues to struggle at school then a trial of Ritalin or Dexamphetamine could be considered.

3. A consultant paediatrician saw the child in October 2010. It was observed that there has been a long-term delay in the child’s expressive language. It was concluded that the child does not have attention deficit hyperactivity disorder, but that there were some mild developmental problems particularly in speech.

4. The youngest child’s medical records also reveal numerous attendances upon her general practitioner from July 2008 to October 2012.

5. A paediatric report on the youngest child [Y] reveals a pregnancy complicated by cigarette, cocaine and marijuana use by the mother.  The child was later diagnosed with eczema and has a history of chronic skin infections. 

Exhibit D

1. Admitted into evidence has Exhibit D was a supervised chain of custody urine drug test undertaken by the mother on 12 March 2013. The mother tested positive for cannabis.

The Law

1. The relevant principles in relation to parenting and interim parenting proceedings are well settled: Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286. The Full Court in Goode and Goode provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v. GRR [2010] HCA 4 affirmed the legislative pathway

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

   “(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. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s.(2)) and additional (sub-s.(3)) considerations that the court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s.61DA(2)];

   b)In interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s.61DA(3)];

   c)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s.61DA(4)].

6. If the presumption in s.61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s.65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

7. In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in s.61DA to interim proceedings at [56], the Full Court said:

   “In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

The Presumption

1. The court is not satisfied that in all the circumstances of this matter the presumption should apply. As set out above in this the court’s reasons for judgment there are reasonable grounds to believe that the mother has engaged in the abuse of the children or family violence in the context of her present relationship and that the children have been exposed to same.

2. In that circumstance the orders to be made by the court fall to be determined by reason of a consideration of the best interest considerations set out in section 60CC.

Best Interests

1. As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the court turns to look at the best interests considerations set out in section 60CC it should firstly consider the additional considerations:

The Additional Considerations

1. Section 60CC(3):

   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;

   In the children in this matter are of tender years and as such have any wishes that may or may not be expressed by the children would be afforded little weight by the court.  This consideration is of little assistance to the court.

   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);

   The children’s relationship with the mother who has historically been the primary carer is problematic. The children were in the mother’s care recently in circumstances where both children were exposed to domestic violence within the mother’s household and it appears abuse by the mother’s partner. It appears from objective documents that the mother has struggled to cope with the care of three young children particularly in circumstances where the oldest child presents a difficult set of behavioural issues for the mother. It is not surprising that in the context of the present relationship the Department has considered the option of removing the children from the mother’s care.

   The father has had it appears a consistent relationship with the children and they appear to have a substantial and significant relationship with him such that they would not be disadvantaged by remaining in the father’s full-time care pending final hearing.  It appears that the father’s own relationship with his present partner had some early difficulties as evidenced by the police records but there has been no recorded incident over the last two years. The inference being that the father’s relationship with his new partner has settled and indeed there is now a child of that relationship.

   A consideration of this factor favours the father.

   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;

   In the circumstances of this matter a consideration of this factor is of little utility.

   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;

   In the circumstances of this matter a consideration of this factor also is of little assistance to the court.

   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;

   The children have now been residing in the father’s household since January 2013 and spending time with the mother by reason of interim orders made in these proceedings. The present arrangements reflect appropriate protective considerations in relation to the children particularly as to the mother’s relationship with her present partner and the impact of that relationship on the children.

   It is reasonable to expect that the children have settled in to their present circumstances and any effect of the change from the primary care of their mother has been diminished by reason of time. It is however important to ensure that the children’s relationship with the mother continues so as to minimise any adverse affect that may impact on the children by reason of a change in the residence circumstances. It is clear that the children have had involvement with the extended paternal family and that this will continue whilst they remain in the father’s primary care.

   A consideration of this factor favours the father.

   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;

   This is not a consideration of any substance. The parents live within sufficient proximity so as to facilitate the non-resident parent having appropriate time with the children.

   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;

   This consideration is a primary concern to the court in this matter. The children are still of tender years and such material as is available to the court is indicative of the mother struggling with the day-to-day care of the children within the household particularly in the context of the present domestic relationship with her partner. Such a situation reduces the mother’s capacity to be able to provide for the children’s needs particularly the children’s emotional needs. Significantly the mother’s present partner provided no evidence in support of the mother’s application.

   The situation in the father’s household appears more settled and his present application is supported by his present partner. A consideration of this factor favours the father.

   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;

   Save to note that the subject children are of tender years and thus it is appropriate to adopt a particular approach this factor is otherwise of no assistance in the present application.

   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;

   This is not a relevant consideration.

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

   In the circumstances set out in the court’s reasons for judgment above it is clear that the mother has filed to adopt an appropriate attitude to the children and to the responsibilities of parenthood. Notwithstanding a destructive, physical and abusive relationship with her present partner she persists in that relationship to the detriment of the children such that the Department is mindful of removing the children from her care.

   Otherwise in bringing the present application the father has demonstrated an appropriate attitude to the children and his responsibilities as a parent. His application is brought before the court in circumstances where there are serious protective concerns in relation to the children should they remain in the full-time care of the mother.

   A consideration of this factor favours the father.

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

   The circumstances relating to this factor are clearly set out above. Should the children remain in the mother’s household there appears no doubt that they will continue to be subjected to domestic violence within the household directed towards not only to their mother but to them. The eldest child expressed his concerns directly to the departmental caseworker.

   A consideration of this factor favours the father.

   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;

   This is not a relevant consideration.

   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;

   These are interim proceedings and a consideration of this factor is not relevant.

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

   There is no other fact or circumstance that the court thinks is relevant.

The Primary Considerations: s.60CC(2)

1. 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.

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

Section 60CC(2)(a) – “meaningful” relationship:

1. In Mazorski v Albright[2007] FamCA 520; 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 “important” 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.

2. In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. In considering the children’s relationship with each parent and being guided by the concept of a relationship which is important, significant and valuable to the children it cannot be said that leaving the children in the primary care of the mother would result in the maintenance of such a relationship. In such a circumstance the children’s relationship with the mother would be problematic by reason of the prevalence of family violence in her household and the risk to the children of being exposed to that violence and being exposed to abuse by not only the mother’s partner but by the mother.

4. On the other hand notwithstanding what appeared to be early issues in their relationship, the father and his present partner appear to present a much more settled and stable environment for these young children until the court can determine proceedings on a final basis.

5. A consideration of this factor favours the father.

Section 60CC(2)(b) – need to protect

1. In reality this consideration is the one on which ultimately this matter turns. The court has above in its reasons for judgment referred to in considering various factors that protective issues that relate to these young children. In the circumstance where they previously resided with the mother they were clearly at risk from being exposed to ongoing domestic violence and abuse.

2. A consideration of this factor is given more primacy by reason of the 2012 amendments to the legislation. It is the court’s view that a consideration of this factor must inevitably lead to a decision that the children on an interim basis should remain in the primary care of the father.

3. Having regard to all the considerations referred to above the court is satisfied that it is in the best interests of the children that orders be made that in summary pending further order provide for:

   a)The children to live with the father;

   b)The children spend time with the mother as agreed between the mother and father and in default of agreement each Saturday from 9.00am to 5.00pm and each Tuesday from 9.00am to 6.00pm with changeovers to be effected at the McDonald’s Family Restaurant at [omitted];

   c)That an Independent children’s lawyer be appointed;

   d)That a family report be prepared;

   e)That the Independent children’s lawyer be able to request random urinalysis testing of both parties;

   f)That the Department of Family and Community Services be requested to intervene in these proceedings;

   g)That the mother be restrained from bringing the children into contact with Mr H.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Foster

Date:  26 April 2013