Caffrey & Ladd
[2021] FedCFamC2F 531
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Caffrey & Ladd [2021] FedCFamC2F 531
File number(s): PAC 4130 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 9 December 2021 Catchwords: FAMILY LAW – interim parenting – best interests of children – Orders made Legislation: Family Law Act 1975 (Cth), ss 69ZL, 60B, 60CC, 60CA Cases cited: 1 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
2 Marvel & Marvel (No 2) [2010] FamCAFC 101
3 Eaby & Speelman [2015] FamCAFC 104
4 Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 68 Date of last submission/s: 8 October 2021 Date of hearing: 8 October 2021 Place: Parramatta Solicitor for the Applicant: Mr Siu Solicitor for the Respondent: The Respondent appeared in person Solicitor for the Independent Children’s Lawyer Ms El Baba ORDERS
PAC 4130 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAFFREY
Applicant
AND: MS LADD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
9 DECEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the Father’s Application in a Case filed 27 April 2021 be dismissed.
2.That the Father’s interim applications to spend supervised time with the children, as set out in his summations emails to the Court dated 6 September 2021 and 8 October 2021, be dismissed.
3.The parties shall continue to engage in family therapy with Ms B, together with the children, as recommended by Ms B.
4.These parenting proceedings are set down for final hearing on 6 April 2022 at 10am, estimate three days.
5.Direct the ICL to inform the family report writer of the above final hearing date within 7 days.
THE COURT ORDERS IN CHAMBERS THAT:
1.Five days prior to the final hearing, the parties must file a jointly agreed statement of issues and agreed facts of no more than 2 pages, such statement is to include particulars of each issue to be determined by the Court at final hearing.
2.For documents to be marked as exhibits, a tender bundle will need to be created of the scanned subpoena material or other documents. Without leave of Judge Newbrun, a 30 page limit is imposed.
3.Each tender bundle is to be created with an index and paginated.
4.Tender bundles are required to be forwarded to the associate inbox [email protected] not later than 2 business days prior to the hearing and electronically exchanged with the other parties.
5.The parties are granted leave to photocopy material produced under subpoena for the purposes of preparation of the tender bundle for the final hearing.
6.Direct each party file and serve a Case Outline directly by email to the associate inbox [email protected] not less than 7 days prior to the commencement of the final hearing setting out:
a.A precise Minute of Orders sought;
b.A list of documents to be read in their case;
c.A chronology of events;
d.Issues in dispute;
e.A brief summary of argument touching upon the matters set out in s 60CC of the Family Law Act 1975 (Cth) with reference to the relevant evidence relied upon; and
f.A list of authorities to be relied upon.
- A schedule of objections to be taken to material (and the parties shall confer prior to hearing and endeavour to reach an agreed position on how those objections will be dealt with);
- Issues in dispute;
- A joint balance sheet; and
- A brief summary of argument touching upon the matters set out in ss.79/90SM and 75(2)/90SF(3) of the Family Law Act 1975 with reference to the relevant evidence relied upon.
THE COURT NOTES THAT:
(a)The provision of any documents to the Court pursuant these Orders does not place those documents into evidence and such documents shall only be accepted as evidence at the Court’s discretion in the usual manner.
(b)All the attendant Rules of Court, responsibilities and restrictions remain applicable, including restriction on publication of court proceedings pursuant to s 121 of the Family Law Act 1975 (Cth).
(c)Tender bundles that do not comply with the index, pagination and delivery directions will be rejected and be unable to relied upon at the hearing without leave first being had and obtained.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Caffrey & Ladd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the children, X, born in 2012 and Y born in 2010. They have not spent regular unsupervised time with the Father since about 2019. Since the Court’s interim parenting Orders of 6 August 2020, the children have only spent quite limited supervised time with the Father, that supervised time having been provided by a private supervision service.
As discussed further below, at the interim hearing the Father proposed that the children spend supervised time with him. The Mother and the ICL opposed this proposal.
BACKGROUND
On 6 August 2020, following a defended interim hearing, the Court made interim parenting Orders, inter alia, that the children live with the Mother; the children spend time with the Father, at his election, supervised by a professional supervision service, or under supervision at the C Family Centre, Sydney, in both cases up to 5 hours each week. The Father was also ordered to undertake CDT testing.
On 7 May 2021 the family report of Ms G dated 5 May 2021 was released to the parties and ICL. The family reported made the following recommendations, in the absence of evidence to the contrary:
(a)there be shared parental responsibility;
(b)an expert psychiatrist be appointed to independently assess the allegations and risk of harm for the children regarding the risk of sexual assault and the family relationship with each parent;
(c)no Orders be made until the Court has received information from the family therapist regarding the children’s views and this information be reviewed in accordance with the allegations regarding safety;
(d)should contact occur, it would be required to be supervised to ensure the children’s safety;
(e)that both parties engage in Keeping Contact and Parenting After Separation courses.
On 7 May 2021 certain interim Orders were made by the Court including Orders that:
(a)The Father’s above Application in a Case was adjourned to 6 September 2021 to allow some family therapy to occur in relation to the children.
(b)Each party obtain a mental health referral to a family therapist and with such referral (on the Mother’s part) to include the children. The mental health referrals to a family therapist was stated to be for such assessment and ongoing engagement of the parties and each of the children.
(c)The parties to do all things necessary to engage with Ms B of H Counselling and Psychotherapy “or such other appropriately qualified family therapist as recommended by the Mother’s GP for the purposes of assessment as to their suitability for ongoing family therapy if Ms B is unavailable”.
(d)Following assessment of the parties’ suitability for ongoing family therapy, then the parties shall continue to engage with such therapist for the purposes of family therapy and ensure the attendance of the children at such times and for such appointments as nominated by such therapist.
(e)Trial directions were made with a compliance check and callover appointed for 4 November 2021.
Orders (b)-d) were by consent.
On 7 September 2021, interim consent Orders were made, inter alia, that the ICL contact Ms B, family therapist, for the purpose of obtaining a report regarding the children’s views and the progress of family therapy generally. Notations were made that the ICL have liberty to provide a copy of the family report to the family therapist, the Father may be permitted to provide presents and birthday cards to the children through family therapy sessions if the family therapist consents, and it was noted that the parties intend to discuss the Father’s time with the children following the release of the report from the family therapist.
On 8 October 2021, the Court heard the parties and ICL’s oral submissions relating to the Father’s above interim applications, and the Court reserved its decision.
The Father’s Application in a Case filed 27 April 2021 inter alia, sought:
(a)to spend supervised time with the children, with supervision to be provided by the paternal grandfather, during the school term, each Monday after school to 8PM, during holiday periods, each Friday from 9 AM to 6 PM.
(b)an interim order that the paternal grandfather shall provide a written undertaking to the Court to supervise the children, and the terms of the undertaking to be agreed by the parties and the paternal grandfather and filed in the Court prior to the commencement of the visits.
(c)interim Orders relating to telephoning the children every Saturday morning, and
(d)an order that the children be entitled to contact the Father by phone, email, Skype or other electronic means at any time of their choosing.
In his summations email to the Court dated 6 September 2021 he proposed supervision at the children’s grandparents’ house where he would be supervised by 3 adults, being:
(a)the paternal grandfather, Mr J,
(b)Ms D, the children’s step grandmother,
(c)Ms K, the children’s stepmother.
In the Father’s email letter to Ms B dated 29 September 2021 he proposed that “officially” the paternal grandfather will be the supervisor but the step-grandmother and the children’s stepmother will always be in attendance at the family dinners.
The Mother and ICL opposed the Father’s proposed Orders.
In oral submissions at the interim hearing, the Mother’s solicitor submitted to the Court that the Mother was prepared to abide any future recommendations of the family therapist, Ms B, as to when the children were ready to begin spending time with the Father. The Mother’s solicitor contended that the present recommendation of Ms B was that the children were not ready now to begin spending time with the Father.
In oral submissions at the interim hearing, the ICL submitted that Ms B’s therapy with the children in particular needs to continue and that with such future further therapy it may well be that the children become ready to begin spending time with the Father in accordance with the recommendations of Ms B. Similar to the Mother’s submission above, the ICL submitted that the children were not ready now to begin spending time with the Father in accordance with Ms B’s present views.
MATERIAL RELIED UPON
The Father relied upon:
(a)Application in a Case filed 27 April 2021;
(b)His Affidavit filed 22 April 2021;
(c)His Emails to the Court of 6 September 2021, 8:21 AM, and 8 October 2021 (8.25am) containing his “summations”, in relation to the above application in a Case;
(d)Email from the Father to Ms B of 29 September 2021 and her email reply to the Father dated 1 October 2021;
(e)Affidavit of Mr L filed 13 July 2021;
(f)His oral submissions made on 8 October 2021.
The Mother relied upon:
(a)Her Response filed 27 July 2021;
(b)Her Affidavit filed 27 July 2021 (which included as Annexure D, an email from Ms B dated 25 June 2021 to the Mother);
(c)Email from the Mother’s solicitor to Ms B dated 5 October 2021 (at 10.21) and her reply email dated 5 October 2021 (at 3.45);
(d)Her oral submissions made on 8 October 2021.
The ICL relied upon:
(a)Report of Ms B dated 15 September 2021;
(b)Her oral submissions made on 8 October 2021.
The Court has had regard to, in addition to the above material of the parties and the ICL, the Child Dispute Conference Memorandum to Court dated 26 April 2020, and the Family Report dated 5 May 2021.
EVIDENCE INCLUDING THE PARTIES’ RESPECTIVE ALLEGATIONS
The Mother is aged 44 years. The Father is aged 41 years.
The Father alleges (in his Affidavit filed 22 April 2021) that since the Court’s interim parenting Orders of 6 August 2020 the child Y has only spent 6 hours with the Father over two visits, and the child X has only spent 12 hours with the Father over four visits.
The Father alleges that the Mother has refused to agree to other supervising agencies “until earlier this week on 20 April 2021” when she filled in the application for C Family Centre supervised contact centre. The Father alleges that C Family Centre supervision currently has a 12 to 15 month wait list.
The Father alleges that the paternal grandfather is a fit and able person to supervise the children, and has had a very close relationship with the children since they were born. He alleges that the paternal grandfather was trusted by the Mother to babysit and care for the children their entire lives and well after the parents’ divorce.
The Father alleges that Ms D has also had a close relationship with the children since birth. He also alleges that she was trusted by the Mother to babysit and care for the children their entire lives and well after the parents’ divorce.
The Mother alleges that after the Court Orders of 6 August 2020, the parties commenced supervised visits with E Contact Service.
In the email from Ms F from E Contact Service supervisory service, dated 28 January 2021, she asserts that on two occasions in November 2020 the child Y refused to be present; and on 22 November 2020 and on 6 December 2020, the children refused at handover to attend after active encouragement by E Contact Service. She asserts that on about 31 January 2021 the Father terminated visitation services.
In an email from the Father to the Mother’s solicitor, dated 26 March 2021 with the subject heading “Family Therapy”, inter alia, the Father makes recommendations for therapy including Ms B of H Counselling.
In the email from Ms B to the Mother dated 25 June 2021, inter alia, Ms B states that the child X had recently indicated some reluctance to attend a Zoom session with the Father. She recommended further therapy sessions. She stated that if after these sessions the children’s position had not changed in regards to a Zoom session with the Father, she would consider ending the family therapy assessment sessions for all.
The family report writer interviewed the parties, the children, and the Father’s partner, in early April 2021. At the outset, the Court acknowledges that this family report remains untested at this interim stage.
The Mother told the family report writer that she was not going to force the children to do something they did not want to do. She raised serious concerns for the children’s ongoing safety due to the Father’s alleged verbal, physical and sexual assault of herself and stated that she would not follow Court directions if she believes the children’s safety is at risk. The Father denied such allegations.
The Father’s partner alleged that the Mother’s allegations were a deliberate act to stop the Father from seeing the children.
The child Y was interviewed by the family report writer. He stated, inter alia, when asked about spending time with the Father, that “I don’t feel safe because he was drinking.” He went on to say that he was not scared or worried about spending time with the Father but would like the Father and his partner to stop locking their door and the Father to stop drinking. He reiterated that he was worried about the Father “if he drinks too much, could get sick.” He reported that due to the Father’s drinking he did not like the Father and wished he would change that. He commented that there is a phone, but the Father only answered about 12 of the 32 times they called, it was sad so “don’t try any more but it is there.”
When the child X spoke about the Father, she stated that she was not really sure anymore, that it has been a long time since she had seen him. She conveyed that there was nothing that scared or worried her about spending time with the Father, however stated, “I just don’t feel safe.” She did not provide any information about what was not safe.
Under the heading Evaluation, the family report writer stated, inter alia, that Y’s relationship with the Father could not be assessed due to the ongoing refusal of Y to attend supervised contact or have any contact with the Father.
The family report writer stated that the children have spent no time with the Father since 2019 and prior to that had inconsistent irregular time either in person or via the telephone which may be influencing their views. She stated that it is possible that the children’s unwillingness to spend time with the Father has been influenced by the Mother. She stated that given the children’s ages, developmental stages, it was recommended that the Court gives little weight to their stated views.
The family report writer stated that the Father demonstrated a clear understanding of the impact of having spent no time together with the children and how this could impact on their future relationship and his proposal before the Court.He identified that the children would need assistance to manage the changes they have experienced, and he appeared willing to facilitate and engage in this process.
The family report writer stated that the Mother impressed that she was supportive of the children spending time with the Father and encouraged the children to decide themselves what they would like to do.
The family report writer stated that the allegations of sexual violence between the parties was of concern. If there was veracity to these allegations then this could be a form of coercive controlling family violence. It was recommended that the Mother engage in family therapy to help her to address her experiences and manage the impact that it has on her capacity to parent.
The family report writer stated that if there was veracity to the allegation of stalking it was recommended that the Father spend supervised time with the children.
The family report writer stated that should the Court find veracity to the Mother’s allegations regarding family violence, the Court would need to be satisfied that the children are not at unacceptable risk in spending time with the Father, should that be the case it was recommended that the Father spend supervised time with the children one weekend day per month.
The family report writer stated that if the Court was unable to find veracity to the allegations regarding family violence, it was recommended that the family engage in therapy to re-establish their relationships.
The family report writer stated that given the depth of allegations regarding sexual assault and the potential impact on the children, it was recommended that an expert clinical psychiatrist be engaged to complete a full assessment of all parties including the mental health state of each parent and their capacity to provide safe and positive relationships for the children.
The family report writer stated that should the Court find veracity to the allegations of alcohol misuse in relation to the Father, the Court would need to be satisfied that the children are not placed at unacceptable risk if they are spending time with the Father. Therefore it was recommended that the Father engage in a rehabilitation program at no less than three months and have supervised contact with the children to ensure their safety and well-being.
The family report writer suggested to the Court that no Orders be made until the family have attended sessions with the clinical psychiatrist single expert witness and engage in family therapy.
The family report writer made the following recommendations, in the absence of evidence to the contrary:
(a)there be shared parental responsibility;
(b)an expert psychiatrist be appointed to independently assess the allegations and risk of harm for the children regarding the risk of sexual assault and the family relationship with the parties;
(c)no Orders be made until the Court has received information from the family therapist regarding the children’s views and this information be reviewed in accordance with the allegations regarding safety;
(d)should contact occur, it would be required to be supervised to ensure the children’s safety;
(e)that both parents engage in Keeping Contact and Parenting After Separation courses.
The private and confidential interim report of Ms B, counsellor and psychotherapist, family matters, dated 15 September 2021, stated, inter alia, that:
(a)she had been engaged by the parents to undertake a family therapy assessment. The order for assessment was based on recommendations by the family report writer to seek the children’s views in assisting with further directions and Orders.
(b)a session with the children and the Mother went ahead, however the planned sessions with the Father did not occur as the children were not willing to participate.
(c)a review with both parents was organised to determine the progress of the sessions and all parties were agreeable to continue family therapy sessions until December 2021, or until Court proceedings in September gave further clarity or directions.
(d)the children had attended five sessions together and separately with the first being 16 June 2021 and the most recent being 9 September 2021. The child X reported, inter alia, that “no” she doesn’t miss or love the Father but she could not remember if she loved him before. The therapist stated that X tended to view the Father as unsafe. Her perception of not feeling safe was around not being listened to, or acknowledged, or being blamed for things she didn’t do, hence emotionally and psychologically safe, rather than physically safe. As sessions progressed X has become more open to developing skills to build confidence and critical thinking and was not closed to the possibility that one day she will be ready to engage with the Father.
As to the child Y, he definitely struggled to find positive memories, and recall times of when he enjoyed spending time with the Father. He stated he did not love the Father but stated that he did once love him. Y’s recollections of negative events with the Father were quite apparent, including prior to separation the Father not being available for him due to drinking alcohol. The therapist stated that Y’s ambivalence towards the Father has been depleted. When trying to uncover thoughts and feelings about how the Father might improve Y struggled. The concept of the Father being able to repent or change was difficult to contemplate. He stated that for him he only has relationships with trusted adults and the Father was not a trusted adult.
(e)the therapist stated that at this stage there was little to conclude that circumstances between the children and the Father should not be repaired. She stated that the children and herself have developed a good rapport and were moving in a direction to find some resolve over the contact resistance refusal dynamics. She stated that having evidence and confidence that the children would benefit from ongoing family therapy and following discussions with the parties, they were all in favour of continuing the process beyond reportable family therapy assessment to find resolution. She stated that unfortunately these kinds of dynamics and the high conflict nature of the circumstances cannot be overcome quickly. Therefore, it will be necessary for the parties to do the work required in building certain skills to accommodate the children’s new skills and to develop the parallel parenting style which she recommends. She recommended further fortnightly sessions with the children and monthly review sessions with each parent. She stated that if by 31 March 2022 the children have had no supervised contact or sessions speaking directly with the Father, supported by herself, and she has solid confirmation that the children are unwilling or unable to implement the new skills that they have learned, then a formal review is to occur on 1 April 2022.
In the email from the therapist, Ms B, to the Father dated 1 October 2021, she stated, inter alia, to the Father that, by reference to certain statements made by her in her report of 15 September 2021, that she believes the children are now open to learning about healing and repairing a relationship. She stated that this also means that the parties need to be open to learning new and sometimes counterintuitive strategies and coping mechanisms to develop healthy positive skills of parenting and parallel parenting. She stated, however, that this process has many steps and requires different learning methods and timeframes to accommodate each child and parent’s different pace and abilities. She stated that that is why putting a date on this step, and an entire diverse family structure, is challenging and requires consideration of all the variables along the way.
In the email from the therapist, Ms B, to the Mother’s solicitor dated 5 October 2021, the therapist stated, inter alia, that overall her report indicates the children’s views, which are, that they are not ready to see the Father “now”. She stated that her opinion and suggestions validate that the children are not ready to see the Father “now”. She stated that, however, in anticipation that the work “we are doing will prepare the children to become ready sometime between now and the suggested review of 31 March 2022, and supervised contact would start from that time forward.” She stated that to further clarify, for the family therapy process to be successful “we need the children to develop the skills and knowledge to overcome the resist refuse dynamics. We also need the parents to gain the understanding and acceptance for successful parallel parenting. I believe there is an opportunity for the children to voluntarily start regaining contact and relationship with their Father if given a little more time. If contact does not occur before 31 March 2022 alternative reasons for this dynamic should become apparent and I will be in a position to enlighten all parties and the Court.”
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim Parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
DISCUSSION
The Court should state, for the purposes of this interim hearing, that it has taken into account all the documentary material referred to above, including the documentary material from the family therapist Ms B, including her report of 15 September 2021 and emails to the Mother’s solicitor and to the Father. The Court acknowledges that the contents of the Child Inclusive Conference Memorandum, the family report, and the documentary material from the therapist Ms B, are untested at this interim stage.
The child has a meaningful relationship with the Mother, the Mother having been the child’s primary carer from birth to date, and will likely benefit from a continuance of that relationship.
The children presently do not enjoy a meaningful relationship with the Father. They may well benefit prospectively from re-establishing a meaningful relationship with the Father if it is safe for them to do so, both physically and psychologically.
The Court refers to and adopts the contents of its interim judgement of 6 August 2020. In the view of the Court, and again at this interim stage, having taken into account all the material before it, there remains an unacceptable risk of harm posed to the children in spending unsupervised time with the Father. Prior to the final hearing of these parenting proceedings, at which final hearing all the evidence can be tested in relation to the alleged risk issues pertaining to the children and the Father, any possible future time between the children and the Father would need to be supervised.
In view of:
(a)the family report recommendation that no Orders be made until the Court has received information from the family therapist regarding the children’s views and this information be reviewed in accordance with the allegations regarding safety,
(b)the Court’s interim Orders on and since 7 May 2021 relating to family therapy, and
(c)all the documentary material from Ms B, the family therapist,
(d)the question arises: are the children now ready to commence spending supervised time with the Father? The Court is of the view that they are not so ready.
At this interim hearing, both the Mother and ICL indicated to the Court that they would be prepared to abide the recommendations of the family therapist, Ms B, in relation to the children beginning to spend time with the Father. This approach by the Mother and ICL is consistent with the history of the Court’s Orders since 7 May 2021 relating to the parties and children engaging in family therapy. The documentary material from Ms B, including her report of 15 September 2021 and emails to the parties following that report, indicates that Ms B is of the view that presently the children are not ready to begin spending time with the Father, and she had given reasons for this view, including by reference to the contents of her discussions with the children. Inter alia, she had stated that the children and herself had developed a good rapport and were moving in a direction to find some resolve over the contact resistance refusal dynamics. She further stated that she believed there was an opportunity for the children to voluntarily start regaining contact in a relationship with the Father “if given a little more time” (see the email from Ms B to the Mother’s solicitor dated 5 October 2021). In this context, the Court takes into account the evidence and recommendations of the family report writer that no Orders should be made by the Court until it has received information from the family therapist regarding the children’s views.
In light of the above views and statements of Ms B, including the evidence and recommendations of the family report writer, the Court has a significant concern that if it was to now order the children to begin spending supervised time with the Father, as proposed by him, there is a real risk that the children will resist this occurring and become oppositional to spending such time with the Father thus putting at risk the prospect of the children re-establishing their former meaningful relationship with the Father in a timely fashion. In the event that such risk comes to pass, the apparent progress that the children have made in their therapy with Ms B may be adversely affected. The Court acknowledges that it is possible that the Mother has influenced the children’s views as expressed to the family report writer and the family therapist, being an issue that can be tested at a final hearing, however, the Court nevertheless takes these views into account at this interim hearing.
The Court should state that following the compliance hearing and call over on 4 November 2021, the Court directed that the Court would shortly advise the parties and ICL of final hearing dates for these parenting proceedings, with an estimate of 3 days. The Court is now in a position to set this matter down for hearing and will allocate a final hearing date commencing 6 April 2022, being a date allocated just after the 1 April 2022 review of family therapist, Ms B.
The Court has considered all the Father’s submissions in relation to his present interim proposals relating to supervised time between the children and himself.
Inter alia, the Father submits that his proposal is that supervised visitation commences immediately, using Ms B as a support mechanism. He submits that the longer the delay continues, before supervised visitation commences, “the bigger the impact and buildup will be for the children.”
As to using Ms B as a support mechanism, the Father seeks to obtain some support from Ms B’s reply email to the Father of 1 October 2021, last paragraph (ie “Alternatively, if Judge Newbrun assesses…. thereafter.”) In relation to that last paragraph, Ms B had stated to the Mother’s solicitor in her email to him of 5 October 2021, “In regards to Mr Caffrey’s email to me last week.. My reply was based on an assumption not a recommendation. That is, If the Court ordered the children to start supervised visits now (soon after 8 October court date), would I be willing and experienced enough to prepare the children for this? My answer was yes to both and recommended that if Judge Newbrun was to make such an order that I (or someone suitably experienced in complex family matters) should work with the children and the parents.”
Again, the Court has a significant concern that if it was to now order the children to begin spending supervised time with the Father, as proposed by him, there is a real risk that the children will resist this occurring and become oppositional to spending such time with the Father thus putting at risk the prospect of the children re-establishing their former meaningful relationship with the Father in a timely fashion. At this interim hearing, the Court is acting cautiously and conservatively and is of the view that Ms B’s opinion that the children are now not ready to begin spending time with the Father should be taken into account by the Court, and the Court would regard that opinion as important at this interim hearing. Whilst it is possible that Ms B could possibly manage the above discussed real risk of resistance and opposition by the children to spending time with the Father, there is a real risk that she will not so manage that risk with the potential for adverse outcomes in relation to the timely re-establishment of the children’s time of the Father. It will not be in the best interests of the children that they now begin to spend supervised time with the Father. Family therapy should continue in the lead up to the final hearing in early April 2022.
These Reasons have discussed the relevant considerations under section 60CC of the Act, being the primary considerations in particular. Evaluating such discussed relevant considerations, it will be in the best interests of the children to make the following interim parenting Orders:
1.That the Father’s Application in a Case filed 27 April 2021 be dismissed.
2.That the Father’s interim applications to spend supervised time with the children, as set out in his summations emails to the Court dated 6 September 2021 and 8 October 2021 be dismissed.
3.The parties shall continue to engage in family therapy with Ms B, together with the children, as recommended by Ms B.
4.These parenting proceedings are set down for final hearing on 6 April 2022, estimate three days.
5.Direct the ICL to inform the family report writer of the above final hearing date within 7 days.
THE COURT ORDERS IN CHAMBERS THAT:
1.Five days prior to the final hearing, the parties must file a jointly agreed statement of issues and agreed facts of no more than 2 pages, such statement is to include particulars of each issue to be determined by the Court at final hearing.
2.For documents to be marked as exhibits, a tender bundle will need to be created of the scanned subpoena material or other documents. Without leave of Judge Newbrun, a 30 page limit is imposed.
3.Each tender bundle is to be created with an index and paginated.
4.Tender bundles are required to be forwarded to the associate inbox [email protected] not later than 2 business days prior to the hearing and electronically exchanged with the other parties.
5.The parties are granted leave to photocopy material produced under subpoena for the purposes of preparation of the tender bundle for the final hearing.
6.Direct each party file and serve a Case Outline directly by email to the associate inbox [email protected] not less than 7 days prior to the commencement of the final hearing setting out:
a.A precise Minute of Orders sought;
b.A list of documents to be read in their case;
c.A chronology of events;
d.Issues in dispute;
e.A brief summary of argument touching upon the matters set out in s 60CC of the Family Law Act 1975 (Cth) with reference to the relevant evidence relied upon; and
f.A list of authorities to be relied upon.
g.A schedule of objections to be taken to material (and the parties shall confer prior to hearing and endeavour to reach an agreed position on how those objections will be dealt with);
h.Issues in dispute;
i.A joint balance sheet; and
j.A brief summary of argument touching upon the matters set out in ss.79/90SM and 75(2)/90SF(3) of the Family Law Act 1975 with reference to the relevant evidence relied upon.
THE COURT NOTES THAT:
(a)The provision of any documents to the Court pursuant these Orders does not place those documents into evidence and such documents shall only be accepted as evidence at the Court’s discretion in the usual manner.
(b)All the attendant Rules of Court, responsibilities and restrictions remain applicable, including restriction on publication of court proceedings pursuant to s 121 of the Family Law Act 1975 (Cth).
(c)Tender bundles that do not comply with the index, pagination and delivery directions will be rejected and be unable to relied upon at the hearing without leave first being had and obtained.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 9 December 2021
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