Cagnani & Anor & Stankic (No 2)

[2015] FamCA 1176

FAMILY COURT OF AUSTRALIA

CAGNANI AND ANOR & STANKIC (NO. 2) [2015] FamCA 1176

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father and paternal grandmother seek orders for increased time with the children – Where the children live with the mother and the father has not spent time with the children in over nine months – Where the mother opposes unsupervised time – Where the mother alleges that the father poses a risk to the children – Where the ICL and single expert support the father having increased time with the children and on an unsupervised basis – Orders made. 

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA

Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348

FIRST APPLICANT:	Mr Cagnani
SECOND APPLICANT:	Ms O Cagnani

RESPONDENT: Ms Stankic

INDEPENDENT CHILDREN’S LAWYER: Mr Baker

FILE NUMBER: SYC 5204 of 2013

DATE DELIVERED: 24 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 22 December 2015

REPRESENTATION

COUNSEL FOR THE FIRST &

SECOND APPLICANTS:

Ms Kennedy

SOLICITOR FOR THE FIRST &

SECOND APPLICANTS:

Vizzone Ruggero Twigg Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Macpherson & Kelley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

Orders pending further order that:

1. Unless otherwise agreed,  the children, B born … 2002 and C born … 2005, (“the children”) are to spend time with the father and the paternal grandmother on a fortnightly basis as follows:

   1.1.In week 1: On Saturday or Sunday (as agreed between the parties) from 11.00 am until 4.00 pm; and

   1.2.In week 2: On Monday from after school, or 2.30 pm on a non-school day, until 6.30 pm; and

   1.3.At all other times as agreed between the parties.

2. The father is restrained from taking the children to the former matrimonial home being the property known as and situated at Suburb J, in the State of New South Wales.

3. Unless otherwise agreed, the time the children spend with the father and the paternal grandmother shall be at the paternal grandmother’s home and the father shall ensure that the only people, in addition to the paternal grandmother, who are present when the father spends time with the children are members of the children’s family or school aged friends of the children.

4. Unless otherwise agreed, for the purposes of the children spending time with the father and the paternal grandmother on the Monday evening pursuant to Order 1.2 above, the father or the paternal grandmother shall collect the children from the children’s school at the commencement of their time with the children and shall return them to McDonald’s Suburb F.

5. Unless otherwise agreed, for the purposes of the children spending time with the father and the paternal grandmother during school holidays, weekends and public holidays, the father or the paternal grandmother shall collect the children from McDonald's Suburb F at the commencement of their time with the children, and shall return the children to McDonald's Suburb F at the conclusion of their time with them.

6. The mother shall ensure that Mr Z is not in attendance at changeovers of the children’s time with each parent and the paternal grandmother.

7. The children are permitted to have telephone contact with the father on Christmas Day, Tuesdays, Thursdays and Saturdays, at a time to be agreed between the parties, for a period not exceeding one hour, provided that any telephone conversation is permitted to come to its natural conclusion when the children wish to terminate the discussion and:

   7.1.the mother will make the children available to take the telephone call and will permit the children to speak privately and uninterrupted; and

   7.2.if the children receive a missed call, the mother will ensure that the children will telephone the father as soon as practicable.

8. During the periods that the children are not in the mother's care, the mother shall be permitted to have reasonable telephone/SMS/FaceTime/Skype or other electronic contact with the children and:

   8.1.the father will make the children available to take the call and will permit the children to speak privately and uninterrupted; and

   8.2.if the children receive a missed call, the father will ensure that the children will telephone the mother as soon as practicable.

9. In the event that either of the children are ill and/or injured and require medical treatment, the party who has the care of that child at that time is to:

   9.1.notify the other party as soon as reasonably practicable; and;

   9.2.provide the other party with notice as to the contact details as to where the child is being treated, including an address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner. 

10. The mother, the father and the paternal grandmother are restrained from:

    10.1.denigrating one another or members of the other party’s household and family and shall ensure that no other person shall denigrate the mother, father or paternal grandmother in the presence and/or hearing of the children or either of them;

    10.2.discussing the proceedings with the children and shall do all things necessary to ensure that no other person discusses the proceedings with the children;

    10.3.approaching the other party’s place of work.

11. Within fourteen (14) days of the date of these Orders, the mother and the father are to contact Ms RR or Dr Lucia VV, or such other therapist as nominated by the Independent Children’s Lawyer, to make an appointment for individual therapy.

12. The reports of Dr G dated 9 February 2015 and 17 December 2015 are to be provided by the Independent Children’s Lawyer to such treating therapist, as referred to in Order 11 above.

13. The reports of Dr G dated 9 February 2015 and 17 December 2015 are to be released to the father’s psychologist, Mr EE, Psychologist, who shall consult the father to address the issues raised in those reports.

Notation

1. Nothing in these Orders is to be taken as restricting the ability of the children to contact, visit and spend time with other members of the paternal family as is appropriate, having regard to the children’s educational, family and other commitments.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cagnani & Stankic (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5204 of 2013

Mr Cagnani

First Applicant

And

Ms O Cagnani
Second Applicant

And

Ms Stankic

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings concerning the parties’ two children, B born in 2002, currently aged 13 years, and C born in 2005, currently aged 10 years.

2. With the exception of two occasions at paternal family member’s funerals, the father has not spent time with the children since 9 March 2015. Both the father and the paternal grandmother have sought orders to spend time with the children.

3. The mother consents to the children spending time with the father and paternal grandmother but submits that that time should be limited to visits of a few hours and should be under supervision.

Background

1. The following background is relevant to the consideration of this matter.

   a)The father, Mr Cagnani, was born in 1971 and is currently aged 43. The mother, Ms Stankic, was born in 1974, and is currently aged 41.

   b)The parties commenced a relationship in approximately 1992 and were married in 1997. The parties separated on 15 March 2013.

   c)On 21 November 2013 Senior Registrar Campbell made orders for the children to spend time with the father as follows:

   a.During school terms from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend provided that during such time the father lives at his parent’s home at [D Street, Suburb E], commencing on 22 November 2013;

   b.For one week in the second half of the Christmas school holidays in 2013/2014, the precise week to be agreed between the parties or failing agreement the second last week of those school holidays. That week will commence at 5.30 pm on Monday and will conclude at 5.30 pm on the Monday that next follows;

   c.From 2.00 pm on 25 December 2013 to 5.00 pm on 26 December 2013;

   d.In February 2014 on each of the children’s birthdays from the conclusion of school to 6.00 pm;

   d)In September 2014 the mother unilaterally suspended the time that the children were to spend with the father as a result of her concerns that the children were at risk in his care. In response, the father sought orders that the children spend time with him each alternate week from after school Thursday until before school on the following Tuesday.

   e)The father’s application was considered by Aldridge J on 17 November 2014 and his Honour delivered judgment on 20 November 2014.[1]

   [1] Cagnani & Stankic [2014] FamCA 1216.

   f)Leaving aside special days such as birthdays, Father’s Day and Mother’s Day, his Honour ordered that the children live with the mother and spend time with the father as follows:

   a.During school term, from the conclusion of school on Friday to the commencement of school on the following Monday each alternate weekend, provided that such time the father lives at his parent’s home at [D Street, Suburb E]. Such time to commence on Friday 21 November 2014, with the father to collect and deliver the children to and from school.

   b.During the school holidays, from 4.00 pm on the first Saturday after the conclusion of the school term until 4.00 pm the following Saturday and thereafter each alternate week from 4.00 pm Saturday until 4.00 pm the following Saturday.

   g)Prior to making those orders Aldridge J considered the events affecting the parties at that time which his Honour summarised as follows:

   8. The mother asserted that the children were at risk when with the father. The precise nature of that risk was never clearly identified but the assertions seem to flow from two matters raised by the mother. The first was that there was [in] September 2013 an explosion at the former matrimonial home at [Suburb J] (“[J] property”). The father’s brother and a friend of his were severely burnt in the explosion, which was subsequently investigated by police.

   9. On 22 September 2014 a police officer provided the mother with a letter advising her that:

   [M] police are currently conducting an ongoing criminal investigation into the apparent clandestine laboratory and explosion.

   10. The father has not been charged with any offence and, he says, has not been interviewed by police. The evidence at it presently stands does not persuade me that there is an unacceptable risk that if the children were to spend time with the father they would be exposed to criminal behaviour. At best, the evidence discloses that a year after the explosion the police are still conducting an investigation into what they suspect might be a clandestine drug laboratory.

   11. The second matter is that following the explosion the father took the children to the damaged premises on some occasions. The mother’s evidence was that they became upset by this and by seeing the damage to their former home, and by visiting their uncle who was badly burnt in hospital.

   12. On 6 February 2014 the father executed a written undertaking to the Court. It was filed on 11 February 2014 and it is in the following terms:

   (1) When the children are in my care they will not attend the property situated at [Suburb J] in the state of New South Wales, the [J] property, whether by way of entering the property or the grounds of the property.

   (2) That I will not take the children to the hospital to see my brother [Mr L] and my friend [Mr N].

   13. In response to assertions that he had breached the undertaking the father, in an earlier affidavit, denied that he had done so. 

   14. Contrary to order 12 made by Senior Registrar Campbell, which was that “Neither party shall interrogate the children about events or conversations in the household of the other parent”, the mother interrogated the children as to whether or not they had been taken to the [J] property.  They denied to her that he had done so. 

   15. The husband’s and the children’s denials were not true. 

2. On 5 December 2014 the father took the children to Queensland and returned to Sydney with them on 12 December 2014. The mother expressed concern that the children were present when the father met with two single male friends during the course of the visit.

3. In his affidavit filed 19 November 2015 the father acknowledged that he met with two friends during the Queensland trip. The father’s evidence is that the meeting occurred by coincidence as a result of running into the two friends at Surfers Paradise. The father asserted that the children subsequently enquired about the father’s two friends and met one of the friend’s children and family at a theme park.

4. On 9 February 2015  Dr [HH], senior forensic scientist at the Attorney General’s Department of South Australia, provided a toxicology report in respect to a sample of hair taken from the father.[2] The report stated that the hair sample was taken on 12 December 2014. The mother alleges that that was the date of the father’s return from Queensland when he had responsibility for the children. The toxicology report set out the following “results of analysis”:

   1.The hair segment contained approximately;

   (1) 110 pg methamphetamine per mg

   (2) 30 pg cocaine per mg

   2.No other drugs were detected in the hair…

   3.No drugs were detected in the external wash of the hair…

   [2] Annexure “D” to the mother’s affidavit filed 19 March 2015.

5. The report noted that:

   Hair grows at an average rate of approximately 1 centimetre per month. The amount of hair analysed would approximately cover the three months prior to the sampling.

6. In a supplementary report dated 12 May 2015 Dr [HH] provided the following further explanation of the test procedure:[3]

   [3] Annexure “H” to the father’s affidavit filed 19 November 2015.

   The Society of Hair Testing guidelines suggest a wash step is one of the decontamination strategies which may be used to assess external contamination. In the FSSA procedure we subject the hair to a brief methanol wash prior to the extraction of drugs. This wash is done to remove any external contamination from the hair but may also leach some of the drugs out of the hair, particularly in highly concentrated samples.

   Low levels of drug in the wash, typically up to 10% of that in the hair, are unlikely to be the result of contamination, but rather to result from leeching and to be indicative of drug use. Levels in the wash greater than 50% of that in the hair are unlikely to result solely from leaching out of the hair and indicate association with the drug which may or may not include drug use.

   In this case the level of methamphetamine in the hair was 110 pg per mg but it was not protected in the wash. This means the level in the wash was less than 20 pg per mg and therefore the wash to the hair ratio was less than 20% and was possibly solely due to leeching out of the hair and less likely to be due to recent contamination from external exposure.

   (Emphasis added)

7. In response to the positive toxicology report, at paragraph 44 of his affidavit filed 19 November 2015,  the father provided the following explanation:

   As I am currently working in commercial and domestic rubbish removal, my job involves delivering mini skip bins to commercial and domestic premises. Once the bins are full, I then attend the premises to collect the bins containing the rubbish and deliver the rubbish to Recycling Centres and “Tip Centres”. Once at the Recycling and “Tip Centres”, I empty the rubbish from the skip bins. Sometimes I am required to man handle the rubbish to get it out to the skip bins. At times, I need to jump on top of the skip bins to put covers over them so that the rubbish and debris does not fall off the truck, which at times involves actual physical contact with the rubbish. Again I maintain that the toxicology results reflect my exposure to contaminants.

8. At paragraph 38 of his affidavit, the father specifically stated: “At no point did I or have I ever consumed methyl amphetamine.”

9. In his affidavit filed 19 November 2015, the father acknowledged having previously consumed cocaine in a social context but denied that he used cocaine regularly. The father apologised for not providing the correct information in that respect to Dr G, the single expert appointed by the Court who has prepared an expert report in respect to parenting matters dated 9 February 2015 as well as an updated report dated 17 December 2015.

10. Further, the father’s counsel noted that in the period from 5 November 2013 to date the father has undergone 11 urinalysis tests and they have all been negative in respect to revealing the presence of illicit substances in the father’s urine.[4]

    [4] Father’s affidavit filed 19 November 2015 at paragraph 59 and Exhibit 4.

11. Counsel for the mother submitted, however, that the supplementary toxicology report provided by Dr HH dated 12 May 2015 establishes that it is more likely than not that the presence of methamphetamine traces in the father’s hair on 12 December 2014 was due to ingestion of methamphetamines and less likely to be due to recent contamination from external exposure.

12. On 7 October 2015, the Court made orders permitting the children to attend the funeral of their paternal aunt, Ms Q, on 8 October 2015 and for the children to spend time with the paternal grandparents each Sunday from 11.00 am until 4.00 pm and at all other times as agreed between the mother and the paternal grandparents. Order 7 specifically provided that the father was “not to be in attendance at the paternal grandparent’s residence at such times when the children are spending time with the paternal grandparents”.

13. Unfortunately, the paternal grandfather subsequently passed away and on 6 November 2015 the Court made further interim orders permitting the children to attend their grandfather’s funeral. The orders made on 7 October 2015 permitting the children to spend time with the paternal grandparents were also varied to reflect the paternal grandfather’s recent passing and to provide some additional flexibility to allow the children to spend time with their paternal grandmother on either Saturday or Sunday.

Approach of the Court

1. The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for parenting orders on an interim basis. At 80,903 - 80,904, under the subheading "How should interim proceedings be conducted?", the Full Court states:

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

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Orders sought

1. By way of an Amended Minute of Orders received  on 22 December 2015, the father and the paternal grandmother sought the following orders:

   1.         That the children spend time with the father as follows:-

   a.from noon 25 December 2015 to 5.00 p.m. 8 January 2016;

   b.from noon 22 January 2016 to 5.00 p.m. 25 January 2016.

   c.commencing 29 January 2016, each alternate weekend from after school Friday until return to school Monday;

   d.commencing in 2016 half of all school holidays in each  year commencing 2016 and each year will alternate from the first half of each school holiday to the alternate second half of each second holiday;

   e.from 10.00am on Easter Saturday to 12.00 noon Easter Monday each  alternate year commencing in 2016 and from 10.00 am Easter Sunday until 12.00 noon Easter Monday each alternate year commencing in 2017;

   f.from noon on 25 December  to 7.00 p.m. on 26 December commencing   2017 and each year;

   g.for three hours on the father's birthday from after school until 7.30 pm should such day fall on a school day or from 2.00pm until 8.00pm should such day fall on a public holiday/weekend or school holiday;

   h.for three hours on each of the children's birthday from after school until 7.30 pm should such day fall on a school day or from 10.00 am until 1.00pm should such day fall on a public holiday/weekend or school holiday.

   i.the Father shall not have the children on the weekend which includes Mother's Day but in substitution the Father will have the children with him on the following weekend at the same times as set out in 1 (c) above;

   j.the Mother shall not have the children on the weekend which includes Father's Day but in substitution the Mother will have the children with her on the following weekend at the same times as set out in 1 (c) above; and

   k.such further times as the parties may agree, from time to time.

   2.That during the periods that the Father spends time with the children the children shall sleep at the home of the paternal grandmother until such time as the Father secures accommodation with a bedroom for the children.

   3.That the Father is restrained from taking the children to the former matrimonial home.

   4.For the purposes of the children spending time with the Father, during school term, the Father or his nominee shall collect the children from their school at the commencement of his time with them and return them to their school at the  conclusion of his time with them.

   5.For the purposes of the children spending time with the Father, during school holidays, weekends and public holidays, the Father or his nominee shall collect the children from McDonald's [Suburb F] at the commencement of his time with them and return them to McDonald's [Suburb F] at the conclusion of his time with them.

   6.The children be permitted to have liberal telephone contact with the father and the paternal family and the children shall be encouraged to telephone the father and/or paternal family when they wish to and:

   a.The Mother will make the children available to take the call and will permit  the children to speak privately and uninterrupted.

   b.If the children receive a missed call, the Mother will ensure that the children will telephone the Father as soon as practicable.

   7.During the periods that the children are not in the Mother's care, the Mother shall be permitted to have reasonable telephone/SMS/FaceTime/Skype or other electronic contact with the children and:

   a.The Father will make the children available to take the call and will permit the children to speak privately and uninterrupted.

   b.If the children receive a missed call, the Father will ensure that the children will telephone the Mother as soon as practicable.

   8.That in the event that either of the children are ill and/or injured and requiring medical treatment, the party who has the care of that child at that time:

   a.Notify the other party as soon as reasonably practicable; and;

   b.Provide the other party with notice as to the contact details as to where the child is being treated, including an address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.

   9.The maternal grandmother shall spend time with the children during periods which coincide with the Fathers time with the children.

   10.That the reports of Dr [G] dated 9 February 2015 and 17 December 2015 be released to [Mr EE] Psychologist who shall consult the father to address the issues raised in the report.

   11.That the Mother, Father and Paternal Grandmother are restrained from:

   a.Denigrating one another or members of the other party’s household and family and shall ensure that no other person shall denigrate the Mother, Father or Paternal Grandmother in the presence and/or hearing of the children or either of them ;

   b.Discussing the proceedings with the children and shall do all things necessary to ensure that no other person discusses the proceedings with the children.

   c.Approaching the other party’s place of work.

2. The Independent Children’s Lawyer (“the ICL”) sought orders substantially in terms of paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11 of the orders sought by the father and the paternal grandmother. In addition, the ICL sought the following:

   11.      That the parents forthwith and within 7 days contact [Ms RR] or Dr      [VV] or such other therapist as nominated by the         Independent Children’s        Lawyer to make an appointment for individual       therapy.

   12.      The report of Dr [G] dated 9 February 2015 and 17 December 2015     be provided to such therapist by the Independent Children’s Lawyer.

3. The orders proposed by the mother were as follows:

   1.That the children [B] born … 2002 and [C] … 2005 live with the Mother.

   2.That Orders 3 to 7 of the Orders made on 7 October 2015 be vacated.

   3.That forthwith the parties do all things and sign all documents necessary for Bridging Families to provide a professional supervisor to supervise the time between the Father and Paternal Grandmother and the children at the cost of the Father and the Paternal Grandmother.

   4.That forthwith the Father and Paternal Grandmother do all things and sign all documents necessary to register their details with Interrelate at … (supervised contact centre), noting that the Mother has already registered her details.

   5.That the parties do all things necessary to attend any intake interviews required by Interrelate within 7 days of being requested to do so.

   6.That the children spend time with the Father/Paternal Grandmother under the supervision of a supervisor from Bridging Families as follows:

   (a)       During school terms:

   i.from after school on Mondays until 6.30pm, and for the purpose of changeover, the supervisor will collect the children from school at 2.30 pm and the supervisor return the children at McDonalds at [Suburb F] at 6.30pm.

   (b)       During school terms and during school holidays:

   i.each 4th Sunday, commencing Sunday, 27 December 2015 and that the supervisor collect the children from McDonalds at [Suburb F] at 11am and the supervisor return the children at McDonalds [Suburb F] at 2pm on each 4th Sunday.

   7.That in the alternative to Order 6 the Father/Paternal Grandmother spend time with the children at Interrelate at such times as Interrelate may facilitate time and as agreed between the parties.

   8.That the Father and Paternal Grandmother be restrained from:

   (a)Denigrating the Mother or members of the Mother’s household and family in the presence and/or hearing of the children or either of them;

   (b)Discussing the proceedings with the children and shall do all things necessary to ensure that no other person discusses the proceedings with the children.

   (c)Approaching the mother’s place of work;

   (d)Otherwise approaching the children, the children’s school that they may attend from time to time, the children’s sporting venues they may attend from time to time and the children’s residence from time to time, other than in accordance with these Orders.

   (e)Removing [B’s] (and [C’s], in the event she has one) mobile phone from her during their time with her.

   9.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

   10.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

   11.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

The Law

1. While it is not possible to determine disputed issues of fact in interim proceedings, the Court is nonetheless required to have regard to such evidence that is available concerning the potential risk to children. In that respect, the Full Court in Deiter & Deiter[5] said that it is a task that "cannot be postponed until the last piece of evidence is given and tested, and the last submission is made...”[6]

   [5] [2011] FamCAFC 82 at [61].

   [6] See also George & George [2013] FamCAFC 182 at [21] and more recently Galloway & Duke [2014] FamCA 569 at [15], Dixon & Dixon [2014] FamCA 686 at [22] and Appleby & Appleby [2015] FamCA 138 at [5].

2. In undertaking that task, the Full Court has suggested that a conservative approach may be appropriate. In that respect counsel for the mother referred to Marvel & Marvel (No. 2)[7] where the Full Court  said

   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… 

   [7] (2010) 43 Fam LR 348 at [120].

3. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in deciding whether to make a parenting order, the Court "must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in section 65AA.

4. Section 60CC sets out what has been described as a "legislative pathway" to determine what is in a child's best interests.

5. In Blinko & Blinko,[8] the Full Court discussed the appropriate approach in dealing with issues of risk including the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised the relevant authorities as follows:

   
   It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:

   ·If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;

   ·If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;

   ·Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley(1995) FLC 92-623.

   [8] [2015] FamCAFC 146 at [83].

6. In Blinko (supra), the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk and in that respect said:

   A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261.[9]

   [9] Ibid at [27].

7. The Court has given consideration to the matters set out in section 60CC generally but will concentrate on those considerations which are of greatest relevance to this matter.

Section 60CC considerations

1. It is appropriate for the Court to consider the submissions of the parties in the context of the section 60CC considerations.

2. The most relevant considerations are the primary considerations which are set out in section 60CC(2). They are as follows:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents.

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The legislation recognises that these two primary considerations may, at times, be competing. Accordingly, section 60CC(2A) provides that in applying or balancing the two primary considerations “…the court is to give greater weight to the considerations set out in paragraph 2(b).”

Section 60CC(2)(a) - Benefit of the children having a meaningful relationship with both of their parents

1. Counsel for the father submitted that there has now been a break in the relationship between the father and the children for a period of nine months. During that period the father has seen the children only in the context of their paternal aunt’s funeral in October 2015 and their paternal grandfather’s funeral in November 2015.

2. Counsel for the father further submitted that the children, and in particular the older child, are now at an age where they will start to develop their own friendships and interests and, as a result, there is a small window of opportunity available for him to establish a meaningful relationship with the two girls.

3. Reference was also made to the updated report of Dr G and in particular to paragraph 103 wherein Dr G stated:

   … I think that any potential risks to the children in the care of the paternal family are outweighed by the benefits conferred to them by active involvement with their extended family.

4. The mother acknowledges that the children “deserve to have and maintain an ongoing relationship with the father” but submits that the relationship must be “in a positive and safe environment.” However, counsel for the mother submitted that the children’s relationship with the father is “conflicted” and requires a great deal of careful management.

5. The ICL expressed concern that, in her initial report, Dr G noted that both children said that they missed their father and wished to spend more time with him. The ICL noted that, in her updated report, Dr G noted that the older child, in particular, was a little more reserved in that respect.

6. Counsel for the father submitted that the presence of supervision, either at a contact centre or at the paternal  grandmother’s home, created an artificiality which would impede the children having a “meaningful relationship” with their father and the paternal grandmother. In fact counsel for the father indicated that the father is so concerned about the potential impact of such supervision that he would prefer to forgo his time with his children rather than subject them to having to spend time with him and their paternal grandmother under those conditions.

7. The ICL also believed that supervision of the children’s time with their father and the paternal grandmother was unnecessary and would impede upon the children having a meaningful relationship with each of them.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Counsel for the father noted the views expressed by Dr G at paragraph 107 of her updated report that, despite recognising a history of past drug use, she did not consider that the father “poses an unacceptable risk to the children”.

2. Counsel for the father submitted that, while Dr G noted personality and character flaws in respect to the father, those flaws are best to be addressed in a therapeutic context. Specifically, it is proposed that Dr G’s two reports should be provided to the father’s treating psychologist, Mr EE. The ICL submitted that, in light of the ongoing acrimony between the parents, both parents should have individual therapy with either Ms RR or Dr VV.

3. Both counsel for the father and the ICL submitted that the father did not present a physical risk to the children and the greatest risk to the children’s psychological health is rather the ongoing acrimony between the father and the mother.

4. Both counsel for the father and the ICL submitted that there needs to be a change in attitude on the part of both parents and that the therapeutic context is the most effective way of dealing with that issue.

5. Counsel for the mother submitted that the children are particularly at risk of psychological and emotional harm when in the care of the father.

6. Counsel for the mother also submitted that the paternal grandmother has failed to protect the children from this risk of harm, lacks insight to recognise potential risk of harm in the father’s care and/or accepts that the father has behaved in such a way that exposes the children to such risk. Accordingly, counsel for the mother submitted that any time that the children spend with the father should be supervised.

Additional considerations

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

1. Counsel for the father noted that both children have expressed a desire to spend time with their father. Although it was recognised that the child B is presenting with signs of “litigation fatigue” and has expressed the view that she would like “the adults to sort it out”.[10]

   [10] Updated report of Dr G dated 17 December 2015 at paragraph 64.

1. It was submitted that, despite a period of nine months of not seeing their father, the children maintain a strong bond with him.

2. Counsel for the mother acknowledged that the children have expressed a desire to spend overnight time with the father, however, submitted that on an interim basis the Court must balance the children’s views “in an extremely complicated and complex family dynamic.”

3. The ICL noted an apparent softening of B’s desire to spend time with her father and expressed the view that steps should be taken to ensure that the children maintain their relationship with their father and the paternal family before those relationships further diminish.

Section 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons

1. In terms of section 60CC(3)(b) counsel for the father submitted that the children have an excellent relationship with their father and strong bonds to other members of the paternal family, including their paternal cousins.

2. It was also noted that Dr G commented on the importance of maintaining those broader relationships.

3. The ICL supported those submissions of counsel for the father. In that respect he also submitted that the presence of a supervisor would create an element of artificiality in the children’s relationship with their father, paternal grandmother and other members of the paternal family.

4. Counsel for the mother, on the other hand, submitted that since the parties’ separation in March 2013 the children have not spent the time that is now being proposed by the father and the ICL, in the care of the father or the paternal grandmother and/or away from the care of their mother.

Section 60CC(3)(c) - the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.

1. Counsel for the father submitted that while the father has not been permitted to have any input into any decisions of significance as to long term issues for the children since separation, he has taken the opportunities available to him to attend the girl’s sporting games and to spend time with them. It was submitted that the mother’s “unilateral” suspension of the girl’s time with the father has dramatically impacted upon the father’s capacity to participate in and spend time with the children.

Section 60CC(3)(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

1. Counsel for the father noted that the father continues to pay money to the children’s school on a weekly basis for their school fees.

2. On the other hand, counsel for the mother submitted that the father has not fulfilled his obligation to contribute to the maintenance of the children.

Section 60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person.

1. Counsel for the mother submitted that the orders proposed by the father and the ICL provide for a significant change in the current arrangements for the children, who since separation have not had significant periods of time away from the care of the mother.

2. Counsel for the father referred to the updated report of Dr G and submitted that the proposal of the mother for the children to spend supervised time with the father and the paternal family was an inappropriate change that would confuse the children in circumstances where the children enjoy “a naturalistic relationship with the paternal family” that does not require supervision.[11]

Section 60CC(3)(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

[11] Ibid at paragraph 106.

1. Counsel for the father noted that the parents are struggling to meet expenses relating to the children including school fees and that neither parent can afford the cost of supervision.

2. It was submitted supervision of the children’s time with the father at a contact centre was not practical as there is no detail as to when a centre will become available, and again, the costs of supervision cannot be borne by the parties.

Section 60CC(3)(f) - the capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Counsel for the mother argued that the father has failed in his obligations as a parent to properly meet the needs of the children and to protect them from being exposed to harm. In that respect reference was made to the views expressed by Dr G in her reports. In particular, at paragraphs 88 to 91 of her updated report, Dr G’s comments on her assessment of recordings of the father’s telephone conversations with the children. Dr G states:

   88. On listening to the telephone conversations, I noted that the father appears entirely insensitive to the children’s experiences and unresponsive to their earnest attempts to engage with him. In the case of the conversation with [B], she appears to try to manage the conversation by diverting her father, by providing neutral conversation topics and ultimately by providing comfort to him when he expresses his distress. [The father] ignores these efforts and instead blames the mother, raises financial concerns, and asserts that he will not see her for a very long time. He appears to be unable to respond to her cues when she discusses school and talks to him about everyday things.

   89. In the second conversation, [the father] comes across as emotional manipulative when he says “obviously you don’t want to talk to dad” and blames the children for failing to communicate with him. He appears to forensically question the children about their whereabouts and their lack of response to his emails.

   90. I was most concerned about the degree to which the father appeared to be immature and needy in his relating to the children to the extent that they [and most particularly [B]] take on the adult role in the relationship in managing his emotional state.

   91. These conversations are consistent with the view that I initially took of the father, in terms of his lack of insight into the children’s experience and his inability to refrain from criticising the mother…

2. Counsel for the father acknowledged that the father has deficiencies in his approach to parenting, but argued that the father may gain some assistance if he continues to attend upon his psychologist and work through the matters identified by Dr G.

Section 60CC(3)(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

1. It is noted that the recent funeral services were conducted by way of cultural traditions associated with the parental family’s Italian background. The children participated in those services in the company of other members of the parental family, including their cousins to whom they are close to. It is important for the children to maintain that cultural connection.

2. In terms of maturity, it is of concern that the parental conflict may be unjustifiably requiring the children, and in particular B, to take on a role that is beyond the expected maturity of a child of that age. In particular, it is of concern that Dr G has referred to the fact that B appears to take on an adult role in her relationship with the father “in managing his emotional state.”[12] This, it is noted by Dr G, “is likely to cause [B] emotional distress at times.”[13]

   [12] Ibid at paragraph 90.

   [13] Ibid at paragraph 91.

3. The children are entitled to a childhood. They are not of sufficient maturity that they should be expected to deal with either of their parent’s emotional challenges and that burden should not be placed on them.

Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There is no doubt that each of the parents are devoted to their children. However, it is also clear that the acrimonious nature of their relationship presents a significant psychological risk to the children.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. The Court has significant concerns regarding the positive toxicology report dated 9 February 2015. As noted that report stated that the hair segment taken from the father on 12 December 2014 contained approximately:

   (1) 110 pg methamphetamine per mg

   (2) 30 pg cocaine per mg

2. Also of concern is the additional information provided in Dr HH’s supplementary toxicology report dated 12 May 2015. As noted, that further report states that the presence of the illicit substances is “less likely to be due to recent contamination from external exposure.” Counsel for the mother submitted that it is therefore more probable than not that the presence of the chemicals was a result of ingestion by the father.

3. In these interim proceedings the Court is not in a position to make findings of fact on such a controversial issue. Indeed it is noted that, pursuant to the orders made on 14 August 2015, Dr HH and Dr TT are to prepare a joint single expert statement on these matters which will be considered at final hearing.

4. Nevertheless, in so far as the Court is required to identify risk and, in so far as it is possible, to protect children from exposure to that risk, the Court cannot ignore that positive toxicology report.

5. In her updated report, Dr G expressed considerable concern that the father had failed to previously disclose to her that he had taken cocaine, albeit, according to the father, on a limited number of occasions. Further, the Court cannot ignore the possibility that, contrary to the father’s assertion, he may have in fact taken methamphetamines.

6. While the Court notes Dr G’s observation that the father does not appear to be affected by illicit substances, the fact that he has consumed cocaine, and possibly methamphetamines, means that he has been in the company of a person or persons who have provided one of those illicit substances to him.

7. It was the submission of counsel for the mother that such contact may well have occurred when the father took the children to Queensland in December 2014. Again, in these interim proceedings, I am unable to make a positive finding of fact in that respect. I am, however, required to make orders which are in the best interests of the children. In my view it would not be in the best interests of the children for them to be exposed to a person or persons who possess and/or supply illicit substances. I will therefore make orders to minimise that risk.

8. Finally, while it is not alleged by either parent that the children have been exposed to family violence, I note the submission by counsel for the father that presence of the mother’s current partner, Mr Z, at changeover has the potential to increase tension in what is an already acrimonious relationship. In so far as it is possible to reduce that element of risk, it is appropriate to do so.

Summary

1. Counsel for the father acknowledged that the father has issues to address in respect to his character and parenting capacity. It was submitted, however, that the appropriate means of addressing those issues is through therapeutic intervention rather than by supervision of the father’s time with the children.

2. Further, it was submitted that requiring the father’s time with the children to be supervised introduces unnecessary oversight in circumstances where the children are not exposed to physical risk. Moreover, it was argued that requiring such supervision would actually reinforce to the children what counsel for the father described as “the weirdness” of their family and, in particular, that their parents are involved in an ongoing acrimonious dispute.

3. The ICL essentially supported the submissions of the father in that respect.

4. On the other hand, counsel for the mother argued that the father undergoing therapeutic intervention would not address the risk factors that the children are exposed to. Those risk factors were identified as primarily being a risk of emotional and potentially psychological harm.

5. It appears that all parties including the children, and in particular most significantly B, are suffering from emotional fatigue and a degree of distress as a result of the acrimonious nature of the parent’s relationship and the ongoing litigation.

6. In that context there is merit in the submissions of counsel for the father and the ICL that ongoing supervision of the children’s time with the father is unnecessary. I note that Dr G was of a similar view where at paragraph 106 of her updated report she stated:

   It is not my view this is in the children’s best interests. Supervision is not likely to be a long term “solution” and I think it would confuse the children who enjoy a naturalistic relationship with the paternal family.

7. On that basis the Court does not propose to order that the children’s time with the father, or the paternal grandmother, be supervised.

8. However, the Court notes Dr G’s view that the parenting arrangements “need to ensure that the children are protected from having to manage the father’s emotionality”.[14]  The Court also notes that, despite having that view, Dr G recommended that it was appropriate for the children to spend overnight time with the father on Friday, Saturday and Sunday evenings on a fortnightly basis.

   [14] Ibid at paragraph 104.

9. In these interim proceedings, however, it is necessary to take a cautious approach and the Court is not satisfied that it would be possible to protect the children from having to manage the father’s emotionality for such a sustained period of time. The Court is also of the view that it is preferable for an additional adult, who is familiar to both the father and the children, to be present in the household at the time of the children’s visits with the father. While I recognise the mother’s concerns, the obvious person to fulfil that role is the paternal grandmother.

10. Finally, whilst in these interim proceedings the Court is unable to make a finding of fact in respect to the father’s drug use, the Court is concerned that the father has, in the past, been in contact with a person or persons who have provided him with illicit substances. Accordingly, the orders the Court will make will require there to be some restriction on who can be in attendance when the children are to spend time with their father and paternal grandmother. 

Presumption of equal shares parental responsibility

1. In his judgment of 20 November 2014, Aldridge J addressed the issue of parental responsibility in the following terms:

   34. Neither party sought orders for parental responsibility.  That is a matter that remains an issue for the final determination.  This, as an interim hearing, is not the appropriate vehicle in the circumstances to determine that issue or to apply the presumption that it is in the children’s best interests for there to be equal shared parental responsibility.

2. That situation remains unchanged. Accordingly, it is unnecessary to consider that matters set out in section 65DAA which relate to the potential for the children to spend equal time or substantial and significant time with each parent.

Conclusion

1. For all the reasons set out above I make the orders as set out at the commencement of this judgment.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 24 December 2015.

Associate: 

Date:  24 December 2015.