CALLUM & LECHIARA

[2018] FamCA 351

FAMILY COURT OF AUSTRALIA

CALLUM & LECHIARA [2018] FamCA 351

FAMILY LAW – CHILDREN – Interim Proceedings – Where there is one child aged five years – Where the father seeks unsupervised time with the child and the mother opposes this application – Where it is agreed that the parents have equal shared responsibility for the child – Where there are allegations of family violence – Where there is evidence that the mother’s mental health has deteriorated as a result of the father spending unsupervised time with the child in the past – Where it is in the child’s best interests to have her primary parent functioning at the highest level which she can as a parent – Where interim orders are made for the father to spend supervised time with the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Where orders were made in the Federal Circuit Court of Australia after the matter was transferred to the Family Court of Australia – Where the orders were made without jurisdiction – Where the orders have no effect.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 65AA, 65DAA

Goode and Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Callum

RESPONDENT: Mr Lechiara

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

FILE NUMBER: SYC 3130 of 2017

DATE DELIVERED: 21 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 6 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fowler

SOLICITOR FOR THE APPLICANT: Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Macarounas

SOLICITOR FOR THE RESPONDENT: Rowlandson & Co Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Newland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

The following orders are made pending further order in relation to the child, B, born on … 2013 (“the child”).

1. All previous parenting orders be discharged.

Parental Responsibility

1. By consent the parties have equal shared parental responsibility for the child.

Live With

1. By consent the child shall live with the mother.

Spend Time

1. The child shall spend time with the father as follows:

   (a)each alternate Saturday commencing on 26 May 2018 from 10.00 am to 4.00 pm or such other time up to six hours as can be accommodated by the supervisor;

   (b)all time spent shall be supervised by either the C Group (at the father’s expense), a professional supervision service (at the father’s expense) or the paternal grandmother, Ms Lechiara Snr;

   (c)the father shall notify the mother’s solicitors not later than 48 hours prior to the commencement of the occasion of time spent about whom the supervisor shall be;

   (d)The mother shall deliver the child to the supervisor at the C Group, to the supervisor at a professional supervision service or to Ms Lechiara Snr at the playground at McDonalds Suburb D, as appropriate, and collect her from the supervisor at the same place and the father shall not be present at changeover.

2. The father is restrained by injunction from:

   (a)contacting, approaching, or stalking the mother, or attending within 100 metres of the mother’s place of residence, employment, or education except in the case of indirect contact through the supervision service and the mother’s lawyers;

   (b)contacting or attempting to contact or approach the child, except as is permitted by these orders;

   (c)entering or remaining at any place of residence, employment, or education of the mother; and

   (d)attending or remaining at or within 100 metres of the child’s school, E Town Public School, E Town.

3. It is noted that the injunction in order 5 is an injunction for the personal protection of the mother and child, and as such the police have a power of arrest pursuant to s 68C of the Family Law Act 1975 (Cth).

4. Each party is restrained from:

   (a)denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so;

   (b)physically disciplining or chastising the child or from allowing any third party to do so; and

   (c)discussing the details of these proceedings, or any matter arising from these proceedings, with the child, save for the following exceptions:

   (i)the mother may advise the child of her need to attend any Court related appointments; and

   (ii)the mother may advise the child of the details of the next time she is to spend time with the father in accordance with these orders.

5. The father is restrained from asking the child any question or otherwise causing, or attempting to cause, the child to reveal the location of the mother’s residential or work address or from requesting or allowing any other person to do so.

6. By consent and without admission, the father is restrained from causing his son, F, to be present during any time the child spends with the father, or allowing the child to communicate with F by telephone or any other means.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callum & Lechiara has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3130 of 2017

Ms Callum

Applicant

And

Mr Lechiara

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings.

2. On 4 September 2017 Judge Monahan of the Federal Circuit Court of Australia heard interim parenting proceedings in relation to the child, B who was born in 2013 (“the child”) and who is therefore five years of age.

3. At the end of the hearing his Honour reserved judgment.  He delivered a written judgment on 29 September 2017 and also made parenting orders that day.  The difficulty is that on 4 September 2017 his Honour had ordered that “[a]ll extant applications be transferred to” this Court.  That, of course, included the competing applications for interim parenting orders in relation to the child by each of her parents about which his Honour had not yet made orders.  So when his Honour came to exercise the relevant jurisdiction on 29 September 2017 the Federal Circuit Court was no longer seized of the matter because his Honour had transferred it to this Court.

4. In these circumstances, in my view, the orders made by his Honour on 29 September 2017 were made without jurisdiction and therefore are of no effect.

5. The child’s parents are Mr Lechiara, 44 years, and Ms Callum, 31 years of age.  For convenience I shall refer to them as “the father” and “the mother”.

6. Because the orders of the Federal Circuit Court are of no effect I do not propose to refer to them in much detail.  Suffice to say that pursuant to the orders the child was to live with her mother and spend time with her father initially for four hours and progressing to six hours each Sunday, the first four occasions which were to be supervised and then time spent was to proceed to unsupervised time.

7. The child and her father spent supervised time together after which time there were two occasions of unsupervised time.  Since then the child has not spent any time with her father because the mother has not been prepared to make her available for this in circumstances which I shall refer to below.

Applications

1. There is no issue that the parties have equal shared parental responsibility for the child.

2. The mother seeks orders pending further order to the following effect:

   ·all previous parenting orders be discharged;

   ·the child shall live with the mother;

   ·the child shall spend time with the father every fourth week for up to six hours between 10.00 am and 4.00 pm on Saturday or such other time as agreed in consultation with the supervision service;

   ·the time the child spends with the father shall be supervised by a professional child contact supervision service at the father’s expense;

   ·the father be restrained from contacting, approaching or stalking the mother and the other restraints as specified;

   ·that mutual non-denigration restraints and other restraints be imposed; and

   ·the father be restrained from causing his son, F, to be present during any time spent between the child and her father or permitting the child to communicate with F by any means.

3. On the other hand, the father seeks orders pending further order to the following effect:

   ·all previous parenting orders be discharged;

   ·the child live with the mother;

   ·the child spend time with the father as follows:

   -commencing 10 February 2018 each Saturday from 10.00 am to 4.00 pm;

   -commencing 7 April 2018 from 10.00 am Saturday to 4.00 pm the following Sunday and in each alternate week thereafter;

   -from 14 April 2018 from 10.00am to 4.00 pm Saturday and in each alternate week thereafter;

   -commencing 8 September 2018 from 5.00 pm Friday to 5.00 pm Sunday and each alternate week thereafter;

   -various orders on special days as specified.

   ·the child and father to communicate by Facetime at specified times each Tuesday, Thursday and Sunday between 6.00 pm and 6.30 pm;

   ·non-denigration orders;

   ·various orders in relation to medical treatment and health of the child, daycare/preschool;

   ·each party be restrained from relocating the child’s residence outside New South Wales without prior written consent of both parties;

   ·neither party physically discipline the child; and

   ·each parent enrol in the “Keeping Kids in Mind” program.

4. The Independent Children’s Lawyer (“ICL”) supported orders for the child to spend unsupervised time with the father each Saturday from 10.00 am to 4.00 pm as well as weekly telephone communication.

5. For completeness a copy of the minute of orders sought by each parent and by the ICL is annexed at Annexures “A”, “B” and “C” to these reasons.

Background

1. In 1973 the father was born.

2. In 1986 the mother was born.

3. The father has two children by his previous marriage to Ms G, namely F born in 2000 and H born in 2003.

4. The parties commenced their relationship in 2008.  They commenced cohabitation in December 2008, living initially with the father’s parents in Suburb J.  After a couple of months the parties moved into a rented apartment at Suburb K.  The father’s sons lived with the parties initially for half the time then from December 2010 for five nights per fortnight across a weekend.

5. The parties married in 2011.

6. As indicated above, B was born in 2013.

7. On 19 June 2016 the mother communicated with a Lifeline counsellor.

8. Between 21 and 23 June 2016 the mother was hospitalised and underwent surgery in relation to gynaecological issues.  The mother alleged this was a time of distress and argument between the parties, particularly about her not wanting to have sex.

9. On 1 July 2016 the mother left home taking the child to stay with her parents at L Town.

10. On 7 July 2016 the mother sent a text message to the father informing him that she could not be his wife anymore.

11. On 18 July 2016 the mother commenced to receive support from a social worker with Staying Home Leaving Violence.

12. On 24 July 2016 the mother, accompanied by her father, took the child to M Town and the child spent some time with the father.

13. On 1 August 2016 the mother moved to live in Z Region. After a couple of weeks staying initially in a women’s refuge she and the child moved into rented accommodation.  They continue to reside in Z Region.

14. On 24 May 2017 the mother commenced these proceedings in the Federal Circuit Court and on 12 July 2017 the father filed a Response.

15. On 12 July 2017 Judge Monahan made interim consent orders including that the child live with the mother and spend time with the father for two hours once a month supervised at the C Group.  The orders also required the father to ensure that his son, F, not be present when the child was spending time with him.

16. On 13 July 2017 the parents saw Family Consultant Ms N (separately) and Ms N prepared a memorandum about issues in dispute and possible risks for the child.

17. On 5 August 2017, 3 September 2017, 17 September 2017 and 1 October 2017 the child spent time with the father supervised by C Group.

18. On 29 September 2017 Judge Monaghan made (invalid) orders for the child to spend time with the father each Sunday.

19. On 15 and 29 October 2017 the child spent time with the father supervised by her paternal grandmother at the Z Region.

20. On 5 and 12 November 2017 the child spent unsupervised time with the father for six hours on each occasion.

21. On the next occasion the father was to spend time with the child, namely, 19 November 2017, the father was unavailable.

22. On 21 November 2017 the mother’s solicitors wrote to the father’s solicitors informing them and the father that she did not propose to facilitate further unsupervised time.

23. On 10 December 2017, by agreement, the father spent time with the child for six hours supervised by the paternal grandmother.  This was the last occasion the child and father spent time together.

The issue

1. The issue in this case is what arrangements for spending time between the child and the father on an interim basis would be most consistent with the child’s best interests.

The Mother’s case

1. The mother’s case falls into two parts.  One part is that the mother asserts that for the child to spend unsupervised time with the father would expose the child to an unacceptable risk.  The mother asserted that she is the victim of longstanding and regular family violence perpetrated on her by the father.  The mother’s complaints against the father include the following:

   ·The father pushed her roughly in June 2015.  The mother said that the circumstances of this were that the child had been crying.  She said that the father shouted at the child and said that if she did not stop crying he was going to give her a good smack.  The mother said that she offered to give the child a warm shower to calm her down.  She said as she walked past the father with the child in her arms the father pushed her roughly, and she stumbled down a step.  The father denied this.

   ·The father did nothing to assist the mother when she became the subject of grossly disrespectful and insulting language directed at her by the father’s elder son, F.  The mother said F called her a “fucking dumb cunt… stupid bitch, stupid cunt” and said to her “See slut, blood is thicker than water”.   The father denied this.

   ·The mother has a very serious concern about a comment she said F made when the child was approximately two months of age, the comment being “imagine how tight she is”.  The mother said this comment was made in the presence of the mother and F’s friend.  The mother asserts this was a reference to the child’s vagina.  The mother regards the father as having minimised the seriousness of this when he replied that it was just a stupid teenage comment.  The mother also has other concerns that F has behaved inappropriately towards the child.

   ·The mother makes very serious allegations of sexual assault upon her by the father.  Amongst her complaints she alleges several counts of rape being in late 2010, 2014 and again on 19 June 2016.  The father denies all such allegations.  The mother said on numerous occasions she informed the father that sex was painful because of her endometriosis and she said he would not take account of this and continued with sexual intercourse notwithstanding her pain.  The mother said that on 23 June 2016 the father put his penis in her face and asked her whether she was going to help him or did he need to go somewhere else.  The father denied this.  The mother said that from 2010 the father made her submit to painful anal sex.

   ·The mother said that friends and family members told her she was being emotionally abused over many years by the father.  She said that on 23 June 2016 during an argument the father called her “worthless” and a “mentally ill alcoholic”, then refused to speak to her.  The mother makes numerous complaints about the father giving her the “silent” treatment and saying many things over the years in denigration of her, including that she is “useless” and “hopeless”.  The father denied this.

   ·The mother said that the father engaged in coercive and controlling behaviour towards her.  For example, the mother said that on 20 June 2016 she went to soccer but it rained.  She said that when she was in the car the father rang her numerous times asking where she was and said she wasn’t going to soccer, what did she spend money on, why wasn’t she playing yet?  The mother said that the first incident of controlling behaviour was on 1 January 2009 when the father asked her “who are you texting? … show me your phone … what are you hiding … give me your phone now”.  The mother said the father said “you’ve been cheating on me”.  The mother said that the father threatened to drive her home to Canberra (presumably to her parents’ home) but then told her to get out.  The mother said that she was so upset that she broke her phone sim card which she said seemed to calm the father down.  The mother also said that the father monitored her whereabouts through various devices on her phone.  The father denied all this.

   ·The mother said that from 2009 the father required her to provide sex to him as an incentive to see her friends or family.  The mother said that on one occasion she wanted to go out with two of her best friends and after some debate she said that the father said she needed to make him feel better, that he needed “to feel loved”.  She said she didn’t want to (engage in sex) and he said “Who do you think you are. You’re nothing” then walked away from her and would not speak to her.  The mother said that in December 2010 she was wanting to attend her work Christmas party.  She said that the father did not want her to go and said when she drinks alcohol she turns into a flirt.  She said then he demanded sex in exchange for his permission for her to attend the Christmas party.  The father denied this.

   ·The mother also said that prior to the parties’ wedding the matron of honour organised a hens’ party being a cruise on Sydney Harbour with topless waiters.  The mother said that this made the father furious to the point where she had to cancel the party.  She said that the father then demanded that she choose between her best friend the matron of honour and him.  The father agreed that he had expressed his displeasure about the plan for the party to include topless waiters.  He said that when he did this the mother said she would cancel.

   ·The mother also made numerous other complaints but it is unnecessary for the purposes of this interim hearing to set these out.

2. The other part of the mother’s case is that she is suffering from what her psychologist, Ms O, has diagnosed as Post Traumatic Stress Disorder (“PTSD”).  The mother said that she has been traumatised by the behaviours and mistreatment of her by the father during the parties’ marriage, that she is fearful of him and that the Court has to take account of the likely impact on the child of the likely increased anxiety on the mother’s part if she was required to present her for unsupervised time with the father.  I shall refer to this again below.  

The Father’s case

1. The father denied any mistreatment of the mother by him and denied that his son, F has acted towards the mother in the manner as asserted by her. 

1. The father said that he understands that the mother has suffered from multiple mental health conditions during most of her life.  He said that he understands that she suffers from severe depression and anxiety and has recently been diagnosed with attention deficit hyperactivity disorder (“ADHD”).  The father also alleged that the mother has been hospitalised following self-harm.  He said that he has heard her threaten to kill herself on numerous occasions.  He also said that she received treatment for a muscular disorder.  The father said that in the six months leading up to separation the mother’s depression and anxiety worsened.

2. The father said that the mother has regularly misused alcohol as exemplified by the fact that she lost her licence for 12 months as a consequence of a high range drinking charge.

3. The father said that on 26 January 2016 the mother became well affected by alcohol and began to swear at F.  The father said that F did not swear at or denigrate the mother.

4. The father also said that the mother has disciplined the child by smacking her repeatedly on her buttocks, that she has shouted at the child and slammed doors in the child’s presence.

The Applicable Law

1. This is a complex case.  Each parent makes very serious allegations about the behaviour of the other.  The case has been included in the Magellan list of cases because of its complexity.  The best interests of the child will be served by full opportunity for all parties to provide detailed evidence, and to test the evidence at a substantive hearing.  But it is impossible to do this at interim hearing.

2. The difficulties associated with making orders without the benefit of the parties being able to test contested evidence was referred to by the Full Court in Marvel v Marvel (2010) 43 Fam LR 348 (“Marvel”) as follows at 375:

   [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 ...

3. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

4. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

5. The objects in this context are to ensure that the best interests of the children are met by:

   ·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

6. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   ·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   ·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·Parents should agree about the future parenting of their children; and

   ·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

7. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

8. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

9. As indicated above, the parties agree that an order be made that they have equal shared parental responsibility for the child.

10. Subsection 65DAA(1) of the Act provides that if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, subsection 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

11. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Discussion

1. As I have said, because the parents have agreed that I make an order that they have equal shared parental responsibility for the child I must first consider making an order that the child spent equal time with each parent.  But neither parent is seeking such an order.  So I am to consider whether the child spending substantial and significant time with each parent would be in her best interests and would be reasonably practicable. 

2. The meaning of “substantial and significant time” is set out in subsection 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:

   ·The time the child spends with the parent includes both:

   -days that fall on weekends and holidays;

   -days that do not fall on weekends or holidays; and

   ·The time the child spends with the parent allows the parent to be involved in:

   -the child’s daily routine; and

   -occasions and events that are of particular significance to the child; and

   ·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Section 60CC Considerations

1. How the Court is to go about determining what is in the child’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in subsection 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.

3. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in subsection 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 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. The child is only five years of age so, in my view, this consideration is irrelevant.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. The paternal grandmother has had close involvement with the parents, the child and the father’s sons.  She said that she has observed a close and loving relationship between the child and both her parents.

2. The child has always lived with her mother.  In my view, it is implicit in the parents’ agreement that the child continue to live with the mother that the mother is the child’s primary parent.  There is no suggestion that the child does not have a close relationship with the mother.

3. On the other hand, I accept that the child also has a close and loving relationship with the father.  In my view, this is clear from the accounts of the supervisor from the C Group who has described the child as having been happy during their visits and told the father that she loved him.

Subsection 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. Since separation there was a period of approximately 12 months when the father and the child had no contact.  The mother removed herself and the child from the former matrimonial home at separation and the mother appears to have made all the significant decisions about the child.  This is no reflection on the father, whom I am satisfied has at all times been most desirous of being able to continue to have a relationship with the child.  He has involved himself in court proceedings to obtain time with his daughter.

Subsection 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. It would appear that the father has not provided appropriate financial support for the child.  The father asserts that the mother has not allowed him to be involved in maintaining the child.  What the actual position is in relation to this matter is unclear to me at this time.

Subsection 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 (including any grandparent or other relative of the child), with whom the child has been living

1. I shall discuss the matter below, when considering the capacity of each of the parents to provide for the child’s needs.

Subsection 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 

1. The mother has moved the child’s residence to the [Z Region] whereas the father continues to live in the Sydney area.  I accept that, as submitted by the ICL, the expense and some difficulty involved in travel between residences will have some impact on the time that the child can spend with each parent.  However, in my view, the travelling time between locations is not so great as would interfere seriously with the child being able to spent time with the father regularly.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The paternal grandmother said that she considers both the mother and the father to be “excellent parents and they were always very doting and loving of the child”.

The mother

1. In my view, there must be some concerns about the mother’s state of mental health.  As indicated above, the father said that he understands that the mother suffers from severe depression, severe anxiety and that recently she was diagnosed as having ADHD.  He said that she has told him on numerous occasions that she might commit suicide.  He said that she has told him that she would have taken her life had it not been for the child.  He said that during the six months leading up to separation the mother’s depression and anxiety progressively became worse.  He said he has observed the mother to use alcohol to deal with her problems and that she has driven a motor vehicle home while under the influence of alcohol.

2. There is objective material which causes some concern.  The mother was referred by her general medical practitioner to Dr P, clinical psychologist, her first session with Dr P being 28 August 2012.  On that occasion she reported that she had anger issues and feelings of mixed anxiety and depression for which she was taking medication.  The mother reported that she had previously used alcohol as a means of coping with her problems but no longer did this.

3. In November 2014, Dr P recorded in a letter to the mother’s doctor that the mother had consulted him again because she “wasn’t coping” particularly with her blended family situation and following surgery.  He said that she spoke of “marked anxiety and sleep deprivation”.  Dr P recorded that the mother spoke about thoughts of self-harm but denied any intention to act on them because she now had her daughter, the child.  He said this was a repetition of what had happened in her adolescent years when she was markedly distressed and spoke of two previous attempts at self-harm, one of which she reported as serious.  Dr P referred the mother to a consultant psychiatrist.

4. Ms O is the mother’s current psychologist.  The mother has had in excess of 40 hours of counselling with Ms O, this treatment having been provided under the New South Wales Justice Victims’ Services Approved Counselling Scheme.  The mother commenced with Ms O on 15 September 2016.  Ms O described the mother as having initially presented “with significant trauma symptoms including high level agitation, hypervigilance, heightened startle response, difficulties with concentration and memory, significant sleep disturbance, flashbacks and unwanted memories of past traumatic events”.  Ms O said that she also had low confidence, experiences of shame and difficulties re-establishing a sense of self and making new social connections.

5. Ms O has reported that in her opinion the mother has PTSD.  Ms O said that she has excluded a diagnosis of a depressive disorder.  She also excluded a diagnosis of a generalised anxiety disorder, the mother’s high level anxiety being more directly associated with trauma triggers and more consistent with a diagnosis of PTSD.  Ms O said that over the course of the mother’s psychological treatment she reported an ability to rediscover her identity and re-establish a sense of confidence and a clear direction for her future.  She said that the mother reported an ability to manage her symptoms, that the mother was able to gradually address experiences of trauma from the past in order to process such events and establish further goals for her future.

6. Following separation the mother has been assisted by the Brighter Futures Program under the auspices of the Department of Family and Community Services.  Ms Q, a case worker who has been assisting the mother from this program, described in December 2017 that the child was being well cared for by the mother.

The father

1. The father has had considerable involvement in the care of the child since her birth.  He said that when the child was a baby he assisted the mother by bathing the child, changing her nappy and settling her.  He said that he looked after the child when the mother was sick or hospitalised or involved in playing sports such as soccer or attending some other recreational activity.  The father also said that he had delivered the child to, and collected her from, her day-care centre and that he has taken her to various extracurricular activities from time to time, such as dancing, gym, soccer and swimming.

2. I shall refer to the parties’ parenting capacities again below.

Subsection 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. This consideration is not relevant.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. This consideration is not relevant.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother appears to have provided a good level of care for the child.  But if there is any truth in the father’s assertion that the mother has used alcohol to excess and, particularly, that she has driven a motor vehicle while affected by alcohol, this would reflect poorly on her attitude to the responsibilities of parenthood.  It appears to be the case that the mother recorded a police breath analysis result well above the prescribed limit.  This occurred more than five years prior to the child’s birth.  But it is consistent with the father’s complaint that the mother has drunk alcohol to excess.  This is a matter of some concern. 

2. If there is any substance in the mother’s assertion that the father has been violent to her and the child this would reflect poorly on his attitude to the responsibilities of parenthood.

3. In my view, what is clear is that following separation there has been ongoing conflict and hostility between the parents and they have been unable to communicate and prioritise the child’s welfare.  This reflects poorly on them as parents.

Subsection 60CC(3)(j) –  any family violence involving the child or a member of the child's family

1. As indicated above, each parent makes allegations of violent behaviour by the other.  I have referred above to the major complaints about the father’s behaviour as asserted by the mother.  As indicated above, the father denies the mother’s assertions.  He said that he has never committed an act of domestic violence against anyone let alone the mother or the child.  He also said that he has never been charged or convicted of any criminal offence. 

2. In fact the father’s case is that these assertions are a recent invention by the mother.  Counsel for the father pointed to the notes of various behavioural scientists attended by the mother over some years up to separation, namely, Dr R of S Psychology, Dr P, psychologist and the mother’s psychiatrist, Dr T.  It was submitted that nowhere in the notes by any of those professionals is it indicated that the mother had complained about alleged violence or misconduct on the part of the father.  I accept this.

3. The mother also alleged that the father disciplined the child by smacking her so hard on her bottom that he caused red marks. The father denied this.  Yet the Child Dispute Conference Memorandum reports the father as having said that on one occasion he did smack the child on her bare bottom but denied that he used excessive force.

4. On the other hand, the father complains that the mother has behaved violently from time to time including punching a hole in the wall and smacking the child.  The mother conceded that she was distressed to the point on 26 January 2016 that she punched a hole in the wall.  The mother also conceded that she has smacked the child.

Subsection 60CC(3)(k) –  if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

1. There are no family violence orders.

Subsection 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. At this interim stage, I find it impossible to form a view about what order might be least likely to lead to one or other parent instituting further proceedings.

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

1. The mother has made serious allegations about certain behaviour by F, the father’s elder son.  I have referred above to her allegations that he has used grossly disrespectful and insulting language towards her, this being denied by the father.  I have also referred to the mother’s concern about the comment which it appears F made about the child’s vagina which was in March 2013.

2. The mother also said that in April 2016 she saw that when F and the child were in the car F had his hand over the child’s vagina and was rubbing her.  She said she shouted at him and she pushed his hand away from the child.  The mother said that when she informed the father about this the father replied that he was sure that F wasn’t doing that and that the mother just had an issue with F.

3. The mother said that in early May 2016 when the family were visiting the father’s parents she saw F and the child on the couch and that F put the child on his lap.  She said she saw F “wiggling and moving under her”.  The mother said she said “What are you doing?” and that F said “She’s on my balls”.

4. In relation to the incident on 26 January 2016 discussed above, the father said that the mother was well affected by alcohol and was the person who was swearing profusely.  He denied that F used offensive language towards the mother.

5. In my view, the mother’s allegations about these matters are troubling.  The police notes for 27 and 28 August 2014 record that F had a video image on his phone of a 14 year old female (who was known to him) masturbating and that in return he had sent her several pictures of his penis.  He also had pornographic pictures on his phone.  The police notes record that F’s school principal had seized F’s phone.  The mother of the girl reported the matter to the police. 

6. I note also that the paternal grandmother said that F has had behavioural problems although she also went on to say that she has never seen him to act inappropriately, or make inappropriate comments, in relation to the child.

7. In my view, until such time as these serious allegations against F can be tested it would be in the child’s interests not to have any contact with F.

Primary Considerations

1. In relation to the first primary consideration, as indicated above, it appears that the child has a close and loving relationship with her father.  The reports from the C Group about the very positive interaction between the child and her father during time spent by them with one another point to the closeness of their relationship.  The mother concedes that it would be in the child’s interests to have an ongoing relationship with the father.  In all the circumstances, in my view, it would be to the child’s benefit to be able to have opportunity to have a meaningful relationship with her father.

2. The Court is also to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  This protective consideration is to be given greater weight than the benefit to the child of having a meaningful relationship with the father.

3. As indicated above, the father is most desirous of being able to spend unsupervised time with the child as soon as possible.  In my view, there are real difficulties in relation to this.  On the available evidence, untested as it is, the mother appears to have a serious mental health condition, namely, PTSD.  There was strong objection by counsel for the father to admission into the evidence of parts of the report by the mother’s psychologist, Ms O, particularly matters of prognosis.  As I indicated at the time of the objection, this is the only professional opinion which the Court has at this point in time.  Given the complexity of the case, in my view, it is appropriate to read Ms O’s report including prognosis.  In time a report on these relevant matters, including the state of mental health of the parties, will be completed by the single expert, Dr U.

4. Ms O indicated that amongst the symptoms manifested in the mother’s condition is anxiety.  As indicated above, Ms O said that the mother had been able to manage her symptoms and gradually address experiences of trauma.  Ms O pointed to difficulty, what she described as the mother experiencing “significant aggravation of her post trauma symptoms when having to complete affidavits for court, having to recount her experiences in detail, and having to attend family law court”.  She said that the mother however was able to manage those matters as they arose and re-establish herself again after such events.  What is troubling is that Ms O goes on to say:

   This however has not been the case when the child began to have unsupervised visits with her father.  [The mother] reported on her own difficulties in “re-living the past” and her worries about what her daughter would be exposed to. 

5. Ms O said that the mother was:

   …particularly re-traumatised when the child would be taken back to their former home and in session, [the mother] returned to her initial presentation of being highly agitated, easily startled, tearful, and withdrawn. 

6. Ms O goes on to say:

   [The mother] was previously showing a positive capacity for managing her post trauma symptoms and a positive prognosis for the future; however with her daughter’s engagement in unsupervised visits with her father, [the mother’s] prognosis is less likely to show resolution of her symptomology.  Equally, given the regularity of these visits as weekly, [the mother] was unable to have enough time to recover from her triggered memories from the past and her hyperarousal unable to settle as she would then have to prepare for the next visit.  [The mother] further reported on changes in her daughter’s behaviours when she was having these unsupervised visits at their former home and this further exacerbated [the mother’s] trauma symptoms and ability to effectively manage these for sustained periods of time.

7. Ms O went on to say that since the child’s involvement in unsupervised visits with the father and the mother’s re-exposure to him, the mother’s progress has regressed back to her original presentation.  She said the mother therefore requires a continuation of regular psychological treatment to manage those symptoms.  Ms O said that the mother would require a re-establishment of safety measures to be able to process past events and this would require no contact with the father.  She said that the mother’s symptoms were more manageable when the child’s visits with the father were supervised and ultimately she recommended the child’s time with the father be supervised.

8. As indicated above, each parent makes serious allegations against the other that they have been violent.  Where the truth of these allegations might lie is yet to be established upon testing the available evidence.  But what is clear is that there has been a serious level of distress on the part of each of the parents and the child, there has been shouting and verbal abuse, the mother became upset to the point where she lost control and punched a hole through the wall, each parent concedes they have engaged in some smacking of the child and there are very serious allegations which at substantive hearing might become the subject of findings of family violence.

Conclusion

1. In my view, it will be to the child’s benefit to be able to continue to develop a relationship with her father.  It was submitted on behalf of the father that the Court would be concerned not to “stultify” the close relationship between the child and the father.  I accept this.  But in the complex circumstances of this case, I am not persuaded that at this point in time it would be in the best interests of the child to be spending substantial and significant time with the father.  In my view, it must be in the child’s best interests to have her mother, as primary parent, to be functioning at the highest level which she can as a parent.  The Family Consultant in describing risk factors for the child said that the mother presented in a way that was consistent with her account of family violence in that she found it difficult to discuss, was distressed at times and appeared anxious.  The Family Consultant went on to say that if the mother’s account is accurate, she may be extremely emotionally vulnerable to the father’s involvement in the child’s life and this may negatively affect her capacity to parent the child.

2. The mother said that she felt shock and devastation upon hearing that the Federal Circuit Court had made orders for the child to spend unsupervised time with the father.  She said that she could not sleep and sat feeling numb for hours on end.

3. I accept at this stage of the proceedings that the mother has PTSD.  As indicated above, Ms O has said that following the unsupervised visits between the child and the father and re-exposure of the mother to the father, the mother’s progress went back to her original presentation.  I infer that this was a presentation which involved anxiety and other symptoms involved in PTSD which Ms O has been endeavouring to help the mother improve.

4. As the Full Court observed in Marvel (above), decisions in interim proceedings can be difficult and often a conservative approach is adopted.  In all the complex circumstances of this case, at this stage, in my view, the best interests of the child would be served by an arrangement which will enable her to spend regular time with her father but in circumstances which will reduce the risk of bringing about the regression in the mother’s PTSD condition referred to by Ms O.  Accordingly, in my view, the appropriate arrangement would be for the child to spend time with her father each alternate weekend supervised in an appropriate way.  In my view, this would be by a supervisor provided by a professional supervision service or the child’s paternal grandmother.  This would provide opportunity for the child to continue her relationship with her father, but in circumstances which the mother is likely to perceive as being safe for the child.

Communication

1. As indicated above, the father also seeks orders to enable him and the child to communicate by FaceTime several times each week.  But the mother referred to difficulties with Skype and telephone calls between the child and her father.  The mother alleged that the father used this opportunity to manipulate the child.  Whether this is in fact the case is far from clear at this point.  But I accept for present purposes that there appear to have been difficulties.  Taking a cautious approach at this time, I am not persuaded to an immediate requirement for interim orders about FaceTime communication.  This might well be in the child’s interests in the longer term.  I am conscious of Ms O saying in effect that there needs to be sufficient time between contact occasions for the anxiety this produces in the mother to settle.

Restraints

1. The mother is seeking various restraints against the father as set out in her minute of orders sought.

2. The mother’s psychologist said that the mother’s treatment would require a re-establishment of safety measures to enable the mother to process past events.  She recommended that this would require there to be no contact between the mother and the father.  As indicated above, Ms O also referred to the mother’s progress as having regressed since her “re-exposure to her ex-husband”.

3. In weighing the possible prejudices to each of the parties concerning this issue, in my view, the balance falls in favour of putting some restraints in place pending further order to provide appropriate opportunity for the mother’s anxiety to settle.  There is no evidence that the restraints sought would impact unreasonably on the father, at least on an interim basis.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 May 2018.

Associate: 

Date:  21 May 2018

“A”

MOTHER’S INTERIM ORDERS SOUGHT

That pending further order:

1. All previous parenting orders be discharged.

2. B born … 2013 (“the child”) shall live with the mother.

3. The child shall spend time with the father every fourth week for up to six (6) hours, to take place between 10am and 4pm on a Saturday, or at such other time or on such other day as agreed in consultation with the supervision service.

4. The time the child spends with the father shall be supervised by a professional child contact supervision service (“the supervision service”), at the father’s expense.

5. For the purpose of implementing Orders 3 and 4:

   5.1.the father nominate a supervision service either in the Sydney Metropolitan Area or the [Z Region] of New South Wales;

   5.2.each party must use his/her best endeavours to make all arrangements necessary for the child to commence spending time with her father pursuant [sic] as soon as possible;

   5.3.the mother shall facilitate changeover to the supervisor and the father shall not be present at changeover.

6. Pursuant to Section 68B the father is restrained by injunction from:

   6.1.contacting, approaching, or stalking the mother, or attending within 100 meters of the mother’s place of residence, employment, or education except in the case of indirect contact through the supervision service and the mother’s lawyers;

   6.2.contacting or attempting to contact or approach the child, except as is permitted by Order 3 above;

   6.3.entering or remaining at any place of residence, employment, or education of the mother; and

   6.4.attending or remaining at or within 100 metres of the child’s school, E Town Public School, E Town.

7. It is noted that the Injunction in Order 6 is an injunction for the personal protection of the mother and child, and as such the police have a power of arrest pursuant s.68C of the Act.

8. Each party is restrained form [sic]:

   8.1.Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so;

   8.2.Physically disciplining or chastising the child or from allowing any third party to do so; and

   8.3.Discussing the details of these proceedings, or any matter arising from these proceedings, with the child, save the following exceptions:

   8.3.1.The mother may advise the child of her need to attend any Court related appointments; and

   8.3.2.The mother may advise the child of the details of the next time she is to spend time with the father in accordance with these orders.

9. The father is restrained from asking the child any question or otherwise causing, or attempting to cause, the child to reveal the location of the mother’s residential or work address or from requesting or allowing any other person to do so.

10. The father is restrained from causing his son F to be present during any time the child spends with the father, or allowing the child to communicate with F by telephone or any other means.

“B”

ORDERS SOUGHT BY THE RESPONDENT FATHER

1. That all previous parenting Orders be discharged.

2. That the parties shall have equal shared parental responsibility of the child B born …, 2013 (“the child”).

3. That the child live with the applicant.

4. That the child shall spend time with the respondent:-

   4.1        Commencing from 10 February 2018, each Saturday from 10am to 4pm;

   4.2Commencing from 7 April 2018, from 10am Saturday to 4pm the following Sunday and in each alternate week thereafter and from 14 April 2017 from 10am to 4pm on Saturday and in each alternate week thereafter;

   4.3Commencing from 8 September 2018 from 5:00pm Friday until 5:00pm Sunday and each alternate week tthereafter [sic];

   4.4notwithstanding any other order herein, on the child’s birthday as agreed between the parties and failing agreement from 8:00am to 1:00pm;

   4.5from midday Christmas Eve until midday Christmas Day in every odd numbered year commencing 2017 and from midday Christmas Day until midday Boxing Day in every even numbered year commencing 2018;

   4.6notwithstanding any other order herein, from 9.00am to 6.00pm on Father’s Day;

   4.7notwithstanding any other order herein from 1.00pm until 6.00pm on the respondent’s birthday;

   4.8at such other times as may be agreed between the parties in writing.

5. For the purposes of implementing Order 4, the respondent shall collect and return the child to and from the playground situate at McDonalds Suburb D situated at …Suburb D … at the commencement and conclusion of such times.

6. The child’s time with the respondent shall be suspended if Mother ’s [sic] Day falls on a weekend when the child would be spending time with the respondent.

7. That the applicant do all acts and things to ensure that the respondent speak to the child by Facetime each Tuesday, Thursday and Sunday between 6.00pm to 6.30pm.

8. That for the purposes of facilitating order 7, the applicant shall provide at the first return date of this matter to the respondent her mobile phone number (“the applicant’s mobile phone number”) and the respondent shall provide to the applicant at the first return date of this matter his mobile phone number (“the respondent’s mobile phone number”) and that each Tuesday, Thursday and Sunday at 6.00pm the applicant shall contact the respondent’s mobile phone number from the applicant’s mobile phone number by way of Facetime mode and thereafter the applicant shall leave the room.

9. Neither party shall denigrate the other party nor permit any third person to do so in the presence or hearing of the child.

10. Each party shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.

11. Each party shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the child including sufficient details to enable both parties to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided and both parties shall be at liberty to visit the child if hospitalised.

12. Each party shall ensure that the other is promptly advised of any medical appointments for the child including but not limited to the child attending upon any counsellor, psychologist, psychiatrist or other physician and sufficient notice of any such appointment(s) shall be given to the other party so that the other party may attend at such appointments.

13. Each party shall do all things and sign all documents necessary to authorise and direct any daycare/preschool attended by the child to discuss with the other party the child’s attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the daycare/preschool and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the daycare/preschool or connected with the daycare/preschool.

14. Neither party shall relocate the child’s residence outside the State of New South Wales without the prior written consent of the other.

15. On a without admissions basis, that the respondent shall ensure that his son F not be present or in contact with the child for the purposes of order 4 above;

1. On a without admissions basis, that the parties mutually agree not to physically discipline the child;

2. That pursuant to Section 65DA (2) and Section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the Facts Sheet attached hereto and these particulars are included in these orders.

3. That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and to do all things necessary to give validity to such deed, document or instrument upon receipt of Affidavit evidence of such refusal or failure.

4. That within 7 days of these orders being made, the parents are to enrol in the program known as “keeping Kids in Mind” and are to provide the other party’s solicitor and the ICL with evidence of such enrolment and a certification of completion once completed.

ANNEXURE “C”

ORDERS SOUGHT BY THE ICL

1. That the child, B born … 2013 live with the mother.

2. That the child spend time with the father each Saturday from 10am to 4pm.

3. That the father be restrained from bringing the child into contact with F born … 2000.

4. That changeover occur by way of the father collecting the child from the mother or her nominee at McDonalds Restaurant Suburb D.

5. That the father speak with the child by telephone each Wednesday from 5pm and 5.30pm by way of the father telephoning the child on a mobile telephone number to be provided to the father’s solicitor by the mother’s solicitor upon the making of these orders and that the mother facilitate that time by ensuring that the child has access to the mobile phone, answers the phone in the period between 5.pm and 5.30pm and that the phone is charged and in range.

6. That the parents be restrained from physically disciplining the child.

7. That the parents are restrained from denigrating the other parent or a member of the child’s family in the presence or hearing of the child and that the parents will do all things necessary to ensure that the child is not in the presence of any third party who seeks to denigrate the child’s other parent or a member of the child’s family.

8. That within 7 days of the making of these orders, the parents are each to enrol in the program known as “Keeping Kids in Mind” and are to provide the other party’s solicitor and the Independent Children’s Lawyer with evidence of such enrolment and a certificate of completion once completed.

9. That this matter be expedited to final hearing noting that interviews for a Chapter 15 Expert Report are to occur on 26 February 2018.