CANFELD & FALKINS
[2020] FCCA 2570
•9 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANFELD & FALKINS | [2020] FCCA 2570 |
| Catchwords: FAMILY LAW – Interim parenting – whether mother’s time should be supervised by a professional supervisor or by a named individual. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR CANFELD |
| Respondent: | MS FALKINS |
| File Number: | WOC 116 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 31 August 2020 |
| Date of Last Submission: | 31 August 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 9 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Haddock |
| Solicitors for the Applicant: | Soden Legal |
| Counsel for the Respondent: | Mr Hill |
| Solicitors for the Respondent: | Benjamin Solicitor |
| Counsel for the Independent Children's Lawyer: | Ms McConaghy |
| Solicitors for the Independent Children's Lawyer: | Clayhills Escobar Solicitors |
ORDERS
ORDERS PENDING FURTHER ORDER THAT:
The children X (born in 2004), Y (born in 2009) and Z (born in 2012) (‘the children’) live with the Father.
The children shall spend time with the Mother, such time to be supervised by Mr B in alternating fortnightly cycles as follows:
(a)Fortnight one: from 10:00am to 4:00pm on Sunday;
(b)Fortnight two: from 5:00pm Saturday until 12:00pm Sunday.
Order 2 above is subject to Mr B providing an Undertaking to the Court as prepared by the Independent Children’s Lawyer in consultation with the parties’ legal representatives.
For the purposes of facilitating Order 2 above, the Father shall deliver the children to Town C McDonald’s at the commencement of the time and shall pick the children up from Suburb D McDonald’s at the conclusion of the time.
The Mother be restrained from bringing the children into contact with Mr E.
Each party be restrained from denigrating the other in the hearing or presence of the children.
FURTHER ORDERS:
The matter be stood over to the Callover listing on 6 November 2020 at 9:30am (time changed in Chambers).
NOTATION:
(a)The children’s time with the Mother is to commence from 20 September 2020.
IT IS NOTED that publication of this judgment under the pseudonym Canfeld & Falkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 116 of 2019
| MR CANFELD |
Applicant
And
| MS FALKINS |
Respondent
ORAL REASONS FOR JUDGMENT
These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
I had originally planned to deliver written Reasons for Judgment in this matter but the more I reviewed the evidence and considered the submissions made to me, the more I came to the conclusion that the critical issue in dispute was relatively narrow in its scope and therefore could be dealt with just as effectively, and certainly more efficiently, by oral Reasons for Judgment that can be later taken out and published in the usual manner so that the parents may give these Reasons the scrutiny that they may want to give it.
The case is about X who is 16, Y who is 11 and Z who is 8. They currently live with their father and spend time with their mother supervised in an arrangement that does not seem to be working out for reasons, I am satisfied, that include lack of commitment by both parents and the cost of funding private supervision.
The matter was listed for Final Hearing on 31 August, that is, the week before last, for 3 days, but it was clear to me that it could not possibly be confined to that time given the need for close forensic testing of all the evidence. I heard an interim application about the current arrangements for the children to spend time with their mother. The intention is to treat this case as a not reached matter and put it into the November Callover list with such measure of priority as is possible. It is important to understand that any orders I make today may only subsist for 6 months, perhaps even less, which I am hoping is the amount of time before this matter will get a proper hearing date.
The competing proposals
The competing proposals were as follows. The Independent Children’s Lawyer and the Mother were broadly aligned with some minor differences evident from their respective minutes of order. Basically the proposals were for the Mother to spend time with the children on a fortnightly basis supervised by Mr L initially Sundays 9:00am to 5:00pm and progressing to alternate 9:00am Saturday to 5:00pm Sunday. The respective minutes of order are reproduced in the First Schedule to these Reasons. The Father’s preference is for no time but, in that alternative, for supervised time for the Mother at F Family Services Suburb G or a private service such as H Family Services or alternatives. The Father’s minute is also reproduced in the First Schedule to these Reasons.
The evidence before the Court
In terms of evidence, the considerable evidence in this case is referred to in the case outline documents that were filed by the parties and the Independent Children’s Lawyer. I have had regard to the documents, of course, in reaching this interim decision. As well, there were a number of tender bundles and they will be appropriately exhibited.
In the Father’s case, he relied on the following documents:
a)Amended Initiating Application filed 24 August 2020;
b)Affidavit of Mr Canfeld affirmed 20 August 2020 and filed 21 August 2020;
c)Affidavit of Ms J filed 20 August 2020;
d)Affidavit of Ms K filed 26 February 2019; and
e)Case outline document filed 24 August 2020.
In the Mother’s case, she relied on the following documents:
a)Further Amended Response filed 30 August 2020;
b)Affidavit of Ms Falkins affirmed 28 August 2020 and filed 30 August 2020;
c)Affidavit of Mr L affirmed and filed 30 August 2020;
d)Affidavit of Ms M affirmed and filed 26 August 2020; and
e)Notice of Risk filed 8 February 2019.
The Independent Children’s Lawyer relied on her case outline document filed 28 August 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Child Inclusive Conference Memorandum to the Court dated 7 May 2019;
b)Family Report prepared by Consultant Ms N dated 27 May 2020;
c)Tender Bundle prepared on behalf of the Applicant Father; and
d)Tender Bundle prepared on behalf of the Respondent Mother.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, I will include a number of paragraphs from my own decision in a matter called Insley & Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
Discussion
In terms of the issue in this case, the intention of these Reasons is to focus on the interim issues that need to be decided for today and only those interim issues. For example, I do not see the need to determine any issue of parental responsibility at this stage. I observe that both the Mother and Father propose that the Father have a modified form of sole parental responsibility whilst the Independent Children’s Lawyer proposed equal shared parental responsibility. For the time being, I do not see the need to adjudicate on that issue.
The real issue, therefore, is under what circumstances should the children spend time with their mother. I did not understand the Father to be pressing on an interim basis the final order that he ultimately seeks: no contact. He may well pursue that at a Final Hearing. Indeed, I think it needs to be acknowledged that an order for no contact is not out of the question and much is going to depend on what happens between now and the Final Hearing. Nonetheless, I urge him to really think about that.
For present purposes the real issue is under what circumstances should the children spend time with their mother. From the Court’s perspective, a way of looking at this issue is to ask this question: what risk of harm to the children cannot be addressed by supervision by Mr L that could be addressed by supervision by a professional supervised contact service? The first question, of course, is what is the risk of harm to the children in this case? The risks to the children, for present purposes, emanate from their mother and can be summarised as follows.
Firstly, the direct and indirect impact on the Mother of her violent and dysfunctional relationship with Mr E. It is clear that the children have been exposed to family violence from this person. It is clear that the Mother has been subjected to family violence by him. The strong impression from the evidence is that the Mother continues some form of relationship with him. She is thereby exposing herself to physical and emotional risks. She seems to struggle with disengaging from him. Her evidence about this I found to be unconvincing and inconsistent. The risk of the children being exposed to Mr E is minimal, however, as supervision will adequately protect them, whether it is a professional service or whether it is Mr L.
There are indirect risks to the children presented by a mother whose parenting capacity, insight and attitudes are so clearly compromised by her inability to extricate herself from this dysfunctional relationship. The risks here for the children are much more subtle, insidious and, therefore, harder to manage. The risks are manifest not just by what the Mother says which can clearly be managed in any supervision scenario but by her behaviours and attitudes which minimise the significance of violent relationships and the multiple risks to children arising out of this. Thus, for example, if the Mother could not convince the Family Consultant or, indeed, even this Court that she understands the dysfunctional relationship she had with Mr E, how could she manage to respond to a question asked by the children about this? Would she have the clarity of mind to detect emotional distress by the children about what they saw, or heard or their fears about their own mother? Notwithstanding this, appropriate, vigilant, informed supervision can be protective.
The Court is satisfied that in fact Mr L can provide this level of protection subject to the following: firstly, the terms of an undertaking that specifically include close scrutiny of what the Mother says to the children: nextly, that Mr L gets a copy of these Reasons for Judgment; and, thirdly, the length of the supervised time that the Mother must have realistically reflect the level of vigilance that is needed. In this fashion, therefore, the Court is satisfied that supervision by Mr L can deal with the issue of the Mother’s violent relationship with Mr E.
The second risk to the children is that they continue to be exposed to the Mother’s relentless negativity of the Father which she admitted to the Family Consultant and in respect of which there is, albeit untested, evidence in the Father’s Affidavit. Again, this reflects poor parenting capacity, lack of insight and inadequate attitudes. Again, this is a risk to the children, however, that can be managed by vigilant supervision which the Court is satisfied can be provided by Mr L.
The third risk is of the Mother’s drug use, but this is a risk that the Court does not consider to be a serious one provided that the Mother’s time is supervised and that she is subjected to random urinalysis by the Independent Children’s Lawyer.
The fourth risk that was articulated was the risk associated with the Mother’s continued association with friends and associates of Mr E. This is a manageable risk in the context of supervised time. The Mother would do well to completely sever any ties she has with anyone associated with Mr E but this is a matter for her if she ever hopes to progress beyond supervised time with her children. Unsupervised time with the Mother is simply out of the question for now. To be frank, the Mother has to prove herself to have completely disentangled from her relationship with Mr E, or anyone associated with him, in order for the court to even contemplate unsupervised time.
It must be remembered that there are benefits to the children of spending time with their mother. They had a meaningful relationship with her. For many years, she was either the main carer or was very substantially involved in their care. The evidence indicates the children want to spend time with her. In those circumstances, an order for no contact must be the absolute last resort but, on the evidence, one can understand why the Father has proposed the same. It is, therefore, worth persisting with supervised time.
In terms of supervised time, however, there are practical issues that cannot be ignored. The Court accepts the Mother’s case that continuing to pay for private professional supervision is not sustainable. The Court appreciates that private non-professional supervision such as Mr L means that there is no professional objective person and no written report. The Court accepts that Mr L’s evidence is untested and that the Father has concerns about him, but the Court must balance all of these factors in coming to a decision which it believes to be in the best interests of the children and which ensures that a meaningful relationship with their mother is achieved whilst adequately protecting them from harm. It is ultimately a balancing exercise and one which the Court believes can be achieved by using Mr L.
The Court favours, therefore, a version of the orders sought by the Independent Children’s Lawyer in terms of spending time with the Mother. The level of vigilance required by Mr L in this case is so onerous that, in this Court’s mind, lengthy time is impracticable. The Court expects Mr L to be present all of the time that the children are with their mother and within earshot. The Court expects him to provide a detailed written undertaking which addresses the concerns expressed by this Court and which are apparent in the evidence. The risk of harm to these children is not so much what the Mother does but what she might say to, or in front of, the children. Therefore, Sundays 9:00am to 5:00pm is too onerous from the Court’s perspective, let alone a whole weekend.
The Court will make orders along the following lines. The Mother is to spend supervised time with the children, with the supervisor to be Mr L and subject to the provision by him of an undertaking prepared by the Independent Children’s Lawyer in consultation with the Mother and Father’s legal representatives. The time is to be as follows: in the first fortnight it would be Sunday 10:00am to 4:00pm; in the second fortnight it would be Saturday 5:00pm to Sunday 12:00pm. The changeover would be as proposed in the Independent Children’s Lawyer’s order and the various restraints proposed by the Independent Children’s Lawyer would also be made.
The Court has considered but declined to make an order for telephone contact. The evidence before the Court about telephone contact indicates that it has been problematic. The reality is in this case that the Mother and the children will probably communicate with each other via social media anyway and this is probably something that the Court cannot control. It is important to note that these orders are not intended to vacate or suspend the Orders that the Court made on 3 June 2019. These Orders are only meant to vary the orders in relation to the Mother spending time with the children and the various injunctions that are contained in that original order.
It is going to take a few days for these Reasons to be taken out. It is going to be important for the Court to do that because the Independent Children’s Lawyer is not here. The Independent Children’s Lawyer will have to prepare a written form of undertaking for Mr L, and to do so in consultation with the lawyers for the parents. In these circumstances, these orders are intended to commence with the first contact taking place on Sunday, 20 September and alternating weekends thereafter. It will be noted that I have provided for overnight time between the children and their mother though for relatively short periods between Saturday 5:00pm and Sunday 12:00pm. That simply reflects the practicality of having adequate supervision in an overnight context. It does, nonetheless, provide the children and the Mother with the opportunity for a range of different interactions that can take place at night-time that would not otherwise take place during the daytime.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date:18 September 2020
Schedule One
Orders proposed by the Applicant Father
That all previous parenting Orders be discharged.
That the Father have sole parental responsibility for the children X born in 2004, Y born in 2009 and Z born in 2012 (“the children”) and for this purpose the Father will inform the Mother in relation to any major long-term issues, including but not limited major decisions relating to the children’s health, education and/or religion, and will invite the Mother’s views as to same however the Father will have the ultimate discretion and responsibility for the decision.
That the children live with the Father.
That the children spend no time with the Mother.
In the alternative to Order 4 above, that the children spend time with the Mother once per month for a minimum of 2 hours, with such time to be supervised by a professional supervision service and for this purpose:
a. Such time is to be supervised by F Family Services at Suburb G (“F Family Services”) through their self-funded service.
b. In the event that F Family Services is unable to provide their services or continue to provide their services to facilitate these Orders for any reason other than their choosing to terminate due to conduct of the Mother or appropriateness for the children, the parties are to engage H Family Services for Children.
c. In the event that both F Family Services and H Family Services for Children are unable to provide their services or continue to provide their services to facilitate these Orders for any reason other than their choosing to terminate due to conduct of the Mother or appropriateness for the children the parties may engage another supervised contact service in the Region O Area to facilitate the Mother’s supervised time and for this purpose:
i.The Mother is to nominate three (3) supervised contact services in the Region O area to the Father by sending an email to the Father at “email” or another email as directed by the Father.
ii.The Father is to select one of the three supervised contact services nominated by the Mother and is to advise the Mother of his selection by return email.
iii.Within 21 days of the mother nominating a supervised contact service, each parent is to do all acts and things and sign all documents necessary to make an application to that service for supervised contact including participating in any intake process.
For the purpose of supervised contact:
a. Each parent must comply with all reasonable rules of the supervision service.
b. Each parent must comply with any appointments made by the supervision service.
c. Each parent must comply with all reasonable requests or directions of the staff of the supervision service.
d. The Mother is to bear the costs of the supervision service.
Either party may provide to the co-ordinators of any supervised contact service which facilitates the children’s time with the Mother:
a. A copy of these Orders;
b. A copy of the Family Report prepared by Ms N dated 27 May 2020.
That the Father be permitted to provide a copy of these Orders to the children’s school, and any medical and health care practitioners that treat the children from time to time.
That the Mother is restrained by injunction from bringing the children into contact with Mr E born in 1987 by any means whatsoever.
10. That the Mother is restrained by injunction from consuming illicit substances or from consuming prescription medication not in accordance with the quantity and dosage prescribed to her, within 12 hours of coming into contact with the children.
11. That the Father shall facilitate the children communicating with the Mother via letters or cards for the purposes of celebrating special occasions and the Father shall ensure that all letters and cards sent by the Mother are passed onto the children provided the content contained therein is age appropriate.
12. That each parent refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of any of the children and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of any of the children.
13. That pursuant to section 65Y of the Family Law Act 1975 (Cth) the Father is permitted to take the children X born in 2004, Y born in 2009 and Z born in 2012 to a place outside Australia for the purposes of a holiday.
14. That the children X born in 2004, Y born in 2009 and Z born in 2012 are permitted to travel internationally as provided by section 11(1)(b) of the Australian Passports Act 2005 for the purpose of a holiday and for this purpose the Father is permitted to apply for the issue of an Australian passport to the said children X , Y and Z without the necessity for consent by the Mother.
15. That the Mother pay the Father’s costs of and incidental of this application.
Orders proposed by the Respondent Mother
That the Father have sole parental responsibility of the children X born in 2004, Y born in 2009 and Z born in 2012 and that the Father shall at all times make all reasonable effort to promptly inform the Mother of major decisions for the children including but not limited to decisions about religion, schools and medical procedures and the Father shall take account of the Mother’s wishes prior to making a decision about those major decisions.
That the Father shall not relocate outside of the Sydney region without the express written agreement of the Mother or an Order of the Court.
That the child X born in 2004 spend time with the Mother in accordance with her wishes, such time to be supervised by either the Maternal Great Uncle, Mr L, or the Maternal Grandmother, Ms M.
That the children Y born in 2009 and Z born in 2012 (“the children”) live with the Father and spend time with the Mother at all times as may be agreed, but failing agreement as follows:
a.For a period of four months supervised by Mr L from 10.00am to 4.00pm each alternate Sunday;
b.Thereafter each alternate weekend from 3.00pm Saturday to 4.00pm Sunday supervised by Mr L with overnight time to occur at his residence, provided that:
(i)On such an alternate weekend falling not less than 6 months after the date of these Orders, the mother may spend part of that weekend with the children unsupervised, namely the time between 10am and 4.00pm on Sunday;
c.For a period of four weeks in the Christmas/Summer school holidays from 23 December in even numbered years and for a period of four weeks from 28 December in odd numbered years;
d.For a period of two weeks in the Term 2 School holidays supervised by either Mr L or Ms M;
That for the purposes of 4c. and 4d. above, the children may spend that time with the mother at the Maternal Grandmother’s residence in Queensland and the children may travel to Queensland by car provided that a supervisor is present at all times.
That the following drug testing regime is to be complied with by the Mother for a period of 12 months:
a.The time that the children spend with the Mother in accordance with Order 4(a) above will commence after the Mother has provided one negative drug urinalysis test result;
b.The Mother is to undergo random urinalysis testing at the request of the Father no more than once each two months and:
i.The Mother is to comply with such a request within 48 hours of the request being made; and
ii.The test results are to be provided to the Father within 48 hours of receiving the results.
In the event that the Mother returns two (2) consecutive positive drug tests, the time the children spend with the Mother:
a.Shall be in accordance with Order 4(a) for a period of not less than two months;
b.Shall not resume in accordance with Order 4(b) (but excluding Order 4(b)(i)) until after such time as the mother returns two (2) consecutive negative drug tests; and
c.Shall not resume in accordance with Order 4(b(i)).
That the Mother is restrained by injunction from bringing the children into contact with Mr E born in 1987 by any means whatsoever.
That for the purposes of their roles as supervisors in accordance with Orders 3 and 4 above, Mr L and Ms M will give an undertaking to the Court that they will ensure that Mr E is not present with the children and that they will immediately remove the children from the Mother and return them to the Father if Mr E is present.
10. That the Mother may communicate with the children on:
a. the children’s birthdays;
b. the Mother’s birthday; and
c. Mother’s Day,
at times to be agreed between the Mother and the Father, and failing agreement between 6.00pm and 7.00pm on that day, and that any provision of time under this order that is inconsistent with this paragraph be suspended.
11.For the purposes of Order 4, changeover shall occur at Town C McDonalds or at a location as otherwise agreed between the parties.
12.For the purposes of Order 4 when the children spend time with the Mother supervised by Ms M, changeover will occur at a location as agreed between the parties.
13.That within 28 days of the making of these Orders, the Mother will attend upon her GP to prepare an updated Mental Health Plan and the Mother will follow all reasonable directions of her GP to participate in psychological therapy, to access counselling, and adhere to any medication regime prescribed.
14.That the Father is hereby authorised to provide a copy of these Orders to the children’s schools and the Father shall authorise the schools to provide to the Mother all notices, letters, school reports, photographs and copies of certificates and awards which parents normally receive.
15.That the Father will take all reasonable steps to promptly inform the Mother of any special events in the children’s lives such as receiving awards or participating in sporting or other competitions of significance to the children.
16.That the Mother may alone attend (or alternatively attend only in the company of the Maternal Grandmother, Maternal Step-Grand-Father, and/or Maternal Uncle) any of the following of the children’s events and activities:
a.Sporting activities;
b.Extra-curricular activities that allow for parental attendance and participation;
c.School functions and events that allow for parental attendance and participation.
17.That the children communicate with the Mother at any reasonable time as initiated by the children and initiated by the Mother on Sunday and Wednesday between 6.00pm and 7.00pm and at such other times as may be agreed between the parties.
18.That the Father advise the Mother of any change of telephone number or residential address for the children within 24 hours of such change occurring.
19.That the parties encourage and not undermine each child’s relationship with the other party.
20.That each parent is restrained by injunction from:
a.Denigrating the other parent in the presence or hearing of the children and each parent shall immediately remove the children form the presence of any other person who does so;
b.Denigrating any other person with whom either parent is in a relationship with, including members of the other parent’s family and each parent shall immediately remove the children from the presence of any other person who does so;
c.Discussing these proceedings with or in the presence of the children; and
d.Showing the children any documents connected with these proceedings.
21.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
22.Any other order as this Honourable Court sees fit.
Orders proposed by the Independent Children’s Lawyer
That the parents have equal shared parental responsibility for the children X born in 2004, Y born in 2009 and Z born in 2012 (“the children”) on the following basis:
(a)That the parties shall first make a genuine attempt to discuss parental responsibility issues;
(b)In the event that the parties cannot make a joint decision with respect to parental responsibility issues after a genuine attempt to reach agreement then the decision is to be made by the father apart from decisions of relocation which would impact on the mother’s contact with the children.
That the children live with the father.
That the children spend time with the mother as agreed between the parties and failing agreement on a fortnightly basis supervised by Mr L as follows:
(a)On two occasions on Sunday from 9.00am until 5.00pm commencing on the first Sunday after the making of these Orders and the father shall deliver the children to the Town C McDonald’s at the commencement of time and shall pick the children up from the Suburb D McDonalds at the conclusion of time; and thereafter
(b)From 9.00am on Saturday until 5.00pm Sunday and the father shall deliver the children to the Town C McDonald’s at the commencement of time and shall pick the children up from the Suburb D McDonalds at the conclusion of time.
That Order 3 is subject to Mr L providing an Undertaking to the Court setting out that he will ensure that the children do not come into contact with Mr E and that he shall be present when the children spend time with the mother and that he will remove the children from the presence of the mother in the event that she denigrates the father.
The mother is restrained from bringing the children into contact with Mr E.
That each party is restrained from denigrating the other in the hearing or presence of the children.
That the mother shall have telephone contact with the children one two occasions each week.
That the mother be at liberty to attend all school events and any extracurricular activities where it is permitted for parents to attend and the father shall authorise the children’s school and extracurricular activities to provide any notifications to the mother of events which parents are invited to attend.
That the father shall immediately notify the mother of any health emergency involving any of the children.
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