Cao and Cao

[2016] FamCA 751

FAMILY COURT OF AUSTRALIA

CAO & CAO [2016] FamCA 751

FAMILY LAW – CHILDREN – Interim parenting - Unacceptable risk of harm – Risk of sexual abuse – Parenting capacity of each parent and risks posed by the adults in each household – Best interests of the children – The benefit of a meaningful relationship with both parents – The need to protect the children from physical or psychological harm -

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DA

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520 at [26]
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92;
SS & HH [2010] FamCAFC 13

APPLICANT: Mr Cao

RESPONDENT: Ms Cao

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: PAC 3226 of 2016

DATE DELIVERED: 7 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Iuliano

SOLICITOR FOR THE APPLICANT: Turner Freeman

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Norwest Family Law

Orders

1. The children B born on … 2010 and C born on … 2014 (“the children”) live with the mother.

2. The father is to make C available for collection by the mother at his residence at 6.30pm today.

3. The father shall spend time with the children:

   (i)each alternate weekend from 6.30pm Friday until 6.30pm Sunday commencing 19 August 2016 and

   (ii)each alternate Tuesday from after school and day care until 6.30pm, commencing on 23 August 2016 with changeover to occur by the father collecting the children from school and child care.

4. Except for the purposes of time on the Tuesday under Order 3(ii) the father is to collect the children from the mother’s residence at the start of his weekend time with them and the mother is to collect the children from the father’s residence at the conclusion of that time.

5. The children are to spend Mother’s Day with the mother and for that purpose;

   (i)If the children are with the father that weekend his time will cease at 6.30pm the Saturday before Mother’s Day and the mother shall collect the children at that time from the father’s residence.

6. The children are to spend Father’s Day with the father and for that purpose the following shall apply:

   (i)The father shall spend time with the children from 6.30pm the Saturday prior to Father’s Day until 6.30pm on Father’s Day.

   (ii)The father shall collect the children on the Saturday from the mother’s residence and the mother shall collect the children on the Sunday from the father’s residence.

7. The children are to spend the first half of the school holiday with the father in odd numbered years and the second half of the school holidays with the father in even numbered years and for that purpose the following shall apply;

   (i)Commencement of the school holidays is deemed to be 6.30pm on the last student attendance day of term;

   (ii)Conclusion of school holidays is deemed to be 6.30pm on the day prior to student attendance in the new term;

   (iii)Terms and student attendance days will be as determined by B’s school;

   (iv)The mid-term changeover shall be 6.30pm on the day closest to the midpoint;

   (v)The father shall collect the child from the mother’s residence at the commencement of his time with the children, and

   (vi)The mother shall collect the children from the father’s residence at the conclusion of his time with the children.

8. The father is restrained from sleeping with the children or either of them.

9. The father is restrained from discussing these proceedings or any issues relating to these proceedings with the children.

10. The father is restrained from denigrating the mother to the children or in their presence or the presence of either of them or allowing the children to be in the presence of any other person denigrating the mother to the children or in their presence or the presence of either of them.

11. The listing on 6 September 2016 is vacated.

12. The proceedings will be listed for further directions on a date to be advised after the release of the Children’s and Parenting Issues Assessment report.

13. Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the children B born … 2010 and C born … 2014 are to be independently represented by a lawyer in these proceedings.

14. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the children’s interests.

15. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, within 14 days, copies of all documents upon which the parties rely in these proceedings, together with all existing orders and copies of any relevant reports.

16. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

17. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

18. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

19. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances. 

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 Cao & Cao 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

FILE NUMBER: PAC 3226  of 2016

Mr Cao

Applicant

And

Ms Cao

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns B, who is six and C who is two, the children of parents who separated in July 2015.

2. On 12 August 2016 I made interim parenting orders in accordance with the mother’s response to the father’s application and indicated that I would publish my reasons for those orders at a future date. These are those Reasons.

Background

1. The parents who are both 41 began living together in 2009. The mother’s six year old daughter D, from a previous relationship, also lived with the parties. D is currently aged 13.

2. The parents’ first child B, who is currently six, was born in 2010.

3. The parents were married in 2011.

4. The parties second child, a son named C was born in 2014 and is currently two.

5. In June or July 2015 the parents separated, though they both continued to live with the children in the family home, which was owned by the paternal grandparents who lived next door.

6. In August 2015 the mother reconnected with an old friend, Mr E. Mr E and the mother subsequently formed a relationship.

7. On 17 September 2015 there was an incident at the family home, which resulted in police attending the home, though no further action was taken. Following this incident the father moved out from the family home and into his father’s home next door.

8. The parties reached agreement about the parenting arrangements for the children following mediation in February 2016. The arrangement agreed to was that the children would live with the parents in an equal shared care arrangement which involved several changes of care each week.

9. The mother and Mr E moved to a new home in a neighbouring suburb on 1 July 2016.

10. On 14 July 2016 the father unilaterally decided that he would not make the children available to the mother in accordance with the agreed parenting arrangement.

11. On 19 July 2016 the father indicated through a letter from his solicitor to the mother’s solicitor that the mother could spend unlimited time with the children supervised by either of his parents. By arrangement with the father, the mother spent about 30 minutes with the children on 22 July 2016 under the paternal grandfather’s supervision.

12. The father did not send B to school for seven school days when the child was in his care from 15 July 2016.

13. On 26 July 2016 police attended the father’s home following a complaint that B had not attended school. The father returned the child to school on that day. When the mother became aware that B had been returned to school, she attended the school and collected the child. Through her solicitor she notified the father that she had done so and proposed that the father make C available to her, that the children stay with her for the weekend and that the parties then revert to the parenting arrangement that had been in place until interim orders were made. The father refused to agree to this arrangement and at the date of the interim hearing B remained in the care of her mother and C was in the father’s care.

14. After the mother collected B from school on 26 July 2016, she also withheld the child from school for the following 11 school days, allegedly due to concerns that the father may remove the child from the school and retain her in his care. In total, due to the actions of each of the parents B did not attend school for four weeks.

15. The father had proposed initially that a recovery order be made for both children to return to his care and that interim orders be made pending the next court date  (6 September 2016) that the mother spend time with the children each Saturday for two hours supervised by the paternal grandfather.  In her response, the mother sought interim orders that the children live with her, that the father make the child, C available for collection on the day of the orders and that the father spend time with the children each alternate weekend from 6.30pm Friday until 6.30pm Sunday and other ancillary orders.

16. At the interim hearing the father did not pursue his application for recovery order as the mother agreed that in the event that orders were made for the children to live with the father, she would comply with such an order.  He sought the orders that the children live with him and spend two hours each week with the mother supervised by the paternal grandfather.  The mother’s proposal also included the children spending a few additional hours per fortnight on a weekday with the father.

Contested facts

1. In addition to the uncontested facts, the Court may have some regard to the matters in dispute.  In SS & AH[1] in the Full Court, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   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.

4. The father’s case at the interim hearing was conducted on the basis that there was an unacceptable risk of harm to the children in the care of their mother and for this reason he proposed that the mother have limited supervised time with the children and that they otherwise live with him. It is the father’s contention that the risk of harm arises by virtue of the drug use and cigarette consumption of the mother and her partner, and the mother’s exaggerated response to concerns that she may have about the harm posed by the father.

5. It is the father’s contention that the mother and her partner Mr E take illicit drugs and expose the children to cigarette smoke. Both the mother and Mr E deny any drug use and each provide a negative drug screen taken on a single occasion in this regard. While the mother agrees that Mr E smokes cigarettes both say he has never done so inside the house and never exposed the children to passive cigarette smoke.

6. Although the issue of exposure to cigarette smoke and illicit drug use assumed great significance in the father’s case, it was not articulated on his behalf how this cigarette and drug use impacted upon the mother’s parenting capacity, or why it was necessary to impose supervision upon the mother’s time with the children or why this time should be so limited on this basis.

7. The Department of Family and Community Services (“Community Services”) records indicate that a number of notifications have been made to Community Services about the mother and her partner’s smoking but Community Services has not assessed the complaints as necessitating any action.

8. It would be concerning if the mother or Mr E smoked cigarettes or used illicit drugs in the presence of the children, or if the mother’s parenting capacity were impaired by drug use.  However, the allegations made, even taken at their highest, do not in my view give rise to a finding of an unacceptable risk of harm to the children in the mother’s household on this basis.

9. It also had been the father’s contention that a few days after he first withheld the children from their mother, he became concerned that Mr E may pose some form of risk to the children. In particular, he raised concern about an allegation having been made that Mr E may have harmed the mother’s daughter D.  Records of Community Services indicate than in late July 2016 an anonymous complaint of this nature was made and that D was interviewed by police. Mr E was not interviewed by police and denies having sexually abused D or any other person. D denied any matters of concern and no further investigation of this allegation was undertaken.  The father also did not pursue this issue in the interim hearing.

10. Clearly, any allegation that the mother’s partner Mr E poses a risk of sexual harm to the children in her care would be a matter of significant concern for the court in this parenting application.  Putting aside the father’s withdrawal of this allegation however, there is no evidence to support this allegation.

11. While the nature of the mother’s concerns about the father’s care are not entirely clear, it appears that she had alleged in the past that there is some risk of sexual abuse to B in the care of the father. It is also generally her case that the father favours B over C, that he engages in conduct towards B that she has considered to be “sexual grooming”.  Records of Community Services also indicate that complaints have been made that the father has engaged in “grooming” of the child.

12. The mother also has some concerns about sexual harm related to specific incidents.  In August 2015 after the child complained of a sore bottom and the mother observed that it was red and inflamed, the mother said she was immediately “alarmed” and took a photo as the child was reluctant to see a doctor. Although the nature of the mother’s allegation is not clear, she also says in her affidavit when outlining this incident that she found a small vibrator in the father’s bedroom at the time and a box of condoms, one of which was missing. Community Services records indicate that the mother’s concerns in a similar vein were reported to that agency at the time.  This was not pursued by the mother at the interim hearing.

13. The mother says that on 11 July 2016 B told her that “night time is the worst with daddy” and asked the mother “not to tell anyone”. The mother says that B didn’t give her any other details but that she (the mother) was “sick with worry.” The mother says she contacted “two undercover police” who had previously interviewed D following the anonymous complaint.  According to the mother, these officers interviewed B and at the request of one of the police officers the mother took B to the Child Protection Unit at F Hospital for an examination by a doctor and Community Services worker. The mother claims that the doctor was unable to conduct an examination of the child due to the child’s presentation.

14. Community Services records indicate that a complaint was made on 13 July 2016 that following a visit with the father B experienced nightmares, an unwillingness to sleep on her own and other behavioural concerns and told the mother that she had “a sore bottom”, which the mother observed was red. The records indicate that the mother said she was going to take B to the doctor.  The record also notes that “there may be an element of fictitious disorder in mother’s behaviour” but indicated that it was considered by Community Services that further assessment into the allegation was required. Police records in relation to this report indicate detectives investigated the complaint and that “the child Well-Being unit at [F Hospital]” determined that the child had a bacterial infection.  There are no records before the court, in relation to any medical examination conducted at the hospital.

15. The mother’s expresses general “concern” as a result of these matters and says that she wants the father to stop the practice of sleeping with B.  However, the mother does not contend in the orders she proposes or through submissions made on her behalf at the hearing, that the father poses an unacceptable risk of harm to the child on any basis.

16. It is central to the father’s position at the interim hearing that the mother’s concerns about sexual abuse are exaggerated and her actions in response to them are abusive of the children.  It was submitted on the father’s behalf that the mother suffers from a “fictional disorder” which appears to be an expression that the father and his counsel have adopted from a child protection worker who uses this expression in Community Services records.

17. The father claims that on 14 July 2016, when the children were returned to him, B was agitated and spoke of being interviewed the previous day at the mother’s house by a person named “G” who “was from DOCS” and being examined by a doctor in the presence of “G” at the hospital. The father says that he withheld the child from the mother on the basis that she had not informed him about the DOCS interview or medical examination as well as concerns about the mother’s marijuana use and her refusal to tell him where she was living.

18. So far as I understand it, the father contends that the mother has a tendency to “fictionalise” or exaggerate incidents which may have an innocent explanation and in doing so makes complaints to police, Community Services and other agencies and unnecessarily subjects the children, in particular B, to investigations. In my view, while the records of police and Community Services do indicate that there have been a large number of complaints made relating to risk factors in the father’s household in recent months in particular, the level of investigation into these complaints is unclear.  There is only one reference to a medical examination and it is not entirely clear that that examination was in fact conducted.  I am not satisfied that B has been subjected to unnecessary investigations at the behest of the mother.

1. It is apparent from the records of the Community Services that numerous complaints have been made about the parenting capacity of each parent and risks posed by the adults in each household. A safety assessment dated 1 August 2016 considered a number of these matters, including possible sexual abuse by the father towards B, emotional and psychological abuse by both parents in relation to B’s non-attendance at school and allegations that Mr E had sexually abused D. According to the records the mother willingly allowed case workers from Community Services to attend her home and she presented the children to allow caseworkers to interview them. The assessment carried out by Community Services concluded that each of the children was regarded as “safe” and no safety interventions were recommended.

2. In forming a view about the level of risk associated with complaints that each parent makes of the other parent’s capacity, I attach some weight to the records of Community Services.  Departmental officers are aware of the complaints raised by the father about the mother’s conduct, and the circumstances in her home and have carried out an investigation and concluded that the children are safe in the care of the mother.

3. I also attach some weight to the fact that the mother does not contend in these proceedings that the children are at an unacceptable risk of harm in the care of the father. In other words, while it may be that she engages in some level of exaggeration in complaints to Community Services and police, which could amount to an unnecessary use of the resources of those agencies, there is insufficient evidence to suggest that this complaining of itself is causing harm to the children. Accordingly I am not satisfied that the mother’s behaviour in making unnecessary complaints to agencies poses a risk of harm to the children as the father contends.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the 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;

   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.

3. The principles underlying these objects include:

   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)

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.  For the reasons given, I also must make an assessment of risk factors arising from the matters in dispute.

Parental responsibility

1. In this matter, neither parent seeks that I make an order with respect to parental responsibility for the children on an interim basis. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.

2. Under s 61DA(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. The presumption does not apply if the Court is making an interim order, and considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

3. At this interim stage, in my view, it would not be appropriate to apply the presumption as neither of the parties are seeking such an order, and so many critical facts relating to the children’s best interests are unknown or in dispute.

4. So far as other orders are concerned, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Best interests of the child: s 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in subsection (2), are:

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

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

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

The benefit of a meaningful relationship with both parents

1. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

2. In my view, the orders proposed by the father that the mother spend two hours of supervised time with the children per week are insufficient to support the children’s meaningful relationship with their mother.

3. The order for the mother’s time with the children proposed by the father could only be regarded as being in the best interests of the children if there were no benefit to them in having a meaningful relationship with their mother.  The father’s case, even taken at its highest would not support a finding that there is no benefit to the children in having a meaningful relationship with their mother.

4. The mother does not dispute, in submissions made on her behalf or in her proposed orders, that the children will benefit from enjoying a meaningful relationship with both of their parents.

The need to protect the children from physical or psychological harm

1. This consideration is clearly intended by the legislature to be a weighty one as it is both a primary consideration, and the consideration which is to receive greater weight than the other primary consideration.

2. While the mother raises some matters of concern in the paternal household she does not submit that there is an unacceptable risk to the children posed by the father.

3. The father however, submits that a number of circumstances in the maternal household taken in combination give rise to an unacceptable risk of harm to the children in the care of the mother. These concerns are that the mother and her partner expose the children to cigarette smoke and their illicit drug use, that the mother withheld B from school for 11 days to the child’s detriment and that the mother “fictionalises” or exaggerates claims of harm in the father’s household.

4. For the reasons given when considering the allegations by made by the father, I am not of the view that exposure to cigarette smoke or illicit drug use, or the mother’s exaggerated claims of harm by the father give rise to the magnitude of risk that he contends, even taking his claims at their highest.

5. So far as the issue of withholding the child from school is concerned, this is a matter, as I made plain in the interim hearing that reflects very poorly upon the parenting capacity of both of the parents and the tendency of both parents to involve the children in their dispute. It is in my view, the most serious issue that gives rise to the need to protect B and her brother C from harm. Each parent in my view is equally responsible for the reprehensible behaviour in withholding B from school for the purposes of attempting to gain some form of advantage in the parental dispute. It is hoped that both parents have become aware in the proceedings of the concerns held by the court in relation to this matter.  I accept the mother’s submission that it is likely that the parents will comply with the court’s orders and no further instance of withholding B from school will occur.

The additional consideration: s 60CC(3)

Any views expressed by the children

1. The views of the children are unknown except to the extent that each of the parents attributes negative views against the other parent to the children. No weight will be attached to these views said to have been expressed by the children as they are not likely to be reliable given the nature of the conflict between the parties.

The nature of the relationship of the children with each of their parents, and other significant persons

1. Although the extent of each parent’s care of the children when the family was intact is in dispute, there is no dispute that each parent has played a significant role in the care of the children.  It can be assumed that the children have an attachment relationship with each parent. It can also be assumed that each of the children has experienced distress and has been emotionally harmed by being withheld from one of their parents for the month prior to the hearing.

2. The undisputed evidence would suggest that the children share a close relationship with their paternal grandparents.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child

1. The children were previously cared for by the parents following separation in an equal shared care arrangement.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children

1. The extent to which each parent has fulfilled their obligations to maintain the children is unknown and is not a matter of great significance in this interim application.

Likely effect of any change in the children’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. The father’s proposal would perpetuate the highly unsatisfactory arrangement whereby the children would be separated from a parent who has been at least equally involved in their care throughout their lives.

2. In my view, it is likely that C has been distressed by separation from his mother, especially having regard to his young age and a continuation of this separation could not be in his best interests. Similarly, having regard to the mother’s involvement in B’s care, it is likely that B would experience ongoing distress if she were to be separated from her mother and only spend time with her in a supervised setting two hours per week.

3. The mother’s proposal does involve a reduction in the time the children are cared for by the father, though under her proposed orders there will be sufficient time to support the children’s relationship with their father.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. There is no practical difficulty or expense associated with either proposal.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Concerns about both parents’ capacity arises from their apparent lack of insight into the impact upon the children of each of them with holding a child from the other parent and utilising and involving the children in the parental dispute.

2. Concerns also arise about both parents’ capacity as each withheld B from school for a lengthy period of time. In doing so, the parents’ not only involved B in the parenting dispute but failed to meet her important educational needs.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. Little is known about these matters and they are not a weighty consideration in this interim parenting application.

Family violence

1. Allegations of family violence were not a feature of this parenting application.

Conclusion

1. In coming to a decision about orders that are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, there is no basis to make the orders sought by the father as no unacceptable risk of harm arises in the mother’s care.  Having regard to the nature of the parenting arrangement prior to the father unilaterally withholding the children and the mother retaining B in her care, it is likely that the children have been detrimentally affected by the separation from each other and from one parent.  In these circumstances it is important to restore the children’s relationship with each parent.  For these reasons the interim orders proposed by the mother best meet the best interests of the children.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 September 2016.

Associate: 

Date:  7 September 2016