CHRISTY & YOUNG - [2020] FamCA 911

FAMILY COURT OF AUSTRALIA

CHRISTY & YOUNG

[2020] FamCA 911

FAMILY LAW – CHILDREN – Interim parenting – Where the mother contends that the children are at risk in the father’s care on the basis of sexual abuse allegedly perpetrated by the father’s partner towards the children – Where the mother proposes that she hold sole parental responsibility for the children and that the children spend very limited supervised time with the father at a contact centre – Where father denies that the children are at risk in his care on any basis and proposes orders that would see the parents equally share parental responsibility and the children spend substantial and significant time with him on an unsupervised basis – Where the ICL does not agree that it is in the children’s best interests for their time with the father to be limited and supervised by a professional agency and proposes orders that will see the children spend increased time with their father supervised by the paternal grandparents – Where on the available evidence it appears the children receive a benefit from maintaining a meaningful relationship with their father – Where the allegations of sexual abuse against the father’s partner have been investigated by JCPR and have been found to be unsubstantiated – Where it is unlikely that a court will assess that the children are at an unacceptable risk of harm in the care of either parent – Where it is not appropriate for any order to be made in relation to parental responsibility at this interim stage – Where it is appropriate to make orders relating to changeover and restraints on each party given the parental and interfamilial conflict which appears to be the most significant risk factor in the dispute.

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

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
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Christy

RESPONDENT:

Mr Young

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

FILE NUMBER:

PAC

5254

2019

DATE DELIVERED:

26 October 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

22 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Bainbridge Legal

SOLICITOR FOR THE RESPONDENT:

Mobile Legal Services

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

ORDERS

Pending Further Order -

All previous parenting orders in relation to the children X born … 2014 and Y born … 2016 (“the children”) are hereby discharged.
The children live with the mother.
The children spend time with the father as follows:
(a)In the first weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;
(b)In the third weekend of each calendar month, from 10.00 am to 6.00 pm on the Saturday;
(c)For the purposes of (a) and (b) above, the paternal grandparents, Ms B and Mr C, or either of them, shall be present to supervise the children’s time with the father.
For the purposes of supervision the paternal grandparents, or either of them shall:
(a)Ensure that they are present in the company of the children at the times that the children are in the care of the father;
(b)Ensure that the children are not left in the company of the father’s wife at any time;
(c)Remove the children from the care of the father if the children experience any distress that is caused by the father at any time;
(d)Ensure that the children are returned to the care of the mother early should the paternal grandparents not be in a position to supervise the entire period that is provided in Order (3) above.
For the purposes of Order (4) above, the mother shall provide the paternal grandparents with her mobile telephone number at all times and keep them informed in relation to any change.
For the purposes of changeover, the father shall send the mother a text message by no later than 6.00 pm on the Friday to advise her at which location the children will exercise time with him, and the mother shall cause the children to be delivered to the location. The paternal grandparents or either of them shall return the children to the mother either by way of their own mode of transport or as passengers with the father and the children in the father’s vehicle.
The parties are hereby restrained from:
(a)Discussing these proceedings with the children or permitting a third person from so doing;
(b)Denigrating the other parent to the children or in their hearing or presence or permitting a third person from doing so, or using social media platforms to do so; and
(c)Publishing any information on social media in relation to the children and/or in relation to the proceedings relating to the children.

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 Christy & Young 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 PARRAMATTA

FILE NUMBER: PAC 5254 of 2019

Mr Christy

Applicant

And

Mr Young

Respondent

REASONS FOR JUDGMENT

Introduction

The parties (“the mother” and “the father”) cannot agree about the future parenting arrangements for their sons aged five and four (‘the children”) following the breakdown of their three year relationship.
Following separation in early 2017 the children continued to live with the mother and the father moved to live with his parents (“the paternal grandparents”). The parties reached agreement about the children’s time with the father and have entered into two parenting plans to give effect to this agreement.
In the early months of 2019 each of the parents raised concerns about risks said to be posed in the other parent’s household which led to some involvement by the Department of Communities and Justice (“the Department”).
In May 2019 the mother unilaterally ceased making the children available to spend time with the father.
The father commenced proceedings in October 2019 seeking to spend time with the children. The parties reached agreement for the father to spend some limited supervised time with the children and interim orders were made to this effect. Since these orders were made the Department has assessed any complaints of risks of harm as unsubstantiated and consider that the children are safe in the care of both parents.
In this application for variation of interim orders the father seeks various orders including that the children’s time with him be increased to three nights per week and not be supervised. The mother who contends that the children are at an unacceptable risk of harm in the care of the father seeks orders that will see the children’s time with the father remain supervised and limited to a block of four hours per month.
The Independent Children’s Lawyer (“the ICL”) does not agree that it is in the children’s best interests for their time with the father to be limited and supervised by a professional agency and proposes orders that will see the children spend more time with their father than under the current orders with supervision to be undertaken by the paternal grandparents.
The question for me to determine is which of the proposals is proper having regard to the best interests of the children as the paramount consideration.

Background

The mother aged 30 and the father aged 28 met in late 2013 and began living together a few months later. In 2014 the first of their two sons (“the older child”) was born. The second son (“the younger child”) was born in 2016.
The parties separated in about March 2017 when the father moved out to live with the paternal grandparents and the children remained in the care of the mother.
The parties reached an informal agreement in relation to the care of the children which was formalised in a parenting plan in August 2017.
In accordance with that plan the children spent two nights each week in the father’s care. This arrangement continued for a few months, but then was not facilitated by the mother from about February 2018.
In July 2018 the parties agreed to a new parenting arrangement whereby the children spent time with the father three nights per week in the first week of a fortnightly cycle, and two nights in the second week. This arrangement was formalised in a second parenting plan in October 2018.
In November 2018 the father took the children for an interstate holiday together with his partner (“the father’s partner”) and her child for 10 days.
In March 2019 the mother went on a holiday with her former partner (“the mother’s former partner”) and the maternal grandparents and left the children in the father’s care for five days.
It is the father’s case that while the children were with him during the mother’s absence, the older child then aged four reported first to the father’s partner and then to him that the mother’s former partner had been choking him and had hurt the child’s back.
The father made a notification to the Department formerly known as Family and Community Services (“the Department”) about the alleged physical abuse in March 2019. According to Departmental records there was no capacity for this complaint to be investigated.
When the mother returned from her time away the father and his partner informed the mother of the older child’s complaint and expressed their concern and offered support if she were experiencing domestic violence. The mother denied being in a relationship characterised by violence or that her former partner had hurt the children.
According to the mother, on 4 April 2019 the older child told her that he had been “touched” by the father’s partner. The mother contacted the Department the next day and according to Departmental records the complaint concerned suspicious indicators consistent with sexual abuse. It was reported that the older child did not want to go to the father’s home and when asked why said “I don’t like his partner”.
Departmental records indicate that the complaint included an allegation that the younger child returns to the mother’s home (from time with the father) with a sore bottom and altered behaviour, including rubbing against his maternal grandmother and commenting that his “doodle is very strong”. It was also reported that the younger child tried to put his “doodle” into the bottom of the older child and his maternal uncle. The report was considered by the Department to be vague and did not contain any disclosure from either child about sexual abuse and it was determined that there was no capacity for the report to be further investigated.
Two days after this disclosure was made the children spent time with their father for two nights, albeit that the mother contends (and the father disputes) that the older child was highly resistant to this occurring.
According to Departmental records, in April 2019 the Department received three further reports in relation to suspicious indicators consistent with sexual abuse. The older child was reported to have disclosed that the father’s partner had hurt him and touched his “doodle and bottom” and he had become distraught and reluctant at the prospect of spending time with the father. Both children were also reported as displaying sexualised behaviour, in particular the younger child who was reported to have rubbed against his maternal grandmother’s leg causing him to have an erection. It was also alleged that on several occasions the younger child had reportedly attempted to penetrate the older child with his penis or finger.
The last mentioned reports were referred to Joint Child Protection Response team (JCPR)[1] and a case was opened which included an interview of the older child. Due to the child’s presentation, insufficiency of information and lack of context, the complaint was not substantiated by JCPR.
[1] The Joint Child Protection Response Program is an agency made up of officers from Community Services, New South Wales Police and New South Wales Health that investigates complaints of sexual abuse, serious physical abuse, and extreme neglect of children.
The children continued to spend weekend time with their father in accordance with the parenting plan notwithstanding the investigation by JCPR.
The father and his partner married in 2019.
In May 2019 the Department received a further report concerning suspicious indicators consistent with sexual abuse. On this occasion it was reported that the older child disclosed that the younger child was touched on the bottom and on the “doodle” by the father’s partner. The complaint was also referred to JCPR but was rejected by that agency due to a lack of contextual detail in relation to the reported information.
After the end of the children’s time with the father on 21 May 2019 the mother unilaterally decided to cease facilitating the children’s time with him.
In May 2019 JCPR decided to close the case without further assessment as there was insufficient information to substantiate risk of sexual harm.
Between July and September 2019 the father made various attempts to make contact with the children but these were resisted by the mother and members of the maternal family. On a number of occasions the children were exposed to verbal conflict between the parents and family members and associates of each party.
In October 2019 the father commenced these parenting proceedings.
In 2020 the father’s daughter from his current relationship was born.
A further report in relation to the alleged physical abuse said to have been perpetrated by the mother’s former partner was made, and on 29 January 2020 (the day before the first listing of the father’s application for parenting orders) the Department received another complaint in relation to various risks in the father’s household. In particular it was reported that the older child disclosed that the father’s partner “hurts him” when the father is at work by touching his doodle and bottom in his bedroom, by hitting, biting and throwing objects at him and by threatening him and being verbally abusive towards him. It was reported that both children disclosed that they were required to refer to the father’s partner as “mum”, have been informed that they will not see their mother again and will live with their father and his partner, and that the older child will be thrown into gaol if he does not behave. It was also reported that both children were displaying sexualised behaviours.
The outcome of investigations into these last mentioned complaints was that the risks of physical, sexual and psychological harm concerns were not substantiated.
At the next court event on 27 February 2020 orders were made with the consent of the parties for the father to spend supervised time with the children for a minimum of two hours per fortnight supervised by a professional agency. These orders were expressed to operate pending the interim hearing.
The children spent time with the father on six occasions following these orders prior to the interim hearing and on two occasions the mother either cancelled the time or withheld the children and they did not spend time with the father. The reports of the contact events by the supervisors are all positive. The father is described in terms such as “affectionate and attentive” “patient and kind” and that he “provided appropriate behaviour management and was engaged and affectionate”. At the end of one report it is recorded that the boys said that they did not want their father to leave. There are no reports of any untoward conduct or matters of concern on the part of the father.

The law & discussion

The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].
[2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
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.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Although when considering interim orders, the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the Court may have some regard to the matters in dispute. In SS & AH[3], the Full Court 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.
[3] [2010] FamCAFC 13
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[4], a decision of the Full Court citing Deiter & Deiter[5]).
[4] [2013] FamCAFC 182
[5] [2011] FamCAFC 82
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
In Deiter (supra), the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
In my view, unless the children are at a serious risk of harm in the care of the father, having limited and supervised time with him as proposed by the mother, and to a lesser extent by the ICL, involves some disadvantages to the children which may be considered to be significant. Supervision by a professional agency also involves some disadvantages for the children given the artificiality of such an arrangement and as it is necessarily for a limited duration due to the cost.
As these proceedings form part of the Magellan Program they should ideally and in accordance with the protocol be dealt with expeditiously. On 16 June 2020 at the interim hearing court event, directions were also made to ready the matter for final hearing including for the preparation of a Family Report. While it may be expected in these circumstances that the Court would be able to allocate a reasonably early final hearing date, the reality in this Court generally, and in this Registry in particular, is that it may be many months before a final hearing can be allocated.

Assessment of contentions about risk

So far as an assessment of the risk of sexual abuse raised by the mother is concerned, it goes without saying that if the children or either of them were to be sexually abused by the father’s partner while spending time with the father, the severity of the impact of such abuse would be of the highest order.

When considering the likelihood of occurrence of the harmful events I cannot and do not make any findings of fact but will weigh the probabilities of the competing claims in accordance with the relevant principles.
In weighing the probability that the children have been sexually abused by the father’s partner in the past (and thus are at risk on this basis in the future) I attach weight to the fact that the allegations have been investigated by a specialist program established for this purpose and found to be unsubstantiated.
Second, I attach weight, as submitted on behalf of the father, to the timing of the allegations and consider it of significance that the older child first made a complaint about being “touched” by the father’s partner a very short time after the father first expressed concern that the mother’s former partner had hurt the children.
I also consider it a weighty matter that the mother did not contact the father to discuss the allegations, which is to be contrasted with the father’s approach when he had concerns about the behaviour of the mother’s partner.
The greater context of the parental dispute and the mother’s tendency towards withholding the children or not facilitating their time with the father on a number of occasions over the three and a half years since separation must also be considered, especially as the mother has at times made the children available to the father even after she maintains the complaints of sexual abuse had been made. It seems unlikely that if the children had reported the matters as the mother contends she would have facilitated the children spending time in the father’s household.
It is also relevant when considering the reliability of the complaints of both children that it is common ground that the children have been exposed to high levels of conflict between the parents and in these circumstances there could be varying reasons why children would make such complaints other than that they are describing actual events. In particular, it may be concluded at final hearing that the mother has encouraged the children to make false reports about the father as in one of the supervised visits it is recorded that the older child said to his mother that he told his father that the father’s partner “hurts us, like you said”.
Further, the reported concerns about the behaviour of the children which the mother appears to consider as sexualised are not necessarily indicators of sexual abuse.
Submissions made on behalf of the mother in relation to the question of the risk of harm posed by the father or arising from his care of the children seem to proceed on the basis that those complaints are true simply because they have been made.
Having regard to each of the foregoing matters I consider that it is unlikely that a Court will ultimately find that the father’s partner has sexually abused the children as alleged. Further, I consider it weighty that there are no allegations made to the effect that the father has perpetrated any abuse of the children and at the interim hearing it was identified that the risk arises because of his failure to properly supervise the children’s time with his partner.
It is also contended on behalf of the mother that there is a risk of psychological harm to the children posed by the father arising from particular disparaging remarks that the father is alleged to have made. These comments (to the effect that the mother has spoilt the children with gifts) are in my view very minor and could not give rise to psychological harm even if made especially when compared to the harm that is likely to have occurred as a result of both parents exposing the children to their conflict which appears to be the most significant risk factor in this dispute.
The father also raises in his evidence concerns about physical harm alleged to have been perpetrated by the mother’s (former) partner. According to the mother’s evidence her relationship with that partner has now ended and while it may be relevant in relation to the mother’s capacity to consider whether she appropriately protected the children from any potential unacceptable risk posed by that former partner it was not pressed by the father in these proceedings.
Pursuant to s 65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
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.

The proposals

The father proposes an arrangement that would see the children spend time with him from 4.00 pm Sunday until the commencement of school or day care on Wednesday each week (and specified time at Christmas) and the parents equally share parental responsibility. He contends that these orders are in the best interests of the children.
The mother maintains that it is in the children’s best interests for her to have sole parental responsibility for the children and that they spend supervised time with the father for four hours on a Sunday once each month. She had also sought other orders including monitoring of each party “to confirm there are no signs of drug use” but such an order was not pressed at the interim hearing.
The ICL had in her Outline of Case promoted orders that would see the parents equally sharing parental responsibility and the father spending four hours on a Saturday twice a month with the children (to be supervised by the paternal grandparents or either of them) as in the children’s best interests.
In the course of the interim hearing the ICL made it clear that she did not propose supervision on the basis that the father posed any risk of harm to the children but because the children had experienced significant disruption in their time with the father as a result of allegations made by the mother about alleged harm in his care, and that such supervision may reduce the likelihood of further allegations.
The ICL also agreed that if I assessed a low level of risk as posed by the father a more lengthy block period of eight hours each alternate Saturday would be more consistent with the children’s interests.

Best interests considerations

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.
The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the children of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[6]
[6] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Although the meaning of the phrase “meaningful relationship” is interpreted in a qualitative rather than a quantitative sense, in my view the very limited orders proposed by the mother for the father’s time do not foster the children having a meaningful relationship with him. Further, one of the Objects of the relevant part of the Act is to ensure that children’s best interests are met by ensuring that they 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 children. An application of this principle favours the orders proposed by the father or ICL.
Although the need to protect the children from physical or psychological harm contemplated in the second of the primary considerations is always important, there is no evidence to suggest that a Court will ultimately find that there is an unacceptable risk that the children may be harmed from being subjected to or exposed to neglect or family violence in the care of either parent.
The issue of harm arising from sexual abuse was the only matter explored in this application and for the reasons given I do not assess the risk in this regard in the care of the father as likely to be found to be unacceptable.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

Views expressed by the children

The nature of the children’s relationships

I do not consider that statements said to have been made by the children to each of the parents or as recorded by the supervisor when spending time with the father as an expression of the children’s views as contemplated by this subsection.
The children’s views are yet to be given in a proper way to the family consultant and the family consultant is yet to express a view about the weight to be attached to those views.
Similarly, there has not been any expert assessment of the nature of the children’s relationships with each parent. There is significant dispute between the parents concerning the extent to which the father was involved in the care of the children before and after separation. I consider it unlikely however that the mother would have agreed to parenting arrangements on two occasions as formalised in parenting plans which entailed the children spending quite significant overnight time in the care of their father especially given their young age if she did not accept that the children had an established relationship with him that was beneficial to them.
As discussed previously, I do not consider that the proposal of the mother for the children to spend such limited time with the father and for her to hold sole parental responsibility for the children would be sufficient to foster their relationship with the father.
Up until the time that allegations were made by each parent against the other parent, it appears to have been accepted that the children had an established relationship with the father’s partner who is now his wife and the mother of the children’s half-sibling. The orders proposed by the mother do not foster the children having any relationship with their half-sibling.

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

Although the mother takes issue with the father’s evidence concerning the extent to which he was involved in decision-making and spending time with the children prior to and following separation, he has been diligent in attempting to be involved in the children’s lives in this manner including through making an application to this Court and spending time with the children to the maximum extent possible which has involved considerable expense on his part.

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

I am unable to make any findings as to this matter which I do not, in any event, consider weighty in this application.

Likely effect of any change in the children’s circumstances

The orders proposed by the mother would bring about a further reduction in the very limited time that the children spend with their father. Having regarding to the reports from the supervisor of the father’s interim time with the children to date, I consider it likely that any further reduction in this time would be detrimental to the children and experienced as a loss by them.
The orders proposed by the father will bring about a significant change in the children’s circumstances as they would institute an arrangement that is close to an equal shared care. I consider it likely that notwithstanding the positive and beneficial relationship between the children and father the children would experience difficulties being separated from the mother when she has been almost exclusively caring for them for the past 18 months.
The proposal of the ICL including the amendments adopted in the course of the interim hearing will bring about a more limited change in the children’s circumstances and will give the children the benefit of increased time with the father while not involving substantial separations from their mother.

Practical difficulty and expense of the children spending time with and communicating with a parent

Although it is not entirely clear, it appears that the mother’s proposal which refers to “supervised time” between the children and the father envisages that supervision be undertaken by a professional private agency as is currently the case. Such supervision is expensive and has to date involved some practical difficulties especially when the weather has not been suitable for the nominated activity.
Unless supervision by such an agency is necessary to mitigate any risk of harm, which in my view is not the case in these proceedings, then such supervision may be a real impediment to the children spending meaningful time with their father.
The proposal of the ICL for the children’s time with the father to be supervised by the paternal grandparents or either of them does not involve any practical difficulty or expense. In the course of the hearing it was indicated on behalf of the mother that she had no difficulties with supervision being undertaken by the paternal grandfather, though she objected to such supervision by the paternal grandmother for reasons which were not articulated. She also added, curiously, that she would like one of her parents to also be present as supervisors together with the paternal grandfather, even though there is no evidence that they were aware of or agreed to such an arrangement. In my view such an arrangement would not be in the children’s best interests as it would be likely to expose the children to conflict or at the very least tension between the extended maternal and paternal families, particularly as there is evidence to indicate that the conflict between the parties has extended to other family members in the past.

Capacity of each parent and other persons to provide for the children’s needs

Although it is contended on behalf of the mother that the father’s parental capacity is compromised particularly as he allegedly does not supervise the children properly with his partner, there is no undisputed evidence of any impediment in his capacity to provide children’s needs.
Although the evidence is limited and could not be considered of an expert nature, the reports of the person supervising the father’s time with the children suggests that he is capable at least in that context of providing for the children’s needs.

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

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

There is no clear uncontested evidence in relation to these matters. If it were to be found that the father had exposed the children to the abusive conduct of his partner and failed to protect them, it would clearly demonstrate a poor attitude to the children and to the responsibilities of parenthood. For the reasons given I consider it unlikely that such complaints will be proved but do not make any findings in this regard.
If the mother is found to have unreasonably withheld the children from time with their father and generally been unable or unwilling to support their relationship with him, this may reflect poorly upon her in this regard. I am equally unable to make any findings as to this matter.

Other best interests considerations

It does not appear that there are any allegations of family violence in these proceedings. I am unable to make an assessment as to the weight that should be attached to the likelihood of further proceedings in relation to the children in the event that particular orders are made and there do not appear any other relevant matters or circumstances to take into account in this interim application.

Conclusion

Section 61DA of the Act provides that 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 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 abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the Court considers that it would not be appropriate.
I do not consider it appropriate to apply the presumption at this interim stage, even though in my view there are no reasonable grounds to believe that either parent or the father’s partner has engaged in abuse of the children or either of them. In my view, while there is such a high level of distrust between the parties and as there is no evidence of their capacity for joint decision-making following separation, (and I cannot make other factual findings) it is not appropriate in my view for any order to be made in relation to parental responsibility.
In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred. As explained, I do not consider that the mother’s proposal fosters the children’s meaningful relationship with their father from which, on the available evidence, it may be assumed they receive a benefit. I also consider for the reasons given that it is unlikely that a court will assess that the children are at an unacceptable risk of harm in the father’s care. I also attach weight to the nature of the children’s relationships and in particular the likely impact of any change in their circumstances.
Giving due weight to each of these matters, I consider that the parenting arrangement proposed by the ICL as amended in the course of the interim hearing is proper having regard to the best interests of the children being the paramount consideration. In my view, it may also be appropriate for the duration of the children’s time with their father to be more lengthy, but ultimately consider that the ICL’s amended position is appropriate.
In my view informal supervision by the paternal grandparents or either of them is also appropriate and in the children’s best interests for the reasons advanced by the ICL rather than for the purposes of mitigating any harm posed in the father’s care as I consider it unlikely that such risk of harm will be found to exist.
I also consider the orders with respect to changeover and restraints as proper having regard to the parents’ previous conduct in discussing the proceedings and publishing information on social media.
For the foregoing reasons, I set out the orders at the forefront of this judgment.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 October 2020.

Associate:

Date: 26 October 2020