COPELAND & CARNE

[2016] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

COPELAND & CARNE [2016] FCCA 2570

Catchwords:
FAMILY LAW – Interim parenting hearing – incident of family violence in presence of child – in best interests of child that her time with father resume within context of family therapy.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61BA, 61DA(3), 65D, 65DAA(3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MR COPELAND

Respondent: MS CARNE

File Number: PAC 4538 of 2012

Judgment of: Judge Newbrun

Hearing date: 14 September 2016

Date of Last Submission: 14 September 2016

Delivered at: Parramatta

Delivered on: 24 October 2016

REPRESENTATION

Solicitors for the Applicant: Slater & Gordon Lawyers 

Solicitors for the Respondent:	Amanda Little & Associates
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Parramatta

ORDERS, PENDING FURTHER ORDER

1. The orders of the Family Court of Australia on 18 October 2012 be discharged, apart from order 2 relating to joint shared parental responsibility;

2. That the child X born (omitted) 2007 (“the child”) shall live with the mother;

3. That the child shall continue to engage in family therapy with Dr L (“Dr L”) and to facilitate this:

   (a)each parent shall facilitate the child attending all appointments with Dr L and at such frequencies and times as recommended by Dr L;

   (b)each parent shall be equally liable for any and all costs, if any, associated with the child seeing Dr L, which are not covered by a mental health treatment plan; and

   (c)the mother shall facilitate the child attending any and all appointments with Dr L and the father at such frequencies and times as recommended by Dr L.

4. Each parent shall themselves engage in family therapy with Dr L and attend all appointments, if any, as recommended by Dr L relating to the child and shall each be equally responsible for any costs associated with same.

5. The father shall spend time with the child as agreed between the parties in writing and failing agreement:

   (a)For a minimum of four (4) occasions, in family therapy at such frequencies and times as recommended by Dr L;

   (b)Following the initial family therapy provided for by order 5(a) above, for a period of one (1) month, for two (2) hours each week, as agreed between the parties and failing agreement, each Sunday from 10:00am to 12:00 noon;

   (c)Following the conclusion of time provided for by order 5(b) above, for a period of five (5) hours each week as agreed between the parties and failing agreement, each Sunday from 10:00am to 3:00pm;

   (d)For a period of five (5) hours as agreed between the parties for Christmas and failing agreement, from 10:00am to 3:00pm on 26 December 2016.

6. That each parent shall follow the recommendations of Dr L in relation to the child spending time with the father, including but not limited to, any recommendation in writing to:

   (a)Terminate family therapy;

   (b)The father undertaking more family therapy sessions prior to commencing the time provided by order 5(a);

   (c)Extending or varying the time the child spends with the father pursuant to any provision of order 5 above; and

   (d)Reducing or terminating the time the child spends with the father pursuant to any provision of order 5 above.

7. That notwithstanding any order herein, the father’s time with the child shall be suspended and the child shall live with the mother from 9:00am Christmas Day to 10:00am Boxing Day.

8. That for the purpose of facilitating these orders, changeover shall occur as agreed between the parties in writing and failing agreement, from the (omitted) Shopping Centre in (omitted).

9. That each parent shall ensure that the child attends any extracurricular commitments at which attendance is compulsory or generally expected as part of the enrolment or participation in said activity, including but not limited to cultural, sporting, educational tuition and social events.

10. That the parties shall consult on any extracurricular commitments for the child for which attendance is compulsory or generally expected as part of the enrolment or participation in said activity where such attendance falls at times the child lives with and spends time with each party, including but not limited to cultural, sporting, educational tuition and social events.

11. That for the purposes of facilitating order 9 above, each parent shall provide the other parent with a minimum of seven (7) days’ notice of any extracurricular activity which will require them to take the child to, including all relevant information to assist in such attendance, including the required time of attendance and location.

12. That each parent be permitted to communicate directly with the child’s school, sporting bodies and medical practitioners to obtain any necessary information and/or documents about the child’s progress, and this order shall constitute sufficient authority for such communication.

13. That in the event of the child suffering a medical emergency or illness requiring medical attention while spending time with or living with either parent:

    (a)Each parent is to be notified as soon as practicable;

    (b)Each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend to visit the child, should she be admitted to hospital, noting that the father is not to attend until such time as his time with the child has commenced pursuant to order 5(b) above.

    (c)The medical practitioner or facility be advised that each parent has access to the child’s medical records and the information obtained with them upon request.

14. That the parents shall communicate by way of email in regards to all parenting issues (except for those related to medical or other emergency).

15. That each parent shall inform one another in writing, within 48 hours, of their current residential address, at least one (1) contact telephone number and email address, and shall advise one another, within 48 hours, in writing, should there be any change to these contact details.

16. That the parties are restrained from abusing, insulting, belittling, rebuking or criticizing each other to or in the presence of the child, and from permitting any other person to do so, and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child, or permitting any other person to do so.

17. That the parents shall, within 14 days, enrol in (or if no current enrolments are available, place their names on the waiting list for the next available) a parenting skills course designed to assist them build their skills and abilities in parenting children after separation as recommended to them following their intake assessment. It is noted that this order does not intend to require the parents to undertake the same course and/or the same course at the same time.

18. That the parents shall, within 14 days, provide in writing to the Independent Children’s Lawyer and the other party’s solicitor, details of which course they have enrolled in and/or attending.

19. That the parents shall attend the course as provided for in order 17 in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, obtain information, and if necessary a referral, to a more suitable course as may be recommended by the course provider.

20. That upon completion of any course/s provided for by these orders, the parents shall provide the Independent Children’s Lawyer and the other party’s solicitor, within seven (7) days’ of receipt, a copy of any certificate/s of completion.

21. That leave is granted to the Independent Children’s Lawyer to photocopy the material produced under subpoena by NSW Police and provide a copy of same to Dr L.

22. That leave is granted to the Independent Children’s Lawyer to relist the matter on seven (7) days’ notice.

23. That the proceedings be listed for a further short interim hearing in relation to the child’s time with the father, at 10:00am on 17 February 2017.

IT IS NOTED that publication of this judgment under the pseudonym Copeland & Carne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4538 of 2012

MR COPELAND

Applicant

And

MS CARNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing relates to the father’s Application seeking fresh parenting orders in view of not having spent time with the child, X born (omitted) 2007, since about early September 2015. The mother is opposed to the making of such orders, and sought interim orders, inter alia, that the child spend no time with the father.

2. There were final consent parenting orders made between the parties on 18 October 2012 which provided, inter alia, that the child live with the mother, the parties have joint shared parental responsibility, and the father spend time and communicate with the child every second weekend, each Thursday afternoon for two (2) hours, one (1) week of each of the gazetted school holidays, and other discrete days.

3. At the interim hearing, the parties agreed that there was no Rice & Asplund threshold issue that needed to be overcome by either party in view of the fresh interim parenting orders that each party sought.

4. It was common ground at the interim hearing that there was an incident between the parties, in the presence of the child, at the father’s home on 5 September 2015, the Saturday before Father’s Day 2015, following which the mother did not facilitate the child spending time with the father in accordance with the 2012 final consent parenting orders.

5. It was common ground at the interim hearing that the child was emotionally affected by witnessing the incident between the parties and, since about late September 2015, the child had been receiving treatment from a clinical psychologist.

6. It was also common ground at the interim hearing that, following interim consent parenting orders made on 6 May 2016 relating to the parties and the child engaging in family therapy, the child had seen Dr L (“the family therapist”) on three (3) occasions already, with the first appointment having been conducted in the first week of August 2016.

The Competing proposals of the parties

1. The father sought interim orders, inter alia, that the child should spend time with the father as follows:

   a)for a period of 8 weeks, from 9:00am until 5:00pm on Sunday each week;

   b)After the 8 week period in (a) has concluded, each alternate weekend from the conclusion of school Friday until the commencement of school the following Monday;

   c)Beginning with the Christmas school holidays in 2016, for one half of all gazetted school holiday periods; and

   d)Such other and additional times as agreed between the parents.

2. The mother sought interim orders, inter alia, that the mother have sole parental responsibility for the child, and that the child live the mother. She sought no interim order for the child to spend time with the father and opposed the making of the above orders sought by the father.

3. The Independent Children’s Lawyer (“ICL”) sought orders set out in the ICL’s Case Outline (Exhibit C) which provided, inter alia:

   a)The orders of the Family Court of Australia made 18 October 2012 be discharged;

   b)The child live with the mother;

   c)That the child shall continue to engage in family therapy with Dr L;

   d)That each parent shall themselves engage in family therapy with Dr L;

   e)That the father shall spend time with the child as agreed between the parties in writing and failing agreement:

   i)for a minimum of four (4) occasions, in family therapy facilitated by Dr L at such frequencies and times as recommended by Dr L;

   ii)following the initial family therapy provided by order (e)(i) above, for a period of one (1) month, for two (2) hours each week as agreed between the parties and failing agreement, each Sunday from 10:00am to 12:00 noon;

   iii)Following the conclusion of time provided for by order (e)(ii) above, for a period of five (5) hours each week as agreed between the parties and failing agreement, each Sunday from 10:00am to 3:00pm; and

   iv)For a period of five (5) hours as agreed between the parties for Christmas and failing agreement, from 10:00am to 3:00pm on 26 December 2016.

   f)That each parent shall follow the recommendations from Dr L in relation to the child spending time with the father, including but not limited to, any recommendation in writing to:

   i)terminate family therapy;

   ii)the father undertaking more family therapy sessions prior to commencing the time provided by order (e)(i);

   iii)extending or varying the time [the child] spends with the father pursuant to any provision of order (e) above; and

   iv)reducing or terminating the time [the child] spends with the father pursuant to any provision of order (e) above.

   g)That leave is granted to the Independent Children’s Lawyer to relist the matter on 7 days’ notice.

   h)That the matter be relisted for a further interim hearing in relation to the child’s time with the father at a date not before January 2017.

Material relied upon by parties

1. The father relied upon the documents set out on page 1 of his Case Outline (Exhibit A), including subpoenaed material (Exhibits D-H).

2. The mother relied upon the documents set out on page 2 of her Case Outline (Exhibit B), including subpoenaed material (Exhibits D-H)

Issues in dispute in the interim hearing

1. The issues in dispute related to whether the child should spend time with the father, and if so, the nature and extent of such time, and parental responsibility.

Agreed or undisputed relevant facts

1. The father is aged 34 years. The mother is aged 29 years.

2. The parties commenced cohabitation in about 2007 in the (country omitted). On the mother falling pregnant with the child, the parties came to live in Australia in 2007. The father left behind two (2) children from a former relationship in the (country omitted), which he found difficult.

3. On the child’s birth, the mother was the primary carer for the child throughout the parties’ relationship.

4. The parties separated in 2009. Following the separation, the father spent regular time with the child every alternate weekend.

5. Then he travelled to the (country omitted) in 2010 for about four (4) months. In about August 2010, the father’s time with the child lessened.

6. In 2012, the father initiated family dispute resolution. The mother did not participate. The mother states that in about June 2012 she stopped having any contact with the father.

7. In October 2012, consent parenting orders were agreed to by the parties. The mother had legal advice before the orders were made. Prior to the orders being made, the mother had contacted a solicitor to try and formalise an agreement between herself and the father by way of consent orders.

8. Thereafter the father began spending time with the child pursuant to the orders, including alternate weekend time from Friday afternoon until Sunday evening, Thursday afternoons and school holiday periods. Thereafter, due to the child’s extracurricular activities, the child was not able to spend time with the father on Thursdays.

9. In early 2014, the mother attended her GP and she was prescribed anti-anxiety medication.

10. In December 2014, the mother travelled overseas with the child for five (5) weeks to the (country omitted).

11. The father’s new partner, Ms N, has a daughter name A, aged about 14 years, and she lives with the father and Ms N. The father’s two (2) children from his former relationship live in the (country omitted) are aged about 14 years and 15 years.

12. There was an incident between the parties on 5 September 2015 at the father’s home, with the child being present. The parties were involved in a physical altercation following a verbal disagreement as to when the child was to be returned to the mother’s care on the afternoon of the next day, Father’s Day. Eventually the police were called by the father to the father’s home. Both parties gave statements to the police. The father was not charged with any offence by the police.

13. The parties are in dispute as to which party caused the altercation; they each blame each other. The mother asserts that the father assaulted her, however the father asserts that he was merely defending himself from the mother’s assaults.

14. The Court has considered the affidavit from Mr P (he asserts that the mother assaulted the father). The subpoenaed material from the NSW Police, which is in evidence, has been considered. The Court notes the police stated that the parties had engaged in a “push and shove” physical altercation over the access arrangements for the child, with the mother wishing to pick the child up early so that the child could see her grandfather, also on Father’s Day. At this interim hearing, the Court is unable to determine which party was at fault for this incident.

15. The father states that the child was left crying and upset by the incident. When the child left the premises with the mother the father states that the child was in a very distressed state and was crying uncontrollably. The father states that the child was deeply shaken by having witnessed “the entire episode”.

16. Since the above incident, the mother did not facilitate the child spending time with the father.

17. The father works in full-time employment in the City of Sydney; he arrives home at about 6:00pm to 7:00pm, but has some work-hour flexibility.

18. The father states that the child has a very close relationship with Ms N and A.

19. Following the incident, the child went to see a clinical psychologist at the (omitted) Therapy Centre, according to the mother, “to manage her way of dealing with the situation.” A report of the treating clinical psychologist is Annexure C to the mother’s affidavit.

20. The one (1) page report dated 17 December 2015 of the clinical psychologist states, inter alia, that she has had five (5) sessions with the child thus far. She has diagnosed the child with Post-traumatic Stress Disorder (“PTSD”). She states that this diagnosis was caused by the child witnessing domestic violence. She refers to the child describing experiencing symptoms consistent with the disorder. She stated that the child reported fearing the father would break into the house to harm her mother. She stated that the child reported anxiety whilst being out in public, as she feared she would see the father, or his car driving on the roads. She stated that any time the child would see a car that looked like the father’s car, she would have an anxiety response, such as heavy breathing, shaking and sweating. She stated that the child also advised that she actively avoided thoughts of the traumatic event, and avoided talking about it. She closed her eyes when going past a street that reminded her of the event. She also reported experiencing somatic complaints such as a sore tummy, and worrying, whilst away from the mother.

21. The subpoenaed material from the (omitted) Therapy Centre, in relation to the child’s attendances at that centre, indicates that on the child’s ninth session, on 26 May 2016, she was informing the psychologist that:

    a)“she had been having nightmares and flashbacks, bad memories (for example, crying in the bathroom all night)”;

    b)“in mum’s bed again”;

    c)“keeps getting headaches”;

    d)“waking up with nightmares, then go into mum’s bed”;

    e)“been doing meditation”;

    f)“feels unsafe from nightmares”; and

    g)the psychologist noted that going past the street is a trigger.

1. In the clinical psychologist’s letter of 3 May 2016, she states, inter alia, that her contact with the child has primarily related to helping the child deal with PTSD instigated by the domestic violence incident. She states that the child has made significant progress, and appears to have benefited from the sessions. However, as of their last session, the child was still having some issues with sleeping, including experiencing anxiety before bedtime, refusing to sleep on her own, and suffering nightmares. She states that her sessions with the child will continue to focus on these evolving issues, offering cognitive behavioural, and mindfulness strategies to assist in the child’s adjustment.

2. In the child’s GP’s letter to the clinical psychologist of 22 February 2016, the GP states that the child is continuing to see the psychologist for continued management of PTSD. The GP states that the child needs to continue with the same interventions.

3. The clinical notes of 28 September 2015, relating to a consultation between the child and the clinical psychologist, state, inter alia, that:

   a)the child has been “anxious” everywhere;

   b)she had been “having bad dreams about the father;”

   c)she has been “having flashbacks and get really worried;”

   d)she gets “scared for at least 10 minutes after thinking saw dad’s car or friend;” and

   e)was blaming herself, experiencing angry outbursts, and hypervigilance with sleep disturbance.

Submissions of the Parties

1. The father submitted, inter alia, that it was important to note the mother, with the benefit of legal advice, had consented to the final parenting orders of 18 October 2012; any evidence by the mother against the father now relating to events preceding that time should be given little weight. Further, any evidence by the mother against the father, now relating to events after that date up until the incident of September 2015, should similarly be given little weight because at no time leading up to that latter date did the mother seek to vary the orders of October 2012. The father pointed to inconsistencies in the mother’s affidavit evidence and what appeared in the NSW Police subpoenaed material in relation to the incident of September 2015.

2. The father conceded that it was an unfortunate incident, however the mother’s submission that it was all father’s fault was incorrect. He submitted that the mother’s stance at this interim hearing, in which the mother sought no order for the child spending time with the father, evidenced a lack of a child focused approach by the mother. The father agreed that a gradual reintroduction of the child spending time with the father was appropriate and that the father’s proposed spend time with orders reflected such an appropriate reintroduction. The family therapy could proceed whilst the child spent such time with the father. The ICL could be apprised of the progress of the family therapy with liberty to the ICL to restore the matter to the Court’s list if any problems were experienced with the child spending time with the father in accordance with the father’s proposed orders.

3. The mother submitted, inter alia, that the October 2012 orders were not completely followed by the father; for example, the order relating to Thursdays, only happened on one (1) occasion. Prior to October 2012, the father spent substantial time away from the child, for example when he was overseas. The mother submitted that after the October 2012 orders, there were problems with the child spending time with the father, however the mother did not attempt addressing the issue with the father as it would just result in the father verbally abusing or threatening the mother (paragraph 130 of the mother’s affidavit). The mother submitted that the child will be placed at a serious risk of psychological harm if she is to spend time with the father. The mother submits that the views of the child are that she refuses to spend time with the father. The mother submitted that the father lacks a capacity to provide for the needs of the child.

4. The ICL submitted, inter alia, that the father’s interim proposals for the child to spend time with the father posed a risk of psychological harm to the child as his proposals provided too quick a reintroduction of the child with the father. The ICL submitted that any interim orders made by the Court now should be reviewed in about January 2017; by this time the family therapist should be able to make recommendations as to whether overnight time by the child with the father should occur. The ICL submitted that the key to the child’s reintroduction to spending time with the father was the family therapy.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled:  see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 FamLR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120]. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122]. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123]. Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52:

   Consideration of the s 60CC factors that are relevant

   [46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47]. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48]. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49]. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50.] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. 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: section 61DA of the Act. 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: section 61DA(3).

8. If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.

2. Prior to the incident on 5 September 2015, the child would appear to have had a meaningful relationship with the father.

3. It would appear that at least since 5 September 2015, when the child experienced significant emotional distress, she has been fearful of seeing the father and her previous meaningful relationship with the father appears to have become strained if not possibly fractured. She has been receiving treatment from a clinical psychologist since about late September 2015, and in August 2016, began consultations with the family therapist. The child has apparently enjoyed some psychological progress through the treatment from the clinical psychologist and it is to be hoped that, in particular, the family therapy will further assist her in resuming her former meaningful relationship with the father.

4. In the view of the Court, at this interim stage, the child would likely benefit from the restoration of her former meaningful relationship with the father. It is important that that relationship be restored as soon as possible, whilst ensuring that the child does not experience any significant emotional disturbance during that restoration process. The Court is of the view that the father’s proposals provide for too quick a reintroduction of the child with the father and pose a real risk of psychological harm to the child.

5. At this interim stage, it would appear to the Court that to accede to the mother’s proposals for the child to spend no time with the father, there would be a significant risk that the prospect of re-establishing the child’s former meaningful relationship with the father, would be placed in jeopardy.

6. The Court is of the view that the ICL’s proposals will provide the child with the best prospect of restoring her former meaningful relationship with the father, as opposed to the parents’ proposals.

7. Such interim parenting orders, on the evidence presently before the Court, should not detrimentally affect the child’s meaningful relationship with the mother.

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

1. The mother asserts that the child, in the Christmas 2014 school holidays, spent a week with the father in accordance with the Court’s orders, although she hadn’t wished to spend this time with the father. The mother asserts, inter alia, that there were some occasions when the child returned to the mother’s care, following having spent time with the father, when she was hysterical. The Court notes, in this context, that no application to the Court was made by the mother to vary the final consent parenting orders of October 2012, leading up to the incident on 5 September 2015.

2. In the father’s affidavit filed 16 November 2015, Annexure C, an email from the mother of 8 October 2015 to the father’s solicitor states, inter alia, that the child does not want to go to the father’s home “this weekend,” and confirms that the child was traumatised “when she witnessed her father beating her mother and is absolutely terrified of [the father].” In the father’s solicitor’s letter to the mother dated 7 October 2015, it is stated, inter alia, that the child was “traumatised by what had occurred” in the incident on 5 September 2015.

3. The mother asserts, in her affidavit filed on 29 January 2016, that since the incident, the child has been terrified and has slept in her bed every night and panics if they even have to drive near the father’s house. The mother asserts that the child has referred to the father as a “monster” after the incident, and refuses to spend any time with him. The mother asserts that the child now refers to the father as “Mr Copeland” not dad.

4. The Court takes into account the subpoenaed material, in particular the clinical notes of the (omitted) Therapy Centre, and the report of the clinical psychologist (Annexure C to the mother’s affidavit) in relation to the child’s apparent concerns relating to the father.

5. The Court takes into account the above evidence of the mother, relating to the views of the child, whilst taking into account the age of the child (she is approaching 9 years of age).

6. Noting that the child has not spent time with the father for the last 12 months, and noting the child would appear to continue to experience emotional disturbance arising out of the incident and be presently oppositional to spending time with the father, the Court is concerned at this interim stage that should there be a too rapid reintroduction of time to be spent by the child with the father, that the child may well experience further emotional disturbance and become increasingly oppositional to spending time with the father.

7. Based upon the evidence before the Court at this interim stage, the father’s proposals for a reintroduction of time to be spent by the child with him would appear to be excessive and to carry the real risk of the child becoming increasingly oppositional to spending time with the father, and further, experiencing increased emotional disturbance. Further, as submitted by the ICL, there is presently no appropriate evidence before the Court as to how the child might cope with such a reintroduction to spending time with the father, as the father proposes.

8. At this interim stage, in the view of the Court, should interim parenting orders be made that reflect the interim parenting proposals of the ICL, in proposed order 5, an appropriate balance should be achieved by, on the one hand, gradually seeking to restore the child’s former meaningful relationship with the father, with the assistance of family therapy, and, on the other hand, not creating a situation that might lead to the child becoming increasingly oppositional to spending time with the father, or resulting in her suffering increased emotional disturbance.

9. Further, the ICL’s proposed order 6, relating to the parties following the recommendations from the family therapist in relation to the child spending time with the father, should ensure that the commencement and later time spent by the child with the father proceeds as seamlessly as possible for the child and is consistent with the progress of the family therapy.

10. The Court notes the ICL’s proposal (order 24) that the matter be relisted for a further interim hearing in relation to the child’s time with the father at a date not before January 2017. In the view of the Court, at this interim stage, there is much to be said for such an approach; with family therapy hopefully progressing positively, the Court can, at such resumed interim hearing in about February 2017, ascertain the progress of the child’s time spent with the father, in the context of the family therapy, and can consider further or varied interim orders.

Section 60CC(3) - Additional Considerations

(a) - Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The Court refers to its discussions above under the “need to protect” primary consideration. In the circumstances, the Court gives some weight to the views of the child, as discussed above.

(b) - The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussions above under the “meaningful relationship” primary consideration.

2. The father asserts that the child has a close relationship with his new partner Ms N, and that partner has sworn an affidavit confirming this to be the case. The father’s partner states that the child has a very close relationship with her daughter A. The father’s partner states that from her observations the child appears to have a very close and loving relationship with the father. She states that the child was taken by the father and herself on holidays on various occasions. She expresses her willingness to act as a supervisor for the father when he is spending time with the child.

(c) - The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Each party, in substance, asserts that they have taken such opportunities.

2. The parties are in dispute as to whether the father participated in the care of the child following the child’s birth. The mother asserts that she was responsible for every one of the child’s needs. The father asserts that when he was not at work, he would assist the mother in the care of the child.

3. The mother asserts that after separation, inter alia, the father demonstrated a lack of interest in the child’s extracurricular activities.

4. The parties are in dispute as to the reasons why the father’s time with the child lessened from about 2010/2011. The Court cannot resolve this dispute at this interim hearing.

(ca) - The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. There is no significant material before the Court to indicate that the parties have not fulfilled such obligations to 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 either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussions above under the “meaningful relationship” and “need to protect” primary considerations.

(e) - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. There is no significant evidence before the Court of such practical difficulties and expense.

3(f) - The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Both parties would appear to have such capacities, whilst noting the Court’s discussion above in relation to the incident in September 2015.

(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The school reports of the child in evidence indicate the child is progressing well in school; the last school report in the subpoenaed material is for the 2016 mid-year report.

2. The Court notes the mother’s evidence (paragraph 133 of her affidavit) that in about July 2014 the child was tested by an educational psychologist who determined that she was highly gifted and that her memory scored in the highest percentile.

(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.

1. Not applicable.

(i) - The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Subject to the Court’s discussion above in relation to the incident of September 2015, and noting the parties’ disagreements in relation to the father’s care and interest in the child, both before and after separation, both parties would appear to have appropriate attitudes to the child and to the responsibilities of parenthood.

(j) - Any family violence involving the child or a member of the child's family.

1. The mother asserts there was family violence perpetrated against her by the father during the relationship and even after the parties’ separation. The father, at the interim hearing, submits, inter alia, that the final consent parenting orders of October 2012, and the fact that the mother did not seek any variation of those orders later, are inconsistent with these assertions; and, it is submitted that the Court would place little weight upon them.

2. Again, the Court notes its discussion above in relation to the incident of September 2015.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. Not applicable.

m) - Any other fact or circumstance that the court thinks is relevant

1. The mother asserts that she has known the father to consume illicit substances ever since the commencement of their relationship. The mother makes no allegation against the father since the separation in 2009.

2. The father caused to be filed an affidavit from his former partner Ms S. She speaks positively of the father as a good father, including his payment of child support for their two (2) children.

3. The Court is not satisfied, on the evidence presently before it, that the mother’s historical allegations against the father relating to alleged illicit substance and alcohol abuse, justify the ICL’s proposed order relating to drugs screening tests.

Equal Shared Parental Responsibility: subsections 61DA(1) and (2)

1. The Court is of the view, at this interim stage, in light of the significant disputations between the parties, that it would not be appropriate to displace the presumption of equal shared parental responsibility; it is in the child’s best interests to leave order 2 of the Court’s orders of 18 October 2012 in place, relating to joint shared parental responsibility.

2. On the evidence before the Court, at this interim stage, noting, inter alia, the child’s emotional disturbances since the incident of September 2015; her psychological treatment to date and recent commencement of family therapy; the fact that she has not spent time with the father for some 12 months; and appears to be presently oppositional to spending time with the father, it would not be in the best interests of the child, at this interim stage, for an equal time regime to be implemented or indeed to spend substantial and significant time with the father.

Summary

1. Evaluating the above discussed considerations under section 60 CC of the Act, and giving significant weight to the above discussed meaningful relationship and need to protect primary considerations, the Court is of the view that it would be in the best interests of the child to make interim orders as follows:

   a)The orders of the Family Court of Australia on 18 October 2012 be discharged, apart from order 2 relating to joint shared parental responsibility;

   b)That the child shall live with the mother;

   c)That the child shall continue to engage in family therapy with Dr L (“Dr L”) and to facilitate this:

   i)each parent shall facilitate the child attending all appointments with Dr L and at such frequencies and times as recommended by Dr L;

   ii)each parent shall be equally liable for any and all costs, if any, associated with the child seeing Dr L, which are not covered by a mental health treatment plan;

   iii)the mother shall facilitate the child attending any and all appointments with Dr L and the father at such frequencies and times as recommended by Dr L.

   d)Each parent shall themselves engage in family therapy with Dr L and attend all appointments, if any, as recommended by Dr L relating to the child and shall each be equally responsible for any costs associated with same.

   e)The father shall spend time with the child as agreed between the parties in writing and failing agreement:

   i)For a minimum of 4 occasions, in family therapy at such frequencies and times as recommended by Dr L;

   ii)Following the initial family therapy provided for by order (e)(i) above, for a period of one (1) month, for two (2) hours each week, as agreed between the parties and failing agreement, each Sunday from 10:00am to 12:00 noon;

   iii)Following the conclusion of time provided for by order (e)(ii) above, for a period of five (5) hours each week as agreed between the parties and failing agreement, each Sunday from 10:00am to 3:00pm;

   iv)For a period of five (5) hours as agreed between the parties for Christmas and failing agreement, from 10:00am to 3:00pm on 26 December 2016.

   f)That each parent shall follow the recommendations of Dr L in relation to the child spending time with the father, including but not limited to, any recommendation in writing to:

   i)Terminate family therapy;

   ii)The father undertaking more family therapy sessions prior to commencing the time provided by order (e)(i);

   iii)Extending or varying the time the child spends with the father pursuant to any provision of order (e) above;

   iv)Reducing or terminating the time the child spends with the father pursuant to any provision of order (e) above.

   g)That notwithstanding any order herein, the father’s time with the child shall be suspended and the child shall live with the mother from 9:00am Christmas Day to 10:00am Boxing Day.

   h)That for the purpose of facilitating these orders, changeover shall occur as agreed between the parties in writing and failing agreement, from the (omitted) Shopping Centre in (omitted).

   i)That each parent shall ensure that the child attends any extracurricular commitments at which attendance is compulsory or generally expected as part of the enrolment or participation in said activity, including but not limited to cultural, sporting, educational tuition and social events.

   j)That the parties shall consult on any extracurricular commitments for the child for which attendance is compulsory or generally expected as part of the enrolment or participation in said activity where such attendance falls at times the child lives with and spends time with each party, including but not limited to cultural, sporting, educational tuition and social events.

   k)That for the purposes of facilitating order (i) above, each parent shall provide the other parent with a minimum of seven (7) days’ notice of any extracurricular activity which will require them to take the child to, including all relevant information to assist in such attendance, including the required time of attendance and location.

   l)That each parent be permitted to communicate directly with the child’s school, sporting bodies and medical practitioners to obtain any necessary information and/or documents about the child’s progress, and this order shall constitute sufficient authority for such communication.

   m)That in the event of the child suffering a medical emergency or illness requiring medical attention while spending time with or living with either parent:

   i)Each parent is to be notified as soon as practicable;

   ii)Each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend to visit the child, should she be admitted to hospital, noting that the father is not to attend until such time as his time with the child has commenced pursuant to order (e)(ii) above.

   iii)The medical practitioner or facility be advised that each parent has access to the child’s medical records and the information obtained with them upon request.

   n)That the parents shall communicate by way of email in regards to all parenting issues (except for those related to medical or other emergency).

   o)That each parent shall inform one another in writing, within 48 hours, of their current residential address, at least one (1) contact telephone number and email address, and shall advise one another, within 48 hours, in writing, should there be any change to these contact details.

   p)That the parties are restrained from abusing, insulting, belittling, rebuking or criticizing each other to or in the presence of the child, and from permitting any other person to do so, and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child, or permitting any other person to do so.

   q)That the parents shall, within 14 days, enrol in (or if no current enrolments are available, place their names on the waiting list for the next available) a parenting skills course designed to assist them build their skills and abilities in parenting children after separation as recommended to them following their intake assessment. It is noted that this order does not intend to require the parents to undertake the same course and/or the same course at the same time.

   r)That the parents shall, within 14 days, provide in writing to the Independent Children’s Lawyer and the other party’s solicitor, details of which course they have enrolled in and/or attending.

   s)That the parents shall attend the course as provided for in order (q) in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, obtain information, and if necessary a referral to a more suitable course as may be recommended by the course provider.

   t)That upon completion of any course/s provided for by these orders, the parents shall provide the Independent Children’s Lawyer and the other party’s solicitor, within seven (7) days’ of receipt, a copy of any certificate/s of completion.

   u)That leave is granted to the Independent Children’s Lawyer to photocopy the material produced under subpoena by NSW Police and provide a copy of same to Dr L.

   v)That leave is granted to the Independent Children’s Lawyer to relist the matter on seven (7) days’ notice.

   w)That the proceedings be listed for a further short interim hearing in relation to the child’s time with the father, at 10:00am on 17 February 2017.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:         24 October 2016