DAEGER & DAEGER
[2019] FCCA 3929
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAEGER & DAEGER | [2019] FCCA 3929 |
| Catchwords: FAMILY LAW – Interim parenting – where each parent makes serious allegations about the risk of harm to the children from the other parent – where each parent denies those allegations – where false or exaggerated allegations and denials are likely – children to remain in the care of the mother and spend supervised time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS DAEGER |
| Respondent: | MR DAEGER |
| File Number: | WOC 484 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 12 July 2019 |
| Date of Last Submission: | 12 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Caldwell Martin & Cox |
| Solicitors for the Respondent: | Marsdens Law Group |
| Solicitors for the Independent Children's Lawyer: | Phillip A Wilkins & Associates |
ORDERS PENDING FURTHER ORDER:
The children, X born 2007 and Y born 2010 (“the children”), live with the Mother.
The children spend time with the Father as agreed and in the absence of agreement:
(a)Initially each alternate Saturday or Sunday as the parents agree, or failing agreement on Sunday, for no more than 4 hours during the day supervised by the Mother’s sister Ms A or such other person as approved by the Mother;
(b)After a period of 3 months each alternate Saturday or Sunday as the parents agree, or failing agreement on Sunday, from 9am to 5pm supervised by the Mother’s sister Ms A or such other person as approved by the Mother.
The parties continue the intake assessment with C Family Centre Town B and in the event that Ms A is unable or unwilling to supervise the Father’s time and the parties are unable to agree on a substitute supervisor, the Father’s time with the children take place at C Family Centre Town B on such days and such times as provided by the Centre.
For the purposes of Order 2, Ms A, or such other person as approved by the Mother to supervise, shall sign and file an appropriate Undertaking in the form submitted by the Independent Children’s Lawyer prior to such time commencing.
The matter be stood over to the Mention on 6 November 2019 at 11:30am.
The Independent Children’s Lawyer have liberty to re-list the matter on seven (7) days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Daeger & Daeger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 484 of 2019
| MS DAEGER |
Applicant
And
| MR DAEGER |
Respondent
ORAL REASONS FOR JUDGMENT
These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered Reasons amenable to being read.
The case before me is about two children: X, who is 12 years old, and his brother, who is 9 years old. The children currently live with their mother. There is an interim order for them to spend time with their father at a supervised contact centre. That Order was made in the Father’s absence.
The Court must decide what further interim orders should be made, at least pending the receipt of a Family or Expert’s Report, which the Court hopes will be sooner than it takes if the Court has to otherwise obtain it internally.
The Applicant Mother proposes that the children live with her, that she have sole parental responsibility, and that there be no contact between the Father and the children. The Respondent Father proposes that the children live with him, that he have sole parental responsibility, and that the children spend time with the Mother on each alternate weekend.
The Independent Children’s Lawyer proposed that there be no order for parental responsibility, that the children continue to live with their mother, but spend time with their father, at daytimes only, and supervised.
The issues before the Court are plainly apparent from the competing proposals.
The evidence
In the Mother’s case, she relied on the following documents:
a)Initiating Application filed 6 May 2019;
b)Affidavit of Ms Daeger filed 6 May 2019;
c)Affidavit of Ms Daeger filed 21 June 2019;
d)Notice of Risk filed 6 May 2019; and
e)Orders of Judge Monahan made 9 May 2019.
In the Father’s case, he relied on the following documents:
a)Response filed 6 June 2019;
b)Affidavit of Mr Daeger filed 6 June 2019;
c)Notice of Risk filed 6 June 2019; and
d)Affidavit of Ms A filed 8 July 2019.
The Independent Children’s Lawyer relied on his case outline document received on 12 July 2019.
Each party and the Independent Children’s Lawyer provided a very helpful and succinct case outline. I have had regard to all of those documents.
The following material was tendered as evidence during the course of the proceedings:
a)Material produced pursuant to subpoena on the Department of Family and Community Services;
b)Material produced pursuant to subpoena on the NSW Police; and
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, I will include a number of paragraphs from my own decision in a matter called Insley& Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
Discussion
I provide an overview of the cases that were advanced at the Interim Hearing that was before me last week on 12 July 2019. The Mother’s case was a widely drawn case of risk of harm to the children, based on family violence that was perpetrated by the Father on her, and on the children, and certainly in the presence of the children. Whilst the Mother presses an order for no contact at all between the children and the Father, she would consider that an order for supervised time at a supervised contact centre would be protective. The Mother leads, however, no evidence of risk of harm to the children at a supervised contact centre, or, indeed, she does not even articulate the risk to the children in a supervised contact setting.
The Father’s case is an equally widely drawn case of the risk of harm to the children in the Mother’s care, based on her deception, inconsistent and erratic actions, neglect of the children, and, indeed, her own violence. Both parents, it should be noted, seek to portray each other as unfit parents who present a risk of harm to their own children.
The Independent Children’s Lawyer’s case emphasised that both of the children have Autism Spectrum Disorder and thus need, amongst other things, stability in their lives. The Independent Children’s Lawyer contended that on an objective reading of the totality of the evidence, at the present time, the greatest risk to these children is psychological rather than physical. He urged a pragmatic approach that should be adopted by the Court, pending receipt of a Family Report as soon as possible.
I make the following observations about the quite substantial evidence that came before the Court. This is a family that is well known to the Department of Family and Community Services. There are many allegations and counter-allegations of risk of harm to the children based on family violence, exposure to family violence, and neglect.
The Court observes that there may well be substance to these allegations and counter-allegations. Nonetheless, the Department screened most of these out. The Department has taken no action and, indeed, in this Court’s experience, it is unlikely to. A section 91B notice is unlikely to have any effect in this case, as tempting as it might be to make such an order.
A strong impression is formed, from the material produced by the Department of Family and Community Services, that there are parenting deficits for both parents, especially in terms of their insight into the impact on the children of their own actions. A strong impression is formed that both boys have special needs, that is to say Autism Spectrum Disorder. The impression created from the totality of the material is that the Mother has, historically, been more attuned and responsive to this than the father has. Nonetheless, the boys seem to be doing reasonably well under the circumstances.
Both the Mother and Father have lengthy and, shall I say, somewhat colourful criminal histories. In respect of the Father, there is violence, firearms offences, destroy and damage property offences. In relation to the Mother, there is violence, stalk and intimidate, resist arrest, dishonesty, and driving offences.
It should be observed that neither the Father nor the Mother have discharged their duty of disclosure to this Court in relation to their past criminal charges and convictions. In the Mother’s case, she was plainly silent. In the Father’s case, he deposes two versions of events that are plainly inconsistent with the objective evidence, and in this regard the clearest example is the siege that he was involved in.
In a case that is characterised by serious allegations of violence, and equally trenchant denials of violence, an impression is formed of both false and exaggerated allegations, and false and exaggerated denials. Having regard to the authorities, nonetheless, the Court must take the allegations very seriously and act protectively of the children, despite having some nagging doubts about the credit issues surrounding even the Mother.
At an Interim Hearing the Mother gets the benefit of the doubt. There is sufficient past corroboration of her allegations of violence to support her case for the time being. The Father’s denial of the siege incident undermines his denials of other violent incidents.
The impression formed from the evidence in its entirety is as follows. The Mother was probably the principal care provider to these children, though not necessarily consistently and all of the time. There has probably been some family violence, to which the boys have been exposed. It is highly likely that the boys have been exposed to the intense, and what would seem to be intractable, conflict between their parents.
The Mother’s greater involvement in attending to the children’s special needs seems to be the case. Finally, the impression is formed that there is an element of stability, at least for the time being, with the boys where they are.
The Court must, of course, consider a number of the factors that are referred to in section 60CC of the Act. The children probably have a meaningful relationship with both parents, despite the dysfunction that they have experienced in their lives to date. The Mother’s proposal of no contact with the Father is contraindicated, as it denies the boys a meaningful relationship with their father, as well as, possibly, a relationship with their siblings. Subject to risk issues, supervised spends time with the Father maintains this meaningful relationship, though, the Court must admit, in a less than optimal sense.
The Father’s proposal for the children to spend time with their mother would satisfy the need to have a meaningful relationship. The Court must consider risk of harm consideration. It is probably the major issue in this case. The Court accepts the Independent Children’s Lawyer’s contention that, on balance, in a case characterised by very serious allegations and denials, the greatest risk of harm to the children is psychological harm of continued exposure to intense, acrimonious parental conflict. The mere fact of separation, and ongoing proceedings, will assist in moderating this risk.
Nonetheless, the opportunity for the Mother and Father to come into contact with each other must be minimised for the sake of the children. The Court accepts, further, the Independent Children’s Lawyer’s contention, no doubt influenced by his discussions with them, that on balance, the psychological risk to them is best managed by remaining in the Mother’s care and having supervised time with their father. The Court is further concerned that the Father does not seem to have as great an appreciation as the Mother does about the boys’ special needs.
The Court must take into account the views of the children. There are no views I am prepared to place any weight on at this stage. These boys are caught in the crossfire of parental conflict. There is a high risk, indeed, that they will say to each parent what they think the other parent wants to hear, and hence parental reports about the children’s views are unreliable.
The Court must take into account family violence. The Court must act conservatively and protectively. As identified above, there are some concerns about the Father’s denials of family violence when the totality of the evidence is considered.
The last relevant consideration is the impact of change on the children. The Father proposes bringing about a very substantial change in the children’s lives for insufficient reason.
Having regard to the above, and to the totality of the evidence, the Court intends to make orders on an interim basis consistent with the proposal by the Independent Children’s Lawyer, with just a few amendments.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 1 September 2020
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