DAEGER & DAEGER (No.2)
[2020] FCCA 2500
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAEGER & DAEGER (No.2) | [2020] FCCA 2500 |
| Catchwords: FAMILY LAW – Interim parenting – further application where each parent makes serious allegations about risk of harm to the children from the other parent – where mother relocates but not to interfere with father’s time with the children – where father seeks to re-agitate issues previously raised – where supervised contact ordered – transfer to the Family Court of Australia at Sydney. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Daeger & Daeger [2019] FCCA 3929 MRR v GR [2010] HCA 4 |
| Applicant: | MS DAEGER |
| Respondent: | MR DAEGER |
| Proposed Intervenors: | MS A & MS D |
| File Number: | WOC 484 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 20 August 2020 |
| Date of Last Submission: | 20 August 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Caldwell Martin & Cox |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Shiels Legal |
| The proposed Intervenors appeared by teleconference |
| Solicitors for the Independent Children's Lawyer: | Phillip A Wilkins & Associates |
ORDERS
The Application in a Case filed by Ms A and Ms D on 14 August 2020 be dismissed.
The Application in a Case filed by the Father on 12 February 2020 be dismissed.
The Application in a Case filed by the Father on 20 May 2020 be dismissed.
The children X (born 2007) and Y (born 2010) (‘the children’) are to spend time with the Father for no less than two hours each alternate weekend, with such time to be supervised by C Family Centre’s supervised children’s contact service located in Town B at such times as nominated by C Family Centre.
To facilitate Order 4 above, the Mother and the Father are each to:
(a)Contact C Family Centre at Town B Town Bwithin 48 hours of the making of these Orders and make an application for C Family Centre 's supervised children’s contact service;
(b)Provide all information and complete all necessary paperwork as may be requested by C Family Centre;
(c)Attend any intake or assessment appointments as may be requested by C Family Centre on such days and times as nominated by C Family Centre;
(d)Complete any such courses as required by C Family Centre; and
(e)Comply with any other reasonable request or direction of C Family Centre for the purpose of implementing these Orders.
To facilitate Order 4 above, the Mother is to:
(a)Ensure that the children attend any intake or assessment appointments as requested by C Family Centre on such days and times as nominated by C Family Centre (including on school days); and
(b)Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by C Family Centre.
These Orders operate as the authorisation of both parents to C Family Centre to provide any Independent Children's Lawyer that has been or may be appointed in these proceedings with any information about the parents’ engagement with their supervised contact service or the progress of supervised time that the Independent Children’s Lawyer may require.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for Directions before a Registrar on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Daeger & Daeger (No.2) 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
And
| MS D |
Proposed Intervenors
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the further orders made in this matter. On 17 July 2019, just over one year ago, I delivered Oral Reasons for Judgment explaining the Orders that the Court made on that date for two children, X and Y, to live with their mother, and spend time with their father. The present application relating to the children is, from this Court’s perspective, a continuation of the proceedings that were adjudicated on 17 July 2019.
Very little has changed. The appalling behaviour of the parents in 2019 continues unabated in 2020. The Orders made for the children to spend time with their father in 2019 have been thwarted and the Court is satisfied that both parents are responsible for this. From the perspective of X and Y, now 13 and 10, the behaviour of both their mother and father in this case is childish, selfish, and has little to do with what is in their best interests.
Background
What I will describe as the first round of this litigation was an Interim Hearing that was conducted before me on 12 July 2019. The lawyers representing both parents and the Independent Children’s Lawyer were experienced family lawyers. In particular, the Court wishes the Father to take note that on 12 July 2019 he was represented by a highly experienced specialist family lawyer who, in the Court’s opinion, argued everything that could possibly be argued in the Father’s case. The Court needs to record this because so much of the Father’s case in the present round of litigation seems to have been predicated on the basis that his case was not presented properly the first time around.
That is palpably not the case. In the Interim Hearing on 12 July 2019 both parents had the opportunity to present, and did present, extensive evidence, and documents were tendered including, significantly, from New South Wales Police and what was then the Department of Family and Community Services. If the Father was unhappy with my decision delivered on 17 July 2019 what he should have done is lodged a Notice of Appeal. Instead, what he did was for all practical purposes largely an effort to convince me to sit on appeal from my own decision of 12 July 2019, meagrely disguised as an application to vary those Orders on the basis of subsequent events which this Court will decide, were of no significance.
In any event, on 17 July 2019, I delivered Oral Reasons for Judgment. Those Oral Reasons were not published in writing simply because no request was made. Either parent or the Independent Children’s Lawyer, could have made that request and it would have been granted. One wonders whether the current round of litigation would have been necessary if they had done so. In any event, this Court, of its own initiative, has decided to publish its Reasons for Judgment of 17 July 2019. These Reasons for Judgment have been published as Daeger & Daeger [2019] FCCA 3929.
The parties and their legal representatives are invited to read those Reasons as well as the present Reasons very carefully. The parents in particular are invited to reflect on how their own behaviour and conduct of the litigation is adversely affecting X and Y.
In any event my Orders of 17 July 2019 provided for the children to live with their mother and spend time with their father in accordance with Orders 2 and 3 made on that day, reproduced as follows:
(2) 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.
(3) 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.
The matter came back before the Court on 6 November 2019. By consent, the Court made Orders varying orders 2(a) and (b) made 17 July 2019 to provide for substitute supervisors. Importantly, Order 4 made on 6 November 2019 provided:
(4) By consent and pending further Order, should the Father be able to arrange and fund for private supervision through a professional supervised contact service, then that provider is to be substituted for the supervisors referred to in the existing and present Orders.
Order 5 provided that if the parents had not already done so, they were to complete the intake for C Family Centre supervised contact centre at Town B.
What is clear from the present round of litigation is that despite this extensive suite of orders the children have not been able to spend time with their father on a supervised basis except to the very limited extent that will be discussed below. Moreover, despite the safety net provision of C Family Centre supervised contact, for some reason that is still not understood by the Court, it appears that neither parent has fully completed the intake process as, in accordance with an email dated 21 August 2020 from the senior case worker/case manager at C Family Centre Town B, neither has registered for the course known as “Keeping Kids In Mind” which is a prerequisite to supervised contact through that service.
The focus now turns to what has happened since the orders referred to above, and what changes, if any should be made to those orders.
The Competing Proposals
By way of an Application in a Case filed on 12 February 2020 and then for good measure filed again but this time under the guise of a COVID-19 urgent application on 20 May 2020, the Father sought orders not for Y and X to live with him, but for the boys to live with one of their aunts, either Ms A or Ms D. It was not until the Hearing itself that Counsel for the Father clarified that his proposal was, in fact that the children live with him or alternatively with either Ms A, or Ms D. Ms A is the sister of the Mother, but supports the Father’s case. Ms E is the Father’s sister. Ms D is the Mother’s sister.
The Mother’s consistent proposal has been that the children live with her and spend supervised time with the Father, either with nominated supervisors or with a professional supervised contact service including C Family Centre at Town B. Doing the best the Court can to understand the Mother’s proposal at the Interim Hearing itself, she seemed to favour supervised contact at C Family Centre Town B.
By way of an Application in a Case filed 14 August 2020 Ms A and Ms D sought leave to join the proceedings, and for the children to live with Ms A “on an interim basis pending determination of the factual issues regarding family violence and child abuse.” Given that the application is for the children to live with Ms A, the Mother’s sister, it is not entirely clear what is the role of her co-applicant, Ms D, also described as Ms F in an earlier Affidavit.
The Independent Children’s Lawyer, Mr Wilkins, had proposed that the Father’s Application in a Case be dismissed, leave not be granted for the maternal aunts to intervene, and that Order 3, made on 6 November 2019, the Order which enabled the Father to arrange and fund private supervisions for a contact service, be discharged. Again, doing the best the Court can, it apprehends that the Independent Children’s Lawyer’s proposal is that the Father should spend time with the children through a supervised contact service.
The evidence before the court
In the Mother’s case, she relied on the following documents:
a)Initiating Application filed 6 May 2019;
b)Response to an Application in a Case filed 11 March 2020;
c)Affidavit of Ms Daeger sworn and filed 7 August 2020Affidavit of Ms Daeger
d)Affidavit of Ms Daeger sworn 9 March 2020 and filed 11 March 2020;
e)Affidavit of Ms Daeger sworn 1 November 2019 and filed 4 November 2020;
f)Affidavit of Ms Daeger sworn 3 May 2019 and filed 6 May 2019;
g)Affidavit of Ms AA sworn 9 March 2020 and filed 11 March 2020;
h)Affidavit of Ms G sworn and filed 17 March 2020;
i)Affidavit of Ms H sworn and filed 7 August 2020;
j)Case outline document filed 14 August 2020; and
k)Notice of Risk filed 6 May 2019.
In the Father’s case, he relied on the following documents:
a)Response filed 6 June 2020;
b)Application in a Case filed 12 February 2020;
c)Application in a Case filed 20 May 2020 (duplicate);
d)Affidavit of Mr Daeger filed 19 August 2020;
e)Affidavit of Mr Daeger filed 14 August 2020;
f)Affidavit of Mr Daeger filed 24 April 2020;
g)Affidavit of Mr Daeger filed 7 August 2020;
h)Affidavit of Ms A filed 6 August 2020;
i)Affidavit of Ms A filed 18 March 2020;
j)Affidavit of Ms A filed 10 February 2020;
k)Affidavit of Ms A filed 25 October 2019;
l)Affidavit of Ms A filed 8 July 2019;
m)Affidavit of Ms D filed 6 August 2020;
n)Affidavit of Ms F filed 25 October 2019;
o)Affidavit of Ms E filed 6 August 2020
p)Affidavit of Ms E filed 18 February 2020;
q)Affidavit of Mr I filed 18 March 2020;
r)Affidavit of Mr J filed 18 March 2020;
s)Case outline document filed 14 August 2020;
t)Written Submissions received 21 August 2020; and
u)Notice of Risk filed 6 June 2019.
In the proposed Intervenors case, they relied on the following documents:
a)Application in a Case filed 14 August 2020;
b)Affidavit of Ms A filed 6 August 2020;
c)Affidavit of Ms A filed 18 March 2020;
d)Affidavit of Ms A filed 10 February 2020;
e)Affidavit of Ms A filed 25 October 2019;
f)Affidavit of Ms A filed 8 July 2019;
g)Affidavit of Ms D filed 6 August 2020; and
h)Affidavit of Ms F filed 25 October 2019.
The Independent Children’s Lawyer relied on his case outline document filed 19 August 2020.
The following documents were tendered as evidence during the proceedings:
a)Supervised Contact Report of 17 May 2020;
b)Tender Bundle prepared on behalf of the Respondent Father;
c)Material produced pursuant to subpoena on School K; and
d)Material produced pursuant to subpoena School L.
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.
The application by Ms A and Ms D to intervene
Ms A and Ms D are clearly aligned with the Father, despite being the Mother’s sisters. They provided evidence to support the Father’s case well before the Application in a Case filed on 14 August 2020. Their involvement as Applicants in this case really points to one of the great unresolved mysteries of this: why, right up until the day of the Interim Hearing itself, was the Father’s proposal was that the children should live with them, rather than with him? The explanation for this was never clearly articulated and, the Court surmises, the change in the Father’s proposal to that of the children living with him probably reflects Counsel’s involvement in the case because respectfully, the Father’s application until then made no sense. The Apprehended Violence Order in place was not an obstacle to the making of the order.
The Court is entitled to infer that, right up until the date of the Interim Hearing on 20 August 2020, the Father did not believe it was in the best interest of Y and X to live with him. That is hardly surprising on any objective appraisal of the evidence in this case, something that appeared to be sorely lacking in the Father’s case. More will be said about that below, but for present reasons the Court needs to explore what benefit there is to Y and X of living with Ms A (pending determination of the factual issues regarding family violence and child abuse).
Both the Independent Children’s Lawyer and the Mother submitted in effect that there was no such benefit to the children and that given the chaotic lives that they have already experienced, the last thing that would be warranted is a further change in their lives. Ms A and Ms D were clearly already going to give evidence in the case. The proposal was a temporary proposal anyway (i.e. pending factual determination of certain issues) and seem to presuppose that these issues would be determined in favour of the Father rather than the Mother.
The Mother’s submission that Ms A and Ms D were likely to be unknown to the children probably lacks substance but is not determinative in any case. A major shortcoming in their Application in a Case is their failure to particularise what arrangements they propose for Y and X to spend time with either their mother or father on an interim basis.
The Court notes that quite unhelpfully Order 4 in the Application in a Case merely sought leave to further particularise orders with respect to contact, schooling, etcetera, within seven days of filing the Application in a Case. The Application was filed 14 August and the Interim Hearing took place on 20 August but no such further particulars were provided.
It is possible that Ms A and Ms D had the best of intentions in bringing this application and were truly focused on what is in the best interests of Y and X. The evidence they filed in their respective Affidavits, however, is highly partisan in favour of the Father which strongly suggests they were aligned with him in the present litigation. There is the occasional thin veneer of objectivity in their evidence. For example, in Ms A’s Affidavit of 10 June 2020, at paragraph 33 she states:
[33] Until there is some finding of fact in regard to these issues, I am seeking to assist the children by having the care and custody of the children on an interim basis.
But at paragraph 30, for example, she states:
I have been made aware that the Applicant Mother made many allegations that the Respondent Father has been violent to her and to the boys. I do not believe these allegations.
Ms A neither explained the basis of her awareness, nor the basis of her disbelief of these allegations. In short, she has taken sides.
Another concern about Ms A’s application is that she works fulltime and has two children of her own. There is no evidence as to how she would rearrange either her work or home life to accommodate Y and X.
The Court is not able to discern any benefit to Y and X of the maternal aunts being granted leave to be joined as parties to the present litigation. Moreover, there is no discernible evidence suggesting that it would be in the best interests in the boys that they live with Ms A, rather than with their mother. It seems predictable that both Ms A and Ms D will continue to be aligned with the Father’s case and give evidence in support of his case. The Court will, therefore, have the benefit of their evidence, such as it is. In the meanwhile, however, there is neither any basis for granting the application to join the proceedings, nor would there be grounds to make the orders proposed. The Application in a Case filed by Ms A and Ms D on 14 August 2020 is dismissed.
What has changed since the 2019 orders?
It appears that what prompted the Father’s Application in a Case filed 12 February 2020 is that in December 2019 the Mother unilaterally relocated the children from Region M to Region NRegion N. One can understand why this might have concerned the Father especially in circumstances where he perceives that he was criticised for relocating the children’s schools at an earlier time. The Father’s case in this regard is however is silent on one salient issue and that is how, if at all, the Orders made by the Court for Y and X to spend time with the Father, have been frustrated by the Mother’s move. On this point the evidence is clear in its silence and the inference to be drawn loud and clear: the Mother’s unilateral relocation was not, of itself, an explanation for, or indeed any reason for, the Father not spending time with the children.
The Mother’s explanation for relocating to Region N is contained, in detail, in her Affidavit of 9 March 2020 at paragraphs 3-11. Her case can be summarised on the basis that she fled from what she experienced to be the actions of the Father and those aligned to him in harassing, threatening and abusing her. The Father, and those aligned to him, of course deny these allegations. Thus, the Court is left in the situation it is typically left in such interim applications where it must take allegations seriously, but cannot be drawn into factual findings when they are clearly not possible. The Court observes that in a case such as the present one where there are so many serious allegations made by the parents against each other, and where the dysfunction in the family unit is plainly evident, the Court must take a conservative, child focussed approach to risk assessment.
From the Court’s perspective, the focus of the Orders it made in 2019 was to create opportunities for X and Y to spend time with their father, and thus to continue the meaningful relationship between them, whilst at the same time protecting the boys from exposure to family violence and high conflict, which characterised the relationship between the parents. There is nothing in the evidence before the Court this year to suggest that this characterisation of the parental relationship has changed. In fact, it is probably worse. This Court’s focus continues to be on making orders that facilitate the boys spending time with their father. This can happen whether the boys live in Region N, or in the area where they previously lived. The real concern of the Court is why the children did not spend time with their father in this period, a matter that will be discussed below. The Mother’s unilateral relocation to Region N is a matter that will no doubt attract much forensic attention at a Final Hearing. It is not, per se, a matter that would have justified the Court reversing its 2019 decision for the children to live with her.
The next basis of the Father’s case raised concerns about the children’s attendance at school in Region N whilst in the Mother’s care. There is no substance to these concerns. The documents tendered in the Mother’s case included records from School K in Region N, and School L in Region N, and this evidence is inconsistent with Father’s assertions. Indeed, when the Father’s allegations are examined closely, including his Counsel’s own submissions, his complaint is about the children’s school attendance whilst in their mother’s care well before the 2019 Interim Hearing. This was a consistent trend in the Father’s case, regrettably. He constantly sought to go over material, concerns and allegations that either were before the Court in 2019, or should have been placed before the Court at that time but were not. There is no basis for the Father’s concerns about the children’s school attendance.
The next basis of the Father’s application seems to be the fact that in July 2020 the Mother was charged with further criminal offences relating to an alleged assault on the Father in 2016. This led to a further Apprehended Violence Order against the Mother, arising out of these incidents. What is clear to the Court, however, is that the underlying factual assertions were matters before the Court in 2019. In other words there is nothing new about these allegations. The involvement of both parents in criminal activity was discussed in the Courts earlier Judgment. The mere fact that the Mother has now been formally charged in relation to alleged events four years ago is not a reason to revisit the Court’s earlier determination, let alone to reverse the decision made.
Another contended reason for revisiting the 2019 Orders that is referred to in the evidence, in the written submissions, but was not covered in oral submissions by Counsel, are further serious allegations made against the Mother, by innuendo and inference, about violent crimes perpetrated on the Father and his sister Ms E. There is, however, nothing to link the Mother to these alleged events. Wisely, the Court surmises, Counsel for the Father chose not to make oral submission about these allegations. If Counsel had drawn the Court’s attention to these matters, the Court may have been exceedingly concerned for the safety of the boys in the care of either the Father and or his sister in light of their belief that someone is seeking to perpetrate harm on them.
The final limb of the Father’s case and the most important issue for this Court, was why the orders made for the children to spend time with the Father have not been implemented. The answer is not entirely clear. The evidence of the parents is either silent on important issues, or conflicts. What is clear is that they each blame each other for the fact that the boys are not spending time with the Father. They each contend, for example, that they have done all that they were supposed to do to complete the intake for C Family Centre at Town B but the objective evidence reveals that it is not in fact the case because neither have done the Keeping Kids in Mind course, a precursor to the commencement of supervised time.
The only reliable evidence that the Court has relates to a supervised visit between the children and their father on Sunday 17 May 2020. The Court regards as unreliable any evidence of either of the parents or any of their witnesses aligned with them that seek to explain why contact did not happen before this date. Indeed, the only reason why the Court can confidently form impressions about the events of 17 May 2020 is because there is an independent record in the form of a Supervised Contact Report dated 17 May 2020, prepared by Children in Focus. This document became exhibit ICL1.
According to this document a supervised contact visit had been arranged between 9:00am and 3:00pm with the location, initially at least, in a reserve in Town U. On the Mother’s part, the changeover was to be facilitated by Ms H. Ms H and the children arrived late and this meant that the Father accompanied by the parent’s older son O, arrived at about the same time. The report indicates that both parties came out of their cars at about the same time. The supervisor introduced himself to everyone. He observed that: “the children were very happy to see their Father and Mr Crawley. They exchanged greetings and hugs.” The supervisor asked Ms H to return at 3:00pm. The report indicates that the Mother had been previously advised during intake that Ms H was to leave the park after she dropped off the children.
At about 9.05am the children, the Father, O and the supervisor went over to the play equipment to play.
At paragraph 4 of exhibit ICL1 the following record appears:
[4] At 9:10am, the Father advised me, “I don’t like Ms H not leaving the park and watching over me and filming the whole visit.” I suggested that the Father should not worry about these things and enjoy his time with the children. The Father told both X and Y that he had called around places to find out what activities they could do, but some were booked out and some were only allowing members to access their services.
Then at paragraph 5 the report notes:
[5] At 9:25am, the Father called Ms A (I read the name on the Father’s phone when he spoke handsfree). The Father complained to Ms A about Ms H violating his right to practice his parenting rights. He kept on mentioning section 61C, He said, “This section gives me authority to practice my 50% of the parenting rights.”
The Father asked the supervisor if P, the children’s cousin, could come and play with them, as they were all the same age. The supervisor explained that this had not been previously discussed. The Father asserted that the solicitors had approved P’s participation. There was a discussion about needing approval to involve P. At paragraph 6 the following is noted:
[6] I also advised the Father that this information needed to be advised prior to the visit as we don’t make decisions on the run; the Father was not happy about this. The Father told me that everyone listens to the Mother and the Mother dictates the rules which doesn’t allow the Father to practice his approved parenting rights. From time to time I advise the Father to enjoy the time with his sons and try to sort out those matters during the fortnight and advise children in focus so that I would note who is allowed at the next visit.
At paragraph 7 of the report indicates that at about 9:35am the Father asked whether they could go for a walk to another park as the Father was annoyed that Ms H constantly watched them from the carpark. It also records that the Father was unhappy that the children kept running to her car to eat food and drink despite the Father advising the children that he had bought food and drinks.
At 9:45am the supervisor, clearly concerned about the mounting pressure of the situation, suggested a game of cricket. Apparently O went back to the car to collect the cricket kit whilst the boys ran off to Ms H’s car which caused the Father further upset. Ms H rang the supervisor and said “If the kids leave this park I would take the kids home and end the visit.”
What occurred thereafter is recited at paragraphs 9 – 11 of the report, reproduced as follows:
[9] O, Y and X started playing cricket and I heard X and Y say they wanted to play in the park we were in. The Father then said in an upset voice, “Ms H is dictating that X and Y stay in the park”. The Father said it was bullying and against his parenting rights and in violation of the agreed orders from the judiciary system. The Father was on the phone with Ms A (as seen on the phone screen) and said “The visit is dictated by the Mother and Ms H is running the show”. I heard Ms A say, “Ms H has no right to be there.” The Father said in an agitated voice, “I will call the police to make Ms H go away from the park”. The Father accused me of being biased and said I was conducting the visit as orchestrated by The Mother. He would not stop as directed by me.
[10] At 9:55am, a car stopped and the Father’s Sister (possibly Ms E) got out of the car and argued with Ms H. By the time the Father, Y and myself came running to the carpark, Ms H has asked both X and Y to get in the car. The Father’s Sister tried to get X out of the car by pulling his arm. Ms H prevented this by standing between the child and the Father’s Sister.
[11] The Father’s Sister accused Ms H of physically abusing her. The Father asked O to film the scene in a loud and commanding voice to prove that what was happening was bullying. Ms H locked X and Y inside the car. I tried to calm the situation by asking both parties to calm down and not to do anything or I would need to call emergency services. Ms H then advised everyone that she was not driving off but would turn the car on for the air-conditioning; she sat inside the car with the driver’s window down.
At about 10:09 am, the supervisor notes that “..as the situation was not calming down, I rang 000 and asked for assistance.”
The police arrived at about 10:20am. Indeed, three police cars arrived on the scene. Several persons were interviewed, including X, the supervisor, and Ms H.
At paragraph 13, the decision obviously having been made by this point that the contact could not continue, the supervisor observed that “..both of the kids seemed calm and were observed to be a little reserved after the whole event happened.”
The report gives the impression that it was the police who had cancelled the visit. The Father was clearly not pleased, according to the supervisor.
It seems as if the visit was well and truly over by 10:40 am. At paragraph 15, the supervisor makes the following observation:
[15] During the whole visit Ms H was calm and poised and acted pretty well not getting carried away with the whole situation. The Father was upset that Ms H was there but did not do any physical gestures of being angry at the park while the visitation was occurring. The Father’s sister appeared to arrive to advocate for the Father and make Ms H leave the park.
It is interesting to review the evidence led from the parties about this incident, though with caution due to the highly partisan evidence.
In the Mother’s Affidavit of 7 August 2020, from paragraphs 2-14, she primarily focuses on the impact on the children of this visit. The Mother deposes at paragraph 10, for example, that immediately after the visit she met Ms H and the children at McDonald’s Suburb Q. She found the children to be silent and withdrawn and then Y burst into tears. The next day, Monday 18 May 2020, the Mother took the children to Town R Police Station where both of them were required to participate in an interview apparently relating to an alleged assault that took place on Y by the Father’s sister, Ms E.
At paragraphs 15-23 of the Mother’s said Affidavit, she deposes to the emotional and physical impact on the children after the event itself. At paragraph 15 she describes this as both “immediate and traumatic.”. Y could not sleep and needed to take a sleeping tablet. He was concerned according to the Mother that his Father and Aunt would come to take him away. The Mother took Y to see a psychologist on 25 May. She deposes to both children attending on the psychologist on a fortnightly basis. At paragraph 19, the Mother deposes that both children have been late at school most days after the visit of 17 May 2020 because apparently their fear of being “taken” by their father or aunt. Both boys are on sleeping tablets to assist with their sleeping with inconsistent results. The Mother deposes to struggling to get the children to school after this event because of the children’s fear of being taken.
Annexed to the Mother’s Affidavit is a record dated 5 June 2020 of what appears to be an attendance on a psychologist or counsellor by the child Y. The forensic weight that can be placed on this document is limited because it is apparent from its own terms that the Mother was present at least for part of the session recorded. Despite this limitation, there may be some observations of the record maker that provides some insight into how Y is experiencing the situation he finds himself in. For example the record notes:
Y identified that was feeling angry, embarrassed, tired, sad, bored and worried. He expressed that he never feels happy or excited.
He also reported that he was
Scared that his Father’s sister would come to school and pretend to be his Mother, and pick him up and take him to his Father’s farm instead of his Mother’s farm.
He also reportedly said words to the effect:
Surprised the cops have not killed me yet… I went to all the schools and they all said to my face that they hate me. I get bullied. There is no point in making friends. There is no safe place.
The Mother also annexes a letter from Ms S, psychologist, dated 27 July 2020. The letter explains that the Mother approached Ms S on a recommendation from the school to provide therapy to the boys. Whilst Ms S makes the admittedly tentative observation that she suspected: “…have many symptoms of Post-Traumatic Stress Disorder” the reality is that even this tentative impression is based almost entirely on the Mother’s report which regrettably from this Court’s perspective, the Court finds is partisan and unreliable.
Ms H provides a detailed account of what occurred on 17 May 2020, in her Affidavit of 7 August 2020. The forensic weight to be placed on this Affidavit is very difficult to assess. The Court needs to be appropriately cautious. Ms H openly declares that she has been involved in the Mother’s Court proceedings indeed has
…attended every mention in the Federal Circuit Court in Wollongong with Ms Daeger as a support person, and I have also attended many of the local court criminal law mentions in Town T and Town U.
Nonetheless, the Court accepts that in all likelihood she has a good relationship with both Y and X and seems to understand some of the challenges they experience because of their autism.
In many respects Ms H provides a very different perspective of the events on 17 May 2020 which, if true, would be of deep concern to the Court. While she agrees for example that the boys appeared very happy to see O, their oldest brother, she did not observe any affection or physical contact between the Father and the boys. Ms H deposes that she observed O take the boys away from the supervisor who was being engaged with by the Father in what Ms H describes as “incessant conversation that appeared to distract him.” Ms H deposes that at one point X came back to the car to get a drink and reported that the Father had said to him “Tell your solicitor you want to come and live with me.”
Ms H deposes that X also told her that his father was getting angry at the presence of Ms H and wanted to move the location away from the park. She deposes that both boys said to her that they wanted to remain in the park and play. Ms H deposes to observing the Father becoming increasingly agitated and talking loudly on his phone to other people.
Ms H deposes that at about 10:00am at a time when both Y and X were in her car the Father’s sister Ms E arrived. She asserts that Ms E came quickly to the car, shouting at the boys and asking them to get out of the car whilst accusing Ms H of being a troublemaker. What occurred from this point onwards is hotly disputed with the account made by Ms E in her Affidavit to be significantly different to that of Ms H. Suffice it to say that from the perspective of the boys what happened should never have occurred and should not have been allowed by two adults who supposedly care deeply for them. Curiously, Ms H asserts that four police cars arrived not three as asserted by the supervisor. She characterises the situation as Ms E attacking Y.
The Father’s account of this incident is found in his Affidavit of 19 August 2020. Doing the best the Court can it seems that the Father’s evidence about the supervised contact visit on 17 May 2020 is found at paragraph 57 of his Affidavit where he deposes as follows:
[57] I have not spent any time with the children in accordance with the orders. After these proceedings were vacated in May 2020 I contacted and organised supervised time with V Family Centre at a cost of $1500 approximately.
The Mother sent the children with Ms H who would not leave the area, and would not allow the children to interact with O and I and would not allow the boys cousin to play with them either. Police were eventually called as my sister Ms E came and told Y and X that they were allowed to get out of the car and play with myself and O. Ms H made false allegations about Ms E grabbing Y, but Ms E was actually hit by Ms H when she approached the car to talk to the boys.
There are a number of difficulties with the Father’s evidence. The first sentence alleges that he has not spent any time with the children in accordance with the Orders, but this is directly in conflict with paragraph 34 of the same Affidavit where he says that on 22 September 2019, he spent time with the boys pursuant to the Orders at their football presentation. Secondly, in the next sentence he refers to contact supervised with V Family Centre, but it is clear that the supervised contact provider was Children in Focus. What follows in the rest of this short account is at best, a truncated summary of events. There is no reference to the role that he played. There is no allegation that Ms H was video recording his time with the children. There is an accusation that Ms H actually hit his sister Ms E, but it is unclear whether this is something he saw personally.
Given the critical importance of the supervised contact visit of 17 May 2020 to the issue of how and when the Father’s time with Y and X would resume it is surprising indeed that he did not give further evidence about this event. It is even more surprising that this is the case given that the Father either had or could have had available to him the supervised contact report of 17 May 2020 given that he paid for the service.
There were only two other people present at the supervised contact visit on 17 May 2020, O the oldest son of the parents and the Father’s sister Ms E. O does not provide an Affidavit after the date of the visit. Ms E swore an Affidavit on 29 July 2020 but, surprisingly she makes no reference to the events of 17 May 2020 at all.
In these circumstances the Court is entitled even at an Interim Hearing to place greater weight on exhibit ICL1, the supervised contact report dated 17 May 2020.
The Mother was not present on this day but her agent Ms H was. It is hard to criticise the Mother or Ms H, for the latter’s role in taking the children to and then collecting them from the supervised contact visit. It is very hard to understand however why she had to remain there. The orders did not provide this and it is likely that the boys would have been spared exposure to an inevitably traumatic event if she had not stayed. No doubt the Mother’s contention would be that Ms H’s presence ensured that an even more dramatic or traumatic event did not occur.
If the Father behaved as is described in exhibit ICL1 it is hard to understand why he could not simply focus on spending quality time with his children who it is clearly recorded were happy to see him and O. If it is the case, as recorded in exhibit ICL1, that the Father was asserting his parenting rights rather than focussing on quality time with the children it creates the regrettable impression that he was more focussed on the conflict with the children’s Mother than he was with spending time with the children.
The involvement of Ms E on 29 July 2020 was equally problematic and simply made things worse for the children.
The Independent Children’s Lawyer described the events that occurred on 17 May 2020 as appalling from the children’s perspective. The Court entirely agrees. If any adult involved in that unfortunate event has any insight whatsoever into how they may have contributed to what the Court considers to be the inevitable trauma on the children they do not indicate this in their evidence. The Mother’s evidence of the impact on the children of this event has not been contested and is not really contestable outside of the witness box and cross-examination. In any event common sense let alone the Court’s experience suggests that the events that are reported in exhibit ICL1 the supervised contact report is likely to have traumatised the children and it would not be at all surprised if they suffered sleeplessness and symptoms of anxiety afterwards.
The Father’s response to all of this is minimalistic and muted and instead he asks the Court to reverse the existing care arrangements for Y and X, move them from the person who has probably been their primary carer for most of their life and move them from their current school where they seem to have a good attendance record, notwithstanding the inevitable further significant impact these changes would have on their lives.
Orders in the best interests of the children
The Court has real concerns about the ability of the significant adults in the lives of Y and X to prioritise the children’s needs over their own needs. The preliminary impression formed of Ms H, Ms A and Ms D is that they mean well and want the best outcome for Y and X but Ms A and Ms D seem too heavily invested in supporting the Father’s case to maintain objectivity.
Orders have already been attempted without success that provide for the Father’s time with the children to be supervised by private individuals or by professional privately paid supervised contact services. The only option left is to, once again, try to implement an arrangement for the children to spend time regularly with their father using the supervised contact service of Town B. This is the Mother’s proposal.
The parents are to do all things to complete their intake procedures at C Family Centre including completing such courses as are required by C Family Centre.
The Father is entitled to spend time with the children for at least two hours each alternate weekend with that supervised contact service but if he can arrange for this to be each weekend or at an differing suitable convenient time this too can take place. If a paid service is available through C Family Centre Town B and the Father is willing to pay the same he may take advantage of that service.
The Application’s in a Case filed by the Father on 12 February 2020 and 20 May 2020 are dismissed.
The Mother sought her costs of the proceedings. The Court declines to make any order for costs in her favour. Her unilateral relocation to Region N was an event that triggered the Father’s Applications in a Case as misguided as they were. She has therefore contributed to this round of litigation.
This matter is transferred to the Family Court of Australia at Sydney. I make this Order for the following reasons. This is a complex parenting matter involving two vulnerable children whose parents are involved in an intractable dispute about the children which has drawn in the extended families. There are very serious allegations made by each parent against the other, all of which will need to be meticulously examined at a Final Hearing. There are already four people who have provided Affidavits in the Mother’s case, these being the Mother, Ms H, Ms W, one of the adult children, and Ms G, the coordinator of Court Z advocacy service. There are likely to be other witnesses called in the Mother’s case.
So far, there are six witnesses in the Father’s case, these being the Father, Ms A, Ms D, Mr J, Mr I, and Ms E.
A Family Report has been ordered and should be available before November.
On the Court’s conservative assessment this case will take at least five days to hear but that is not a length of time that can be accommodated in the Wollongong registry having regard to the size of the Family Law docket here. The Court is most conscious of the fact that transferring the matter to the Family Court may delay the Final Hearing of the case whereas if the Family Report were available before the listed Callover on 6 November 2020 there is a chance that the Court could hear this case in the first quarter of 2021.
Quite apart from the fact that as indicated above the Wollongong registry does not have the capacity to accommodate cases that will take at least five days of hearing time, but there are potential benefits of postponing a Final Hearing. For example, Y and X would benefit enormously from spending time with their father on a regular basis, even at a supervised contact centre. There are multiple outstanding criminal and apprehended violence proceedings occurring relating to the adults in this case that might be determined to the benefit of this case before the Hearing. On balance, the Court concludes that this matter does need to be transferred to the Family Court.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 11 September 2020
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