Danell and Saller (No.2)
[2015] FamCA 1072
•3 December 2015
FAMILY COURT OF AUSTRALIA
| DANELL & SALLER (NO.2) | [2015] FamCA 1072 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother seeks that the father’s supervised time with the children be suspended and that she have sole parental responsibility for the children – Where the application is opposed by the father and the ICL – Where the ICL proposes the father’s time with the children be reduced and the father’s activities with the children be agreed to in advance – Where the supervision service has recently suspended the father’s time for four contact periods – Whether the father poses a risk to the children – Whether the mother’s anxiety, from her relationship with the father, has been aggravated by recent events – Whether the mother’s psychological health poses a risk to the children – Where a suspension would result in the children having no time with the father – Where the supervision service continues to be willing to supervise the father’s time – Where the Court finds there is not sufficient evidence to warrant a suspension of the father’s time in circumstances where there are sufficient safeguards to militate risk – Where the Court finds insufficient evidence as to the nature and extent of the mother’s anxiety and its impact on her parenting – Orders made reducing the father’s time with the children and varying changeover arrangements – Orders made for the parents and supervision service to agree as to what activities the father participates in with the children – Ancillary orders made as to the provision of information. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA |
| Banks & Banks (2015) FLC 93-637 |
| APPLICANT: | Ms Danell |
| RESPONDENT: | Mr Saller |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| FILE NUMBER: | SYC | 575 | of | 2015 |
| DATE DELIVERED: | 3 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 9 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawson |
| SOLICITOR FOR THE APPLICANT: | Gordon & Barry Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Clinch Long Letherbarrow |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central |
Orders
Order 2 of the Orders made on 25 February 2015 is varied to provide that the time the father spends with the children is to be as follows:
The children are to spend supervised time with the father on each Wednesday and Friday for up to three (3) hours commencing at 4.30 p.m., and on each Sunday for four (4) hours commencing at 11.00 a.m.
The activities the children participate in with the father when they are spending time with him shall be as agreed between the parents and the supervisor and, in the absence of agreement, as agreed between the supervisor and the Independent Children’s Lawyer.
Orders 4, 5, 6 and 7 made on 25 February 2015 are discharged and replaced with the following:
That changeover be effected by:
a.the supervisor (in the absence of the father) collecting the children from the mother’s residence fifteen (15) minutes prior to the commencement of the father’s time with the children and delivering the children to a place agreed between the father and supervisor; and
b.the supervisor (in the absence of the father) returning the children to the mother’s residence fifteen (15) minutes after the conclusion of the father’s time with the children.
Except in the case of emergency, the mother is to provide seven (7) days written notice to the father of any appointment for the children with a medical practitioner, psychologist or counsellor.
Within seven (7) days of the date of these Orders, the mother is to disclose to the father and the Independent Children’s Lawyer details of all appointments with medical practitioners, psychologists and/or counsellors attended by the children from 24 January 2015 to date, including the name of the practitioner, the date of the appointment and any relevant diagnosis or treatment provided by that practitioner.
Within seven (7) days of the date of these Orders, each party is to disclose to the other details of any psychologist and/or counsellor attended upon by them during the period from 24 January 2015 to date.
To avoid doubt, in all other respects the Orders made on 25 February 2015 and 22 May 2015 remain in force.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dannell & Saller (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 575 of 2015
| Ms Danell |
Applicant
And
| Mr Saller |
Respondent
REASONS FOR JUDGMENT
Background
The substantive application in this matter is listed for final hearing in respect of parenting and property matters for five days commencing on 23 May 2016.
This matter concerns an interim application filed by the mother on 16 October 2015 seeking to suspend the time that the children, B born in 2007, and C born in 2010, (“the children”) spend with the father.
Interim parenting orders were initially made by Le Poer Trench J on 25 February 2015 and provided for the children to spend supervised time with the father each Wednesday and Friday for up to three hours, commencing at 4:30 pm, and on each Saturday and Sunday for four hours, commencing at 11.00 am (hereafter referred to as “the contact visits”). The orders were subsequently varied by his Honour following an application by the father to spend unsupervised overnight time with the children.
The mother seeks to suspend the time the children spend with the father as result of a number of incidents that have occurred during the contact visits. A concern has also been raised in respect to a changeover where it was alleged that the father failed to comply with agreed protocols to maintain separation between the parties.
As a result of the events that have occurred, the mother alleges that the children are at risk in the father's care. Further, the mother alleges that, as result of the mother's experiences during the course of her relationship with the father, she suffers ongoing anxiety. In that context, the mother says that her level of anxiety has been elevated as a result of the incidents that have occurred during the course of the contact visits. This, she alleges, has impacted upon her parenting ability which, it was submitted, presents a risk to the children.
The mother’s application was opposed by the father. The Independent Children's Lawyer (“the ICL”) proposed a small reduction in time that the children spend with the father. The ICL argued that a reduction in the children’s time with the father is appropriate in order to ease a degree of pressure that is currently placed upon the children, the parties and the staff of Supervised Contact Services (hereafter referred to as “J Org”), which is a service currently providing supervision of the father’s time with the children.
The Court has found merit in the submissions of the ICL and the orders that have been made are substantially in accordance with those which were proposed by the ICL.
Existing orders
All parties have applied to vary the existing orders made by Le Poer Trench J on 22 May 2015. Those orders are as follows:
1. The Orders made 25 February 2015, as hereunder set out, are to continue subject to the extensions and alterations as are provided for later in these Orders:
1. The children [B] born … 2007 and [C], born … 2010 live with the mother at all times otherwise than when they are with the father pursuant to the orders made today.
2. The children are to spend supervised time the father each Wednesday and Friday for up to three hours commencing at 4.30 p.m., and on each Saturday and Sunday for four hours commencing at 11.00 a.m.
3. On each occasion of Wednesday and Friday time the father is to provide the children with their evening meal. On each occasion that the children spend time with the father on a weekend, the father is to provide their lunch meal.
4.The changeover of care from the mother to the father is to be as follows:
a. The mother is to deliver the children to the supervisor at the McDonald’s family restaurant at [Suburb D] (“the changeover venue”)at the time the children are due to commence time with the father. The father is not to approach the changeover venue or be within a 1 kilometre radius of that place until 15 minutes after the time appointed for the commencement of his time with the children and having first complied with Order 6 on any scheduled occasion pursuant to these orders.
5.The changeover of care from the mother to the father is to be as follows:
a. At the conclusion of the father’s time with the children he is to ensure their return to the changeover venue by the appointed time for the conclusion of his time and he is to depart from that place before the conclusion time, and is to be no closer than 1 kilometre from the changeover venue by the time the changeover to the mother is due.
6. In any event the father is not to attend the changeover point for the commencement of his time with the children until:
a. He has received a text message from the supervisor advising that the children have been delivered, and
b. 15 minutes have elapsed after receiving such a text message.
7. At the conclusion of the father’s time with the children, the mother is not to approach the changeover venue until:
a. She has received a text message from the supervisor advising that the children have been delivered, the father has left the venue, and
b. A period of 15 minutes has elapsed after receiving the text message from the supervisor.
8. In the event of the father refusing or failing to comply with any request made by the supervisor of him during the period of supervised time with the children, the supervisor is to notify the mother of such failure and as and from such notification the orders providing for the children to spend time with the father will stand suspended.
9. Pursuant to section 68P of the Family Law Act, it is noted that section applies to these orders in that they are in part contrary to the provisions of a Family Violence Order made 5 February 2015 of [E Town].
10. The court notes that the orders made for the children to spend time with the father in the manner set out in these orders are an interim measure having regard to what is considered to be in the children’s best interests at the time of making the orders.
11. The father is permitted to spend the time allocated to him with the children pursuant to these orders at any place in the F Town area which is approved by the supervisor, including at the home in which he resides.
12. Prior to the jointly agreed supervisor, [Ms G], of [H Street, Suburb I] commencing her role as a supervisor of the father’s time with the children, she is to be supplied with 2 copies of these orders, one of which she is to sign to acknowledge receipt and knowledge of the orders and return same to the father’s solicitor, who is to provide a copy of same to the mother’s solicitor.
13. In the event of [Ms G] not being available to act as supervisor of the father’s time with the children pursuant to these orders, then a supervisor supplied by [J Org] or any other supervisor agreed to in writing by the parents shall supervise the father’s time with the children.
2. Order 2 made 25 February 2015 is varied to provide that the time for the father to spend with the children each Wednesday and Friday is to commence at 4.00 pm and conclude at 7.00 pm. The time the children spend with the father on each Saturday and Sunday is to commence at 10.00 am and conclude at 4.00 pm.
3. In the event that the father can provide supervisors acceptable to the Independent Children's Lawyer and the mother (or the Court in the case of a dispute) who can supervise his time with the children for overnight time then Order 2 of 25 February 2015, together with the amendments to that Order contained herein, shall be suspended (subject to the later provisions herein contained) and the children shall spend the following times with the father:
(i) In week 1 from 4.00 pm on Monday until the commencement of school/pre-school on Tuesday; and
(ii) In week 2 from 4.00 pm on Friday until the Sunday morning at 10.00 am.
4. For the purpose of Order 3 hereof week 1 will commence on the first occasion the father is able to exercise overnight supervised time with the children on a Monday during the school term. If the first time the father can exercise overnight supervised time with the children is a Friday then the cycle will commence with week 2 as and from that time.
5. The supervised time the father is to spend with the children pursuant to Order 3 (ii) hereof is to increase so that it concludes at the commencement of school/pre-school on the following Monday upon the father having exercised the time provided for in Order 3(ii) on three occasions within a period of 12 weeks.
THE COURT NOTES:
6. The purpose of allowing for the exercise of the father’s time pursuant to Order 3(ii) on three occasions over a period of 12 weeks is to allow for the contingency that the father may not be able to arrange supervision consistently for weekend periods.
7. The Court intends by these Orders that the children spend frequent time with the father. To that end, if the father is able to exercise overnight time with the children on an alternate weekend basis as provided for in these Orders, then the children will have alternate weekends in the mother’s care. If the father is unable to exercise overnight weekend time with the children then they are to have time during the day with the father on weekends as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof. Likewise, if the father is unable to arrange supervision for overnight time on Monday nights, then the Orders are to operate as provided for in Order 2 of 25 February 2015 as modified by Order 2 hereof.
8. The father is not to physically chastise the children nor leave them unsupervised at any time.
9. The father is not to chastise or strike the family dog.
10. The father is not to yell at the children or in their presence.
11. The father is not to allow the children to watch any visual presentation which does not have a “G” rating.
12. The father is not to kiss the children on the mouth.
13. Neither party is to change the children’s places of education unless agreed to in writing or further order of the Court.
14. The father is not to consume alcohol to excess or to consume or administer any non-prescribed medication/drug to himself at any time when the children are in his care or within a period of 12 hours prior to the children coming into his care.
15. The mother is not to consume alcohol to excess at any time when the children are in her care or within a period of 12 hours prior to the children coming into her care.
16. The mother is not to interfere with the father’s occupancy of the property at [K Street, Suburb L] in the State of NSW unless he agrees in writing or there is a further order of the Court.
17. The interim financial/property orders sought by each of the parties, including the issue of occupation of the property at [K Street, Suburb L] are to be listed for hearing in the duty list at 9.30 a.m. on 17 August 2015.
18. The parenting proceeding herein is expedited.
19. Each party has liberty to restore the matter to the list on seven days’ notice.
20. The mother may take the children to Melbourne for one week during the July school holidays.
21. Changeover of children, except where it is specified to take place at school, is hereafter to take place at [Suburb M] McDonalds.
The Evidence
In support of her Application in a Case filed 16 October 2015, the mother relied on her affidavits filed respectively on 25 February 2015, 29 April 2015 and 16 October 2015. She also sought to rely upon the affidavits of Ms Z filed 5 November 2015, Ms AA filed 5 November 2015, Ms BB filed 5 November 2015 and Ms CC filed 30 April 2015.
In addition, the mother’s counsel tendered into evidence the following documents:
·letter from Gordon and Barry Lawyers to DD dated 29 September 2015;
·letter from DD to Gordon and Barry Lawyers dated 15 October 2015 and enclosures;
·letter from Gordon and Barry Lawyers to Ms EE, W Region Area Health Service, dated 25 September 2015; and
·notes and records of W Region Area Health Service.
The father relied upon his affidavits filed respectively on 24 February 2015, 1 May 2015 and 27 October 2015 as well as the Single Expert Report of Dr R dated 30 April 2015 (hereafter “the Single Expert Report”). In addition, counsel for the father tendered the following documents:
·email of Ms FF of J Org dated 27 October 2015; and
·COPS Event Summary produced by NSW Police pursuant to the mother’s subpoena filed 8 October 2015.
The ICL tendered into evidence an email from J Org to the ICL dated 9 November 2015.
Approach in interim parenting matters
The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for parenting orders on an interim basis. At 80,903 - 80,904, under the subheading "How should interim proceedings be conducted?", the Full Court states:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
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.
Agreed or non-contentious facts
The focus of these proceedings has primarily been on events that have occurred since the orders and judgment of Le Poer Trench J, which was delivered on 22 May 2015.[1] Drawing upon a joint chronology helpfully agreed to between the parties, together with evidence tendered in the proceedings, the following facts are relevant to this interim application:
[1] Saller & Danell [2015] FamCA 391.
·The father was born in 1963. The mother was born in 1971.
·The parties commenced cohabitation in approximately 2005 and separated on or about 24 January 2015. The father has remained living in the former family home and the mother lives with the two children in rented accommodation.
·The children did not see the father in the period following separation on 24 January 2015 until 13 February 2015. The children first spent supervised time with the father, supervised by J Org, on 13 February 2015.
·On 27 February 2015 the husband's friend, Ms G, commenced to supervise some of the children's visits with the father and that continued until 22 April 2015.
·The children's time with the father was otherwise supervised by J Org on 7 March 2015, 21 March 2015, 4 April 2015 and in the period from 25 April 2015 to date.
·On 19 March 2015 a Final Apprehended Domestic Violence Order (“ADVO”) was taken out against the husband by the NSW Police. The mother and the children were listed as protected persons on the ADVO.
·On 23 May 2015 J Org contact visit notes report that C has food on her fingers and that the father cleans the food off with his mouth, using a napkin to dry her fingers.[2]
[2] The father’s response is in his affidavit filed 27 October 2015 at paragraph 32(h).
·On 26 May 2015 J Org contact visit notes report that the father shows the contact worker naked photographs of the mother.[3]
[3] The father’s response is in his affidavit filed 27 October 2015 at paragraph 32(i).
·On 31 May 2015 J Org contact visit notes report that the father asks C: “do you kiss Mummy on the lips?”[4]
[4] Ibid at paragraph 32(k).
·In June 2015 the mother attends F Town Police station and, for a second time, alleges that the father has breached the ADVO. No police action is taken in respect to this report.
·On 2 June 2015 J Org contact visit notes report that the father pulled the legs of C’s doll (in response to C accidently hitting him in the mouth with the doll and after examining his lip in the bathroom) distressing B and C. B apologises to the father for her reaction.[5]
[5] Ibid at paragraph 32(1).
·On 6 June 2015 J Org contact visit notes report that the father says in the presence of B: “she [the mother] is dumb.” The notes also report that the father asks C: “did you have booby for breakfast?”[6]
[6] Ibid at paragraph 32(m).
·On 7 June 2015 J Org contact visit notes report that the father asks C again whether she “had booby” that morning.[7]
[7] Ibid at paragraph 32(n).
·On 13 June 2015 J Org contact visit notes report that the father asks B whether she would like the father or the mother to take her to a party the following day.[8]
[8] Ibid at paragraph 32(p).
·On 24 July 2015 J Org contact visit notes report that the father tells the children he is not allowed to kiss them on the lips.[9]
[9] Ibid at paragraph 32(aa).
·On 25 July 2015 J Org contact visit notes report that the father asks the children who they thought was the last girl the father had kissed. [10]
[10] Ibid at paragraph 32(bb).
·On 28 July 2015 J Org contact visit notes report the father hugging and kissing C and that he says to C: “You are my baby, the love of my life.”[11]
[11] Ibid at paragraph 32(dd).
·On 1 August 2015 J Org contact visit notes report that the father says to the children: “I’d prefer if you were staying with me”. He asks: “Would you prefer that?” and B replies: “Yes”. Both children ask for back scratches.[12]
[12] Ibid at paragraph 32(ff).
·On 2 August 2015 J Org contact visit notes report that the father says to the children: “One day Daddy will be tucking you into bed and saying sleep tight Princess.”[13]
[13] Ibid at paragraph 32(gg).
·On 4 August 2015 J Org contact visit notes report that B lay on the floor on her tummy and asks the father to smack her on the bottom. C gives father back scratches and he replies: “I could pay you money for these scratches.” The father had tears in his eyes at the end of the visit.[14]
[14] Ibid at paragraph 32(hh).
·On 8 September 2015 J Org contact visit notes report that the father discusses anorexia and bulimia with B, aged 7.[15]
[15] Ibid at paragraph 32(vv).
·On 10 September 2015 the father and J Org enter into an “Amended Services Agreement” regarding the conditions attached to the children spending time with the father under the supervision of J Org. Those conditions are set out in Annexure “DS2” to the father's affidavit filed 27 October 2015.
·On 22 September 2015 J Org contact visit notes report that the father says to C: “I love your boobies”.[16]
[16] Ibid at paragraph 32(zz).
·On 27 September 2015 J Org contact visit notes report that the father drives to contact along GG Street despite agreeing not to do so.[17]
[17] Ibid at paragraph 34.
·On 28 September 2015 the father’s supervised time with children is suspended by J Org for two contact periods (29 September 2015 and 2 October 2015).
·On 29 September 2015 the solicitors for the father write to J Org confirming their client’s agreement with a variation to the changeover arrangements with the J Org supervisor collecting the children from the mother's residence and taking the children to and from McDonald’s at Suburb M.[18]
[18] Ibid at paragraph 36 and Annexure “DS3”.
·On 30 September 2015 the mother attends F Town Police Station for a third time and alleges that the father has breached the ADVO. The mother provides police with five pages of notes. The police find insufficient evidence of the mother’s allegations of stalking. The police notes report that the mother became “emotional, aggressive and unreasonable” and attempts to change her evidence and add to her statement.
·On 6 October 2015 Constable HH of F Town Police Station reports that the father “appeared honest”, and showed concern for the mother and “harboured no ill will towards the mother”. The notes record no police action to be taken against the father.
·On 11 October 2015 J Org contact visit notes report that the father changes C away from the supervisor and contrary to the conditions of the supervised visit.[19] The notes also report that the father says to C: “You have not got boobies. You’ve got nipples”[20]and asks C if she wishes to kiss the lips on his swimming trunks.[21]
[19] Ibid at paragraph 38.
[20] Ibid at paragraph 39.
[21] Ibid at paragraph 40.
·On 13 October 2015 the father’s supervised visit with the children is suspended a second time by J Org for a further two contact periods (13 October 2015 and 16 October 2015). [22]
[22] The mother’s affidavit filed 16 October 2015 at Annexure “HJD4”.
·On 27 October 2015 J Org send an email to the parties’ solicitors saying:
I just wanted to be clear that [J Org] are in a position to continue to supervise [Mr Saller’s] contact visits, however they may look moving forward.
[J Org] would have to be satisfied that [Mr Saller] understands the rules and regulations put into place to protect all parties.
There is no doubt that the children do enjoy time with their father, and he makes an effort to plan their visits to maximise time to ensure the children have a good time.[23]
[23] Exhibit F10.
·On 9 November 2015 J Org sent an email to the ICL wherein they advised:
…[J Org] would be happy to continue on with the supervision of the [Saller] children.
At this stage moving forward if supervised contacts are going to continue, we can see how perhaps the hours could be reduced at this stage to cater for a few difficulties that we feel ought to be ironed out before we move forward.
The farewells are difficult for the girls and can often lead to upset.
The NF [natural father] needs to manage the farewells and ensure they are not quite so prolonged and emotional.
The NF needs to ensure that no quips about the court orders or the rules of the visit are said in the hearing of the children. Eg, PG movies, kissing on the lips,
…
The amount of contact often leaves a girls feeling tired and irritable.
…
The NF would be required to show that he respected the process moving forward and understands the supervisor's role is to ensure the girls are subject to no negative, feeling or comments about his current situation.
The worker would still like to collect the children from their home and return them at the end as this is also assisting in returning the children in a more calm structured changeover.[24]
[24] Exhibit ICL12.
Clinical notes referring to the mother’s anxiety
The W Region Area Health Service and a counselling service, DD, both produced clinical notes in respect to the mother’s attendance upon them for psychological counselling. The solicitors for the father objected to the tender of those notes to the extent that they reflected that the mother’s reporting of events, which are the subject of dispute in the proceedings. For the purpose of these interim proceedings, those notes will, however, be considered in the context of determining the extent to which they record the mother reporting her anxiety.
Notes produced by the Violence, Abuse and Neglect Counsellor/Psychologist, W Region Area Heath Service.
The notes produced by the W Region Area Health Service relevantly include the following passages:
6 March 2015
Recognises that throughout the relationship she had been fearful of him.
Fearful for the safety of the girls if he was to be granted unsupervised access.
18 March 2015
Identifies being fearful for the children's safety if he were given unsupervised access.
22 May 2015
Distressed when she disclosed that a friend told her that [the father] has been showing people, including the friend and her husband, naked photos of [the mother] when she was pregnant… again feeling violated.
27 May 2015
Distressed when she reported that the worker told her that [the father] showed naked photos of [the mother] to her and that he has now placed naked photos of her on the walls of the house.
Plan:
Discuss safety issue further.
Focus on strategies to manage stress, anxiety.
1 July 2015
Identifies ongoing anxiety when considers there may be a time when the girls’ contact with [the father] is unsupervised.
Plan/ongoing:
Continue to focus on further developing open communication with children.
Improving self-care, stress management strategies.
Parenting issues that arise.
27 July 2015
Plan to continue to explore changes she wants for herself and her girls, parenting issues, improving self-care managing ongoing stress related to contact and Court.
7 September 2015
Encouraging ongoing focus on self-care to reduce stress.
Notes produced by DD Psychological Services (DD)
Notes produced by DD Psychological Services include an entry for 24 September 2015 which is as follows:
24 September 2015
[the mother] was emotional throughout session. Expressing intense pain (crying, holding face, rocking) when recalling DV experiences and anxieties about the future.
Orders Sought
In the mother’s Case Outline filed 5 November 2015, the mother proposed the following orders:
1.Pending further Order, all previous parenting Orders requiring the children, [B Saller] and [C Saller], to spend time with the Father be suspended.
2.Pending the making of Order 1, there be a stay of the following Orders:
(a)Orders 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13 of the Orders dated 25 February 2015;
(b)Orders 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.11, 1.12, 1.13, 2, 3, 4
and 5 of the Orders dated 22 May 2015.
3.Pending further Order of the Court, the Mother shall have sole parental responsibility for the Children.
4.Pending further Order of this Court, there shall be no Order as to time spent between the Children and the Father.
In his Case Outline filed 5 November 2015, the father sought the following orders:
1.The mother and father have equal parental responsibility for [B Saller] born … 2007 and [C Saller] born … 2010 (‘the children’).
2.That the mother be restrained from causing the children to attend upon any medical practitioner, psychologist or counsellor without the father’s written consent.
3.That, except in the case of emergency, the mother provide 7 days written notice to the father of any appointment for the children with a medical practitioner, psychologist or counsellor.
4.That within 7 days of the date of Order the mother disclose to the father and the Independent Children’s Lawyer:
a.details of the Counsellor and Psychologist referred to in paragraph 43 of her Affidavit filed 16 October 2015 herein along with any other Medical Practitioner, Psychologist and/or Counsellor she has attended during the period 24 January 2015 to date; and
b.details of all appointments with Medical Practitioners, Psychologists and/or Counsellors attended by the children from 24 January 2015 to date including the name of the practitioner, the date of the appointment and any relevant diagnosis or treatment provided by that practitioner.
5.That Order 2 made on 22 May 2015 is discharged and replaced with the following:
“Order 2 made 25 February 2015 is varied to provide that the time for the father to spend with the children is to be as follows:
a.Each Tuesday and Friday from 4.00pm to 7.00pm; and
b.Each Saturday and Sunday from 10.00am to 4.00pm.”
6.Orders 4, 5, 6 and 7 made on 25 February 2015 be discharged and replaced with the following:
“That changeover be effected by:
a.the supervisor (in the absence of the father) collecting the children from the mother’s residence 15 minutes prior to the commencement of the father’s time with the children and delivering the children to a place agreed between the father and supervisor; and
b.the supervisor (in the absence of the father) returning the children to the mother’s residence 15 minutes after the conclusion of the father’s time with the children.”
7.To avoid confusion, in all other respects the Orders made on 25 February 2015 and 22 May 2015 remain in force.
8.That the mother’s Application in a Case filed on 16 October 2015 be dismissed.
9.That the mother pay the father’s costs of and incidental to this Application.
The ICL opposed the mother’s application but proposed that the orders made by Le Poer Trench J on 22 May 2015 be varied, such that the father’s time with the children be slightly reduced so that he no longer spends time with the children on Saturdays.
Issues
The issues in this matter concern the following:
·Should the interim orders made by Le Poer Trench J on 22 May 2015 be varied to suspend or reduce the time that the father spends with the children?
·Should the mother be required to seek the consent of the father before arranging medical treatment and/or counselling for the children?
·Should the mother be required to advise the father of any medical treatment and/or counselling received by the children?
·Should each party be required to advise the other of psychological and/or counselling services that they have each received or are receiving?
Submissions on the behalf of the mother
The mother’s argument that the children are at risk of physical or psychological harm as a result of the current arrangements for the children to spend time with the father was essentially two pronged:
·First, it was argued that, as result of trauma that she has suffered during the course of her relationship with the father, the mother suffers anxiety which has been aggravated by the events that have occurred during the contact visits between the children and the father. This anxiety, it was argued, has impacted and potentially will impact upon the mother’s parenting capacity which in turn presents a risk to the children.
·Second, it was argued that the father’s conduct during the course of the contact visits with the children demonstrates inappropriately sexualised behaviour and lack of restraint which, in itself, poses a risk to the children.
In respect to the issue of the mother’s anxiety, counsel for the mother argued that the mother’s attitude to the children spending time with the father needs to be seen through the prism of her relationship with the father. That relationship, it was submitted, was characterised by significant family violence, non-consensual sex, control, intimidation and belittling behaviour.
Counsel for the mother relied upon what was submitted to be objective evidence of the father’s abuse of the mother. This evidence included an SMS message sent by the father to the mother’s sister, Ms CC, on 4 February 2015, which read:
[Ms Danell] will understand that I have been calling her crazy for so long. But that is incorrect, as it is I who has been crazy.[25]
[25] The affidavit of Ms CC filed 30 April 2015 at paragraph 13.
It was submitted that the acknowledgment, contained in the SMS message, confirms the mother’s allegation that during the course of the relationship the father frequently referred to her as “psycho”.[26]
[26] The mother’s affidavit filed 25 February 2015 at paragraph 73.
Reference was also made to a further SMS sent by the father on 14 February 2015 to Ms CC, which stated:
I have been reading up on domestic violence and it has made me realise that I have crossed the line – and been abusive to [Ms Danell], made her scared of me and made her feel that she cannot be herself.[27]
[27] The affidavit of Ms CC filed 30 April 2015 at paragraph 16.
In summary on this point, counsel for the mother submitted that the mother’s anxiety is a by-product of the way she has been treated during the course of her relationship with the father. That anxiety, it was argued, has now been exacerbated by the events that have occurred during the father’s contact visits with the children.
It was submitted that the clinical notes produced by the W Region Area Health Service and DD provide objective evidence in support of the existence of the mother’s anxiety.
In respect to the second limb of the mother’s argument, counsel for the mother submitted that the father’s behaviour during the supervised visits, as reported in the contact notes, showed objective evidence of inappropriately sexualised conduct and a lack of appropriate restraint on the behalf of the father.
Counsel for the mother submitted that many of the examples set out in the above chronology “defy common sense” and are almost designed to be “mischievous”. It was submitted that, while the strict conditions that had been placed on the father’s time with the children may have caused a level of frustration for the father, common sense would suggest that a reasonable person in such a situation would adjust their conduct to the context of the requirements that are in place. Counsel for the mother submitted that, as result of the father failing to comply with those conditions, the mother has a real concern as to whether the father will comply with any court orders.
In the context of the father failing to comply with the conditions of supervision, it was submitted that it is necessary to examine how the father reacted to the cautions he received about his conduct. In that respect reference was made to paragraphs 34 and 35 of the father’s affidavit filed 27 October 2015 where the father said:
34. On Sunday, 27 September 2015 I was driving to contact at approximately 9.43 am. I was driving to the changeover point via [GG Street]. Although I acknowledge I entered the agreement with J Org not to drive to the changeover point on [GG Street], however I just wasn’t thinking at the time. I saw the Mother’s vehicle pass mine in the opposite direction.
35. I called [Ms FF] soon afterwards and advised her that I have accidently driven on [GG Street] and just passed the Mother’s car. In the conversation with [Ms FF], she stated that contact may be cancelled. I concede I responded by saying “Fuck off”. This wasn’t meant in an offensive manner to [Ms FF], but as an expression of how exacerbated I was that a mistake of using the wrong road to drive to the changeover point could cause my time with the children to be suspended.
Counsel for the mother argued that the father’s affidavit material was “replete with concessions and admissions that he did the wrong thing”. However, the sincerity of those concessions and admissions was questioned in circumstances were the father continued to breach the conditions of the supervision. Further, it was submitted that it is necessary to examine how the father responds to being criticised in respect to his behaviour. In that respect reference was made to the father sending thirty-three text messages and making three telephone calls to the J Org supervisor, on 27 September 2015, after he was advised that his time with the children had been cancelled as a result of his response to the supervisor.[28]
[28] The mother’s affidavit filed 16 October 2015 at Annexure “HJD1”.
It was submitted by counsel for the mother that, in order to make the contact visits viable and preserve the prospect of the father having a relationship with the children, it is necessary for the Court to suspend the existing orders. It was further submitted that suspending the current orders would provide the Court and the parties, with an opportunity to assess the father’s conduct and to obtain proper evidence regarding the father’s mental health. It was also submitted that there is evidence of stress on the children by certain events that have occurred during the visits.
Submissions on the behalf of the father
Counsel for the father submitted that, while the mother argued that her anxiety needed to be seen in the prism of life experience, it was equally the case that some of the events that the mother complained of appeared to be “quite silly and trivial”. It was further submitted that there was no evidence to challenge Dr R’s assessment, set out in her Single Expert Report, that the father is a devoted father.
It was submitted that while the father has engaged in some inappropriate behaviour, where that had occurred, the father had acknowledged the behaviour as being inappropriate.
It was further acknowledged that there had, at times, been instances where the father had demonstrated some degree of lack of control. Those instances, it was argued, reflected the father’s frustration with the rules and conditions that apply to the supervision of his time with the children.
Counsel for the father acknowledged that the other incidents in respect to which the mother expressed concern might be seen as being “slightly quirky.” However, it was submitted that those instances, which included licking chocolate off a child’s face and fingers, were to be regarded as more of a sign of parental affection rather than anything more sinister. Moreover it was argued that the behaviour was consistent with that engaged in by both parents when the family was intact.
It was further acknowledged that some incidents had occurred which were in the category of technical breaches of the rules and conditions of the supervision provided by J Org. These breaches, it was argued, were “momentary technical breaches” and the Court should be focused on what is in the best interests of the children rather than mere technicalities.
Counsel for the father argued that the mother’s complaints regarding the father’s conduct were being overstated. As evidence of that, counsel for the father referred to the report of the F Town Police in respect to the mother’s complaint of 30 September 2015. Relevant extracts from that report are as follows:
The victim attended the [F Town] police station on Wednesday 30 September 2015. She wanted to report that she was being constantly stalked and harassed by her ex-partner. … On this occasion she presented a five page typed document which she stated was a contemporaneous record she had kept to document the incidents.…
The main crux of the stalking complaint centres around two claims: that the victim has often seen [the father’s] vehicle in her street at a time when she believes it shouldn't be there; and the [father] shows up at the McDonald's in [Suburb M] where the custody changeover takes place, outside the 15 minute window the Court Orders apparently specify. The victim feels this is intimidating.
…In regards to the typed document presented by the victim, at the conclusion of reading it Police stated that there was insufficient evidence to to establish stalking based on the information contained within the document. Upon being told this, the victim's demeanour changed. She became emotional, aggressive and unreasonable. She demanded to know exactly why there was insufficient evidence and what would be sufficient evidence to proceed. Police took her through some of the statements made in the evidentiary document she had prepared … The victim immediately amended her version, repeating back verbatim what Police had just explained to her. She now maintained the new information, which she had just been informed would constitute the offence of stalking, was in fact the true version (and not the contemporaneous notes she had made shortly after the incident). She demanded to make another statement in which this version was to be presented.[29]
[29] Exhibit F11.
It was submitted by counsel for the father that, if the mother’s application was successful, it would result in the father effectively having no relationship with the children in circumstances where he has had a close and loving relationship with the children and has been a very important part of their lives.
It was submitted that J Org’s actions in suspending the father’s time were as a result of:
·on one occasion, an example of the father being in the wrong street at the wrong time; and
·on another occasion, in circumstances where the child had followed the father out of the gate of a children’s party.
It was submitted that the children have spent hours in supervised contact with the father and there is no evidence of the father being any risk to the children. It was argued that there is, however, a risk to the children if their relationship with the father is detrimentally affected by depriving them of the opportunity of spending time with him.
In respect to the J Org contact notes generally, it was submitted that the mother’s complaints had been selectively extracted. It was noted that many of the reports conclude with statements from the J Org supervisor to the effect that, while there have been some technical breaches, things were generally working well.
Finally, counsel for the father referred to the emails from J Org to the parties lawyers, dated 27 October 2015, confirming that J Org is prepared to continue supervising the father’s time with the children. That willingness, it was submitted, would not exist if J Org had any genuine concerns about the father presenting a risk to the children.
Counsel for the father opposed the mother being given sole parental responsibility.
The father also sought orders requiring the mother to provide him with information regarding the children’s medical treatment and preventing the children being taken to a dentist, doctor or psychologists without the father’s consent.
Submissions by the Independent Children’s Lawyer
The ICL opposed the mother’s application to suspend the father’s time with the children. The ICL argued that the mother had not provided details of the risk that she alleges the children are subject to. In particular, the ICL questioned whether the alleged risk is sexual, physical, psychological or all of the above or, on the other hand, whether it is the mother’s attitude and capacity to cope with the father spending time with the children.
It was submitted by the ICL that, at this stage in the proceedings, there is simply no evidence available for the Court to find the existence of a risk, in respect to any of those categories.
While the ICL acknowledged that the nature and extent of the mother’s anxiety may be an issue to be determined at final hearing, she submitted there was no evidence presently before the Court regarding the extent of the mother’s anxiety and whether that anxiety impacts upon, or would potentially impact upon, the mother’s parenting capacity.
The ICL submitted that, in so far as the mother relied on extracts from the J Org contact notes, it is necessary to refer to those notes in their totality. For instance, in respect to the children’s time with the father on 22 September 2015, where the J Org notes reported that “the father commented to [C] to the effect that he ‘loved her boobies’”, the ICL submitted that the overall report concluded that the contact visit was “a really positive visit for the girls emotionally.”
Further, it was submitted that the mother’s complaints regarding the father’s inappropriate conduct more generally, needed to be tested through the process of cross examination at final hearing. It was submitted that, on the basis of the evidence available in the interim proceedings, it would be unsafe for the Court to conclude that the children spending time with the father presents an unacceptable risk to them.
The ICL stated that the weight of evidence is that the children enjoyed spending time with the father who has very much been a part of their lives. Other than for a period of approximately three weeks immediately after the parties separated in January 2015, the period from 13 October 2015 to date is the longest period of time the children have been away from their father. The ICL also argued that it is of note that the mother had consented to the children spending time with the father very shortly after the parties separated.
Reference was made to the Single Expert Report of Dr R which stated that the children have a close and loving relationship with the father. Dr R’s conclusion was, it was submitted, consistent with the email from J Org to the parties’ lawyers dated 27 October 2015, where it was stated: “There is no doubt that the children do enjoy time with their Father, and that he makes an effort to plan their visits to maximise time to ensure the children have a good time.”[30]
[30] Exhibit F19.
Reference was also made to the fact that J Org were prepared to continue supervising the children’s time with the father.
The ICL submitted, however, that it would be appropriate for the parties to agree with J Org as to the nature of the activities that the children engage in during the contact visits. In that respect the ICL referred to the email from J Org dated 9 November 2015.[31]
[31] Exhibit ICL12.
In terms of issues that have arisen between the parties, and in the context of the email from J Org dated 9 November 2015, the ICL submitted that it was appropriate to reduce the time the children spend with the father by removing the Saturday contact provided for in the current orders because there is evidence that the current arrangements are onerous for the parties, the J Org supervisor and the children.
In summary, it was submitted that, if supervised contact is to be sustainable, it needs to be changed to relieve some of the pressure that currently exists on all parties.
The ICL submitted that it would be inappropriate, in these interim proceedings, for the Court to apply the presumption of equal shared parental responsibility and noted, in that respect, that there are no pressing issues, such as schooling, that need to be decided in the next few months.
The Law
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in deciding whether to make a parenting order, the Court "must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in section 65AA.
Section 60CC sets out what has been described as a "legislative pathway" to determine what is in a child's best interests. In Banks & Banks,[32] the Full Court outlined a practical approach to applying the section 60CC considerations in the following terms:
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[32] (2015) FLC 93-637 at 80,116.
In Blinko & Blinko,[33] the Full Court discussed the appropriate approach in dealing with issues of risk including the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised the relevant authorities as follows:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:·If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
·If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
·Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley(1995) FLC 92-623.
[33] [2015] FamCAFC 146 at [83].
In Blinko (supra), the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk and in that respect said:
A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261.[34]
[34] Ibid at [27].
It is of significance that the Full Court found that the learned trial judge fell into “discretionary error” when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. In explaining that finding, the Full Court said:
Accordingly, where the Court makes no orders for time or communication because it is not persuaded that safeguarding conditions would sufficiently ameliorate the risk, again it should clearly explain the reasons for that conclusion. Looming large amongst the reasons for doing so, is because such orders will necessarily wholly prohibit the child, during their childhood and adolescence, from ever having any form of relationship with the non-resident parent, again, a potentially grave consequence. Such an outcome needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the non-resident parent, as indicated by the Objects and Principles of Part VII of the Act.[35]
[35] Ibid at [30].
Consideration
All parties in this matter agreed that the central issue to be determined in these interim proceedings is whether the time that the father spends with the children should be suspended, or in the alternative, reduced. The time the children currently spend with the father is supervised through J Org and all parties acknowledged that if contact visits are to continue, they should be supervised.
In addressing the question as to whether the father’s time with the children should be suspended or reduced, the Court has considered all the matters set out in section 60CC of the Act.
The most relevant considerations are the primary considerations which are set out in section 60CC(2). They are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The legislation recognises that these two primary considerations may, at times, be competing. Accordingly, section 60CC(2A) provides that in applying or balancing the two primary considerations “…the court is to give greater weight to the considerations set out in paragraph 2(b).”
Also of relevance in this matter are subsections 60CC(3)(j) and 60CC(3)(k) which provide:
·Section 60CC(3)(j) - requires the Court to consider whether there has been “any family violence involving the child or a member of the child’s family”; and
·Section 60CC(3)(k) - requires the Court to give consideration to a family violence order that “applies, or has applied, to the child[ren] or a member of the child[ren]’s family”.
Section 4AB relevantly provides:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Benefit of the children having a meaningful relationship with both of their parents
As noted, section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. The evidence is that the children have a close relationship with both their parents. This is referred to in Dr R’s Single Expert Report.[36] The children’s relationship with their father is referred to in the email from J Org to the parties’ legal representatives dated 27 October 2015, where it was stated: “There is no doubt that the children do enjoy time with their Father, and that he makes an effort to plan their visits to maximise time to ensure the children have a good time.” [37]
[36] at page 26.
[37] Exhibit 9.
Further, as noted earlier, the parties have only relatively recently separated in January of this year and the father has been an important part of the children’s lives. Unless justified by other considerations, the Court would not make an order that has the effect of severing the children’s relationship with the father, even on an interim basis.
Allegations of inappropriate conduct during contact visits
As noted section 60CC(2)(b) requires the Court to have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. All of the parties acknowledged that, in interim proceedings, the Court is unable to make findings of fact where those facts are in dispute between the parties. In that context the Court is unable to make a determination in respect to the mother’s allegations that the father has perpetrated acts of violence upon her, the children and the family pet.
The Court takes allegations of family violence seriously and this will be an important issue to consider at the final hearing in May 2016.
The existence of the ADVO in which the children are named as protected persons is also of relevance. The existence of that order is a significant factor which the Court has considered in confirming the need for ongoing supervision of the contact visits.
In terms of inappropriate conduct by the father during the contact visits, counsel for the father submitted that, where appropriate, the father has acknowledged that conduct to be inappropriate. Counsel for the father also submitted that, while elements of the father’s conduct might be considered “slightly quirky”, the conduct needs to be seen in the context of the actions of the parties towards their children when the parties’ relationship was intact.
In these interim proceedings it is not possible to make a determination as to whether the father’s conduct should be characterised as “slightly quirky” or, as submitted by counsel for the mother, conduct “that was ‘trying to push the envelope’” or conduct that ‘has sexual connotations’.” Again these will be matters to consider at the final hearing.
Nevertheless, based on the father’s admissions, even at this interim stage of the proceedings, the Court is concerned as to the father’s conduct which raises issues in respect to his self-control and the proportionality of his responses to criticism. In that respect the Court notes:
·the incident which occurred on 2 June 2015 where the father pulled the legs off C’s doll after his lip had been injured when C jumped on his back.[38]
·the incident which occurred on 27 September 2015 with the father telling the J Org supervisor, Ms FF, to “fuck off” after she advised him that the time the children were to spend with him on that day may be cancelled.[39]
·the fact that on 27 September 2015 the father sent 33 text messages and made three telephone calls to the J Org supervisor, Ms FF, after his time with the children was suspended for that day.[40]
[38] The father’s affidavit filed 27 October 2015 at paragraph 32(l).
[39] Ibid at paragraph 35.
[40] The mother’s affidavit filed 16 October 2015 at Annexure “HJD1”.
However, those concerns do not, in these interim proceedings, present the Court with sufficient evidence to warrant suspending the father’s time with the children in circumstances where the contact visits between the children and the father are appropriately supervised and subject to appropriate conditions.[41]
[41] The father affidavit filed 27 October 2015 at Annexure “DS2”.
The Court agrees with the ICL’s proposal that J Org confer with the parties in identifying appropriate activities for the children to participate in when they are spending time with the father in the period between now and the final hearing.
Taking a cautious approach in these interim proceedings, the Court is satisfied that there are sufficient safeguards in place to militate against any physical or psychological risk to the children associated with them spending time with the father. By way of summary, those safeguards include:
·that the contact visits are supervised by a professional organisation;
·there are appropriate rules that apply to the contact visits;
·J Org has demonstrated no hesitation in suspending the contact visits if those rules are breached;
·detailed reports are provided to the parties after each contact visit; and
·J Org will confer with the parents in respect to the activities that the children will participate in during the contact visits.
In that context it is of note that the clinical notes produced by the W Region Area Health Service report that on 6 March 2015 the mother advised the clinician that the mother was “fearful for the safety of the girls if [the father] was to be granted unsupervised access.” (Emphasis added). As noted, the contact visits will remain supervised.
The mother’s psychological well being
A further issue for consideration, in determining whether the children spending time with the father presents a physical or psychological risk to them, is to evaluate the mother’s contention that, as a result of the father’s conduct towards her, she is suffering from such anxiety that ongoing face to face contact between the father and the children presents such a risk to her psychological health that it will impact upon her parenting capacity. This, in turn, it was argued presents a potential risk to the children.
In respect to the psychological impact on the mother of the children spending time with the father, the Court has considered the contents of the clinical notes produced by the W Region Area Health Service as well as the notes produced by DD.[42] Those clinical notes contain a number of references to the mother suffering anxiety and the Court accepts that that is the case. However, there is no evidence before the Court, at this stage in the proceedings, as to the nature and extent of the mother’s anxiety or the extent to which it has impacted or potentially will impact, upon the mother’s parenting ability.
[42] Exhibits M8 and M9.
In summary, while there is clear evidence of the mother suffering anxiety, the Court is unable to determine, in these interim proceedings, whether the ongoing supervised contact visits present such a risk to the mother’s psychological health that it has or will impact upon her parenting capacity.
Additional considerations
In making any parenting order, as previously noted, the Court is required to have regard to the best interests of the children as the paramount consideration. In determining that issue, section 60CC(3)(m) provides that the Court can have regard to any other fact or circumstance that the Court thinks is relevant. In that context the Court notes:
·The father acknowledges that he experiences frustration as a result of the present rules and conditions which apply to the supervision of his time with the children. This includes, for instance, an event which occurred on 2 June 2015 where the father acknowledged that he overreacted when his lip had been accidentally hurt by the legs of a toy doll;[43]
·The mother suffers from anxiety as a result of the children spending time with the father;[44]
·The contact supervisor has reported that the father’s farewell at the conclusion of the children’s time with him can be “difficult for the girls and can often lead to upset”;[45] and
·“The amount of contact often leaves the girls very tired and irritable.”[46]
[43] The father’s affidavit filed 27 October 2015 at paragraph 32 (l). See also paragraph 32(k).
[44] Exhibits M8 and M9.
[45] Exhibit ICL12.
[46] Ibid.
In those circumstances the submission of the ICL to reduce the amount of time that the children currently spend with the father has merit. Accordingly, the current orders will be amended to remove the Saturday contact with the father. This will give each parent a full day of recreation with the children and will hopefully relieve at least some of the pressure on the father and the mother and, most significantly, relieve some of the stress and emotional strain that has been placed upon the children.
Parental Responsibility
Section 61DA relevantly provides:
(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. (Emphasis added)
In these interim proceedings, it is not possible to make a determination in respect to significant issues of fact. This includes in respect to serious allegations of family violence. Further, it is clear that the nature of the parties relationship is such that the Court cannot have confidence regarding their ability to consult with a view to making a genuine effort to come to joint decision about major long term issues in respect to the children. In that context, as noted by the ICL, it does not appear to be the case that the parties will be required to make any major long term decisions regarding the children in the immediate future.
In the circumstances, in accordance with section 61DA(3), the Court considers that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings. It is therefore unnecessary to consider whether the children should spend equal or substantial and significant time with each parent in accordance with section 65DAA. The orders, which are based on section 60CC considerations, do not provide for equal or substantial time to occur.
Ancillary Orders
As noted, the father has sought orders that include requiring the mother to obtain the consent of the father to the children attending medical/dentist/counselling appointments and to disclose to the father and the ICL details of those appointments.
The mother’s counsel advised the Court that the mother is obtaining assistance to manage the children’s behaviour, but the children are not currently attending a treating psychologist or therapist.
The Court is of the view that the relationship between the parties is such that it would be impracticable to require them to reach agreement before the children attend upon any medical practitioner, psychologist or counsellor. Nevertheless, the father is entitled to be notified of any such appointments and the Court will make orders in terms of Order 3 proposed by the father.
Similarly, the father is entitled to be provided with details of any medical treatment the children have received in respect to the period since the parties separated in January 2015. On that basis the Court will make orders in terms of Order 4(b) proposed by the father.
The psychological health of each of the parents is potentially a relevant issue for the Court to consider in determining what is in the best interest of the children. Accordingly the Court will order that both parties disclose to the other, and to the ICL, the details of any treating counsellor or psychologist they have attended upon during the period from 24 January 2015 to date.
Conclusion
In these proceedings the Court has focused on events that have occurred subsequent to the orders of Le Poer Trench J, which were made on 22 May 2015.
Some of the concerns raised by the mother that have given rise to this application give cause for further inquiry and ultimate determination at final hearing. However, the Court has not, in these interim proceedings, been presented with evidence that justifies suspending the supervised time that the children currently spend with their father.
The Court accepts that, in the circumstances outlined, it is in the bests interests of the children for the time they are currently spending with their father be reduced by eliminating the Saturday visits from the current arrangements.
The Court has had regard to the mother’s anxiety and recognises that it is a significant issue to be considered at final hearing. The Court is satisfied, however, that the current arrangements in place for supervised contact visits are such that the children will not be exposed to physical or psychological risk as a result of the time that they spend with their father.
In these interim proceedings there has been no expert evidence presented that indicates the mother’s anxiety has impacted upon her parenting capacity. The Court will give appropriate consideration to any such evidence, if and when it is available.
It is important that all parties recognise that section 60B(2) is expressed in terms of the right of children to have a relationship with both parents. Clearly, that right is subject to the overriding consideration of ensuring the children’s physical and psychological well-being. Provided that appropriate steps can be put in place to militate against any such risk, every reasonable endeavour should be made to facilitate the children exercising their right. The Court has adopted that approach in making the orders set out at the commencement of this judgment.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 3 December 2015.
Associate:
Date: 03.12.2015
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