DANNELL & SALLER

[2017] FamCA 408

FAMILY COURT OF AUSTRALIA

DANNELL & SALLER [2017] FamCA 408

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where both parties seek that the children live with them and spend supervised time with the other parent – Children currently living with mother – Allegations of family violence – Risk of psychological harm to child who witnessed physical altercation between parties – Children to live with mother and eldest child to initially spend supervised time with father – Children to spend further time with father as agreed after family therapy.

Family Law Act 1975 (Cth) ss 43(1)(c), 60B, 60CA, 60CC, 60CG, 61DA, 65AA, 65DAA
Evidence Act 1995 (Cth) s 57

Banks & Banks (2015) FLC 93-637
Blinko & Blinko [2015] FamCAFC 146
Cowling v Cowling (1998) FLC 92-801
Goode and Goode (2006) FLC 93-286
Keats & Keats [2016] FamCAFC 156
M v M (1988) 166 CLR 69
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Salah & Salah (2016) FLC 93-713
SS & AH [2010] FamCAFC 13

Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249

APPLICANT: Mr Dannell

RESPONDENT: Ms Saller

FILE NUMBER: SYC 5833 of 2015

DATE DELIVERED: 9 June  2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 8 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Tiyce & Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls Partners

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. The children, B born … 2009 (“B”) and C born … 2011 (“C”) (“the children”) are to live with the mother.

2. C is to spend time with the father as agreed between the parties, in consultation with Mr D.

3. B is to spend time with the father as agreed by the parties, in consultation with Mr D and, in the absence of agreement, B is to spend time with the father as follows:

   (a)Each week on Tuesday from 3:30pm until 5:30pm;

   (b)Each week on Thursday from 3:30pm until 5:30pm; and,

   (c)On Saturday, 10 June 2017 from 1:00pm until 5:00pm, and on each alternate Saturday thereafter from 1:00pm until 5:00pm.

4. Until Friday 30 June 2017, the father’s time with B pursuant to Order 3 above is to take place at the home of Ms E Saller or such other person as agreed by the mother.

5. Changeover of the children is to occur at the home of Ms E Saller as follows:

   a.     the mother is to deliver the children to Ms E Saller’s residence 15 minutes before the commencement of the father’s time; and,

   b.    the mother is to collect the children from Ms E Saller’s residence 15 minutes after the conclusion of the father’s time.

6. Pursuant to s 11F of the Family Law Act 1975 (Cth) the parties are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of this Registry.

7. The parties must attend all meetings fixed by the Family Consultant and ensure that the children attend all meetings as instructed by the Family Consultant.

8. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer and the Court.

9. The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

10. The failure of a party to attend any appointment with a Family Consultant or failure to comply with any instructions the Family Consultant gives to a party will result in the Family Consultant reporting the failure to the Court in which case the Court may make such orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.

11. Upon receiving the Children and Parents Issues Assessment, the parties and the Independent Children’s Lawyer are granted liberty to re-list the matter for the purposes of the Court considering further interim parenting orders provided that at least seven (7) days’ notice is given to the Court and to the other parties. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dannell & Saller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC5833 of 2015

Mr Dannell
Applicant

And

Ms Saller

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns competing applications for interim parenting orders arising from the breakdown of the parties’ relationship of approximately seven years. The parties remained living together for approximately 15 months after separation. The dispute concerns the parties’ two children, B born in 2009 (“B”) and C born in 2011 (“C”) (“the children”). Each parent seeks orders that the children live with them and spend supervised time with the other parent. The mother contends that, at this stage, only B should spend time with the father and that the time should be supervised by the mother’s sister.

2. Each party asserts that they have been the primary carer of the children and seeks to diminish the role that the other parent has played in the children’s lives.

3. The father contends that the children should primarily live with him on the basis of what he says is the mother’s history of engaging in violent and erratic behaviour.

4. The primary reason for the mother’s contention that the children should live with her is that, according to the mother, the father has a history of substance abuse and has engaged in acts of family violence, including physical violence directed towards herself in the presence of the children. The mother also asserts that the father has, in the past, used the issue of where the children should live as a negotiating tool to obtain payments of money from her.

5. The father similarly alleges that the mother’s position in respect to parenting arrangements is motivated by financial considerations.

6. Neither parent alleges that the other has been physically violent towards the children although both parents assert that the children have witnessed violence perpetrated by the other parent upon themselves.

Approach

1. As will be discussed, in these interim proceedings, I do not propose to apply the presumption of equal shared parental responsibility. In those circumstances, consistent with the decision of the Full Court in Goode and Goode (2006) FLC 93-286 at 80,903 at [81], I propose to take the following approach:

   a)identify the competing proposals of the parties;

   b)identify the issues in dispute in the interim hearing;

   c)identify any agreed or uncontested relevant facts; and

   d)consider the matters in s 60CC that are relevant and, if possible, make findings about them.

Competing Proposals

Parenting

1. The Orders sought by the father in his case outline are as follows:

   That pending further Order: 

   1.In the event that the Court finds the children are at risk of harm in the care of the mother:

   1.1.     The children [B] born … 2009 and [C] born … 2011 (“the children”) live with the father.

   1.2.     The children spend supervised time with the mother with that time to be supervised by the children’s maternal aunt [Ms E Saller] or the maternal uncle [Mr F], on the following days:

   1.2.1.     Each Thursday from after school or 3pm until 8pm;

   1.2.2.     Each Sunday from 9am until 8pm; and

   1.2.3.     As otherwise agreed between the parties from time to time in writing.

   1.3.     That for the purposes of changeovers, and except as otherwise agreed between the parties in writing, the mother or her nominee and [Ms E Saller] will collect the children from school or the father’s residence at the commencement of the children’s time with the mother, and the father or his nominee will collect the children from the mother’s residence at the conclusion of time.

   2.In the event that the Court finds the children are not at risk of harm in the care of the mother, the children live in an equal time arrangement, as follows:

   2.1.     In Week 1, the children live with the father for four nights and with the mother for three nights; and

   2.2.     In Week 2, the children live with the father for three nights and with the mother for four nights.

2. The orders sought by the mother are as follows:

   1.That the children [B] born … 2009 (“[B]”) and [C] born … 2011 (“[C]’) live with the mother.

   2.That [B] spend time with the father as follows:

   2.3.Each week on Tuesday from 3:30pm until 5:30pm.

   2.4.Each week on Thursday from 3:30pm until 5:30pm.

   2.5.Each alternate Saturday from 1:00pm until 5:00pm.

   3.That the father’s time with [B] pursuant to order [2] herein take place at the home of [Ms E Saller] or such other person as agreed by the mother.

   4.That the father be restrained from spending time with the children other than as provided in order [2] herein.

   5.Within 7 days of the date of these Orders the father is to forthwith attend upon a General Practitioner to obtain a referral to an accredited pathologist for the purpose of undertaking supervised urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001 “Procedures for the specimen collection and the detection and quantitation of drugs of abuse and alcohol in urine” to test for the presence of illegal drugs and/or substances; amphetamines, methamphetamines cannabis or cocaine including the levels of such drugs with the test results verified by a certificate which includes a temperature endorsement and be carried out at the Father’s cost.

3. On 19 April 2017 the following orders were made by consent:

   1.That both the father [Mr Dannell] born … 1980 and the mother [Ms Saller] born … 1973 their servants or agents be and hereby are restrained from removing or attempting to remove or causing or permitting the removal of the children, [B] born … 2009 and [C] born … 2011 from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List, also known as the PACE Alert System at all ports of arrival and departure in the Commonwealth of Australia, and maintain the children’s names on the Watch List until the Court orders their removal.

   2.That the mother and father, within 48 hours, lodge all passports for each child with the Registrar of this Court, to be held by the Registrar until further order of the Court.

   3.That each party be, and hereby is restrained from denigrating the other party in the presence or hearing of the children, or allowing the children to remain in the presence or hearing of anyone else who is doing so.

   4.That each party be, and hereby is restrained from discussing these proceedings with the children.

   5.That pursuant to s68L of the Act, the children be represented by an Independent Children’s Lawyer and that the NSW Legal Aid Commission be requested to arrange such representation.

   6.That the parties and, if requested, the children, or either of them, attend Family Therapy with [Ms G], or such other person nominated by [Dr H] of [I Group], and to implement such therapy:

   a.each party shall arrange the first available appointment;

   b.the parties shall attend and continue to attend as requested;

   c.the parties shall cause the children to attend if requested;

   d.the parties shall equally bear the costs of the family therapy.

Issues

1. As will be discussed, the central issue, at this stage of the proceedings, is whether there is a possibility that the parties’ son has been exposed to family violence and, if so what the potential consequences of that are. Determination of that issue in turn impacts upon the consideration of what parenting orders are appropriate including:

   a)Who the children are to live with;

   b)The extent to which the children spend time with the non-resident parent;

   c)Whether the time the children spend with the non-resident parent should be supervised;

   d)What arrangements should be made in respect to changeover; and

   e)Whether orders should be made to compel the father to undertake drug testing.

The contentions of the parties

1. The parties helpfully provided summaries of relevant background facts. The facts that are agreed and those which remain in dispute are identified as follows.

2. In 1973 the mother was born in Asia.

3. In 1980 the father was born in Europe.

4. In early 2008 the parties met in Sydney. The father asserts that shortly thereafter the parties commenced living together. The mother disputes that the parties lived together until late 2010.

5. In 2009, B was born in Sydney.

6. In April 2010 the parties separated. On the father’s evidence, following mediation, the parties agreed on an equal time arrangement for B.

7. On 19 May 2010, the mother attended the father’s residence. The father asserts that the mother damaged items of property. Documents produced by the NSW Police Force (“the police”) (Exhibit H2) confirm that the police charged the mother in respect to the father’s complaint and applied for a Provisional Domestic Apprehended Violence Order on his behalf.

8. On 25 May 2010, a further incident occurred in which the mother attended the father’s residence. Documents produced by the police describe the police attending the husband’s residence at approximately 11:40 pm. According to police records, the police advised the mother that she was under arrest for a breach of the provisional apprehended violence order. It was further noted that it was necessary to use force to subdue the mother and that the mother’s wrists were placed in handcuffs. Upon enquiry, the mother advised the police that B was asleep at the mother’s home. The police records report that the father attended the mother’s residence with the police and located B asleep in a bedroom of the home with no other person inside the home.

9. The father alleges that, after this incident, the then Department of Community Services (now the Department of Family and Community Services (“DFaCS”)) became involved and directed that B live with the father on a full-time basis and spend supervised time with the mother. I will subsequently discuss this contention by the father.

10. In mid-2010 the parties reconciled. The mother asserts that the parties agreed to relocate to China in order for the mother to be with her dying grandmother. The father asserts that the move to China was never intended to be permanent.

11. In July 2010 the mother and B travelled to China and, after selling his business interests, the father travelled to China in November 2010 to join them. The mother asserts that this was the first time the parties had resided together.

12. In 2011 the parties’ second child, C, was born in China.

13. The father asserts that, during the time the parties lived in China, he was the children’s primary carer whilst the mother focused upon developing her business interest. The father asserts that he was primarily a stay at home father although he states that he worked in various roles in the mother’s business during school hours. The mother contends that the father’s role as carer for the children was limited and that the majority of the children’s care was provided by herself and by an employed nanny.

14. The mother alleges that, in late 2013, the father left the parties’ residence with the children while the mother was in City J.

15. The mother asserts that in December 2013 the parties moved to Asian Country K at the father’s request. The father asserts this occurred in January 2014, and was at the mother’s request. The father asserts that the mother spent about thirty per cent of the time with him and the children in Country K and the balance of the time in China attending to her business. The father asserts that he was the children’s primary carer during this time and was very active in the children’s school life, generally being the parent who delivered the children to school and collected them from school. The mother acknowledges spending time away from the parties’ home in Country K in order to attend to her business interests in China, but asserts that the majority of the children’s care during these absences was provided by an employed nanny.

16. The father alleges that, in October 2014, the mother cut off the father’s access to the parties’ joint funds. The father alleges that it was necessary for him to sell his last business interest to obtain funds to sustain the family’s living expenses.

17. On 5 March 2015 the mother departed Country K with the children and took them back to Chinese City L with her. The father asserts that this occurred without his knowledge or consent.

18. On 27 March 2015 the father left Country K to travel to City L to be with the mother and the children.

19. In August 2015, the father took the children on a trip to Europe. The mother alleges that the father was due to return to City L on 28 August 2015.

20. On 14 August 2015, the mother travelled to Europe to join the father and the children but asserts that she was unable to locate them.

21. On 26 August 2015, the mother returned to China for a business meeting in City M. The mother alleges that on 27 August 2015, she was violently raped.

22. On 28 August 2015, the mother returned to City L from Chinese City M and asserts that she discovered that the father had not returned from Europe with the children as had previously been arranged, but rather had travelled from Europe to Sydney with the children, stating that it was his intention to reside in Australia permanently.

23. The mother arrived in Australia on 30 August 2015. The father asserts that, upon her arrival, he collected her from the airport and took her to the property where he was residing with the children.

24. On 3 September 2015, the parties attended a settlement conference with their legal representatives and interim consent orders in relation to parenting and spousal maintenance were entered into the Court’s records on 4 September 2015. The mother asserts that she felt pressured into agreeing with the orders. Those consent orders were, relevantly, as follows:

    a.That the Applicant Mother be permitted to remove the children, B born … 2009 and C born … 2011 from the Commonwealth of Australia.

    b.The Court notes that the Respondent Father is to travel with the Mother and the children to China on the weekend on or before 7 September 2015.

    c.The Court notes the interim Consent Orders deal with Interim Parenting Orders and Spousal Maintenance.

    d.That prior to travel the Father will provide the passports of the two children to their Mother upon confirmation that $20,000 has been paid into his Citibank China account details provided to the Mother.

    …

    l.The Court notes that the parties have separated on 3 September 2015.

    m.In the event the Father lives other than in the former matrimonial home, the children live with the Mother and Father as agreed on an equal basis provided the Mother is available for their care.

    n.The parties agree to move back to Australia to reside within 18 to 20 months with the children.

25. On 7 September 2015 the parties returned to City L and lived together, despite being separated.

26. In December 2015 the parties travelled to Australia with the children.

27. In January 2016, the mother looked for properties to buy in Australia and the father returned to City L with the children two weeks earlier than the mother.

1. On 23 June 2016, the mother changed the locks to the family home in China to exclude the father from the property.

2. The mother alleges that on 7 July 2016, the father attended the family home, broke down the apartment door and violently assaulted the mother in the presence of the children. The father denies this incident occurred.

3. In July 2016, the father asserts the parties resumed living under the same roof.

4. In November 2016, the father commenced enforcement proceedings in relation to the spousal maintenance component of the consent orders made on 4 September 2015.

5. In December 2016, the mother left City L with B. At that time, C did not have a valid passport and remained living in City L with the father.

6. On 15 January 2017 the mother rented an apartment in Sydney.

7. On 18 January 2017, the mother flew to City L to arrange C’s travel documents.

8. On 24 January 2017, the mother lodged C’s passport application with the Australian Consulate in City L. On that same day, the mother returned to Australia to arrange for B to commence school.

9. On 6 March 2017, the father attempted to leave China with C but was unable to do so.

10. On 14 March 2017, the mother flew to China for the purpose, she states, of collecting C.

11. On 16 March 2017, the mother arrived in City L and went to the parties’ apartment. The father asserts this occurred between 2.00 am and 3.00 am. B was left with the maternal aunt in Sydney.

12. On 18 March 2017, the parties were involved in a violent exchange. The father asserts this occurred after the mother refused to allow C to leave with him in order to travel to Sydney. The father asserts that after heated words, the mother ripped his shirt and scratched his chest with her fingernails. The mother asserts that the father pinned her down including by placing his knee on her left ear, and then tried to strangle her. The mother asserts that the physical contact began when she had C on her knee. The parties agree that C witnessed the event.

13. The mother asserts that, after the incident on 18 March 2017, the father left the City L apartment with her phone and boarded a flight to Sydney.

14. The mother asserts that on 19 March 2017, her phone and C’s passport were returned to her.

15. On 19 March 2017, the father arrived in Sydney.

16. On 21 March 2017 the mother and C returned to Sydney.

    On the same day the father filed an urgent parenting application seeking ex-parte orders. No attempt had been made to attend upon a family dispute resolution practitioner prior to the application being filed.

17. On 27 March 2017, the father moved into a friend’s home in Suburb N. The mother claims this property is unsuitable for the children to stay at.

18. On 19 April 2017, the matter was listed for an interim hearing in the duty list but was marked not reached and listed for further hearing on 8 May 2017.

19. Subsequent to 19 April 2017, the parties have agreed to attend upon Mr D for the purpose of undergoing a program of family therapy.

Evidence and witnesses

1. The father relied upon the following material:

   a)Affidavit of the father filed 21 March 2017;

   b)Affidavit of the father filed 4 May 2017;

   c)Affidavit of Ms O filed 18 April 2017;

   d)Affidavit of Mr P filed 18 April 2017; and

   e)Affidavit of Ms P filed 18 April 2017.

2. The mother initially relied upon the following material:

   a)    Affidavit of the mother filed 13 April 2017; and

   b)    Affidavit of Ms E Saller filed 4 May 2017.

3. At the hearing of the interim application each party sought to tender additional documentation including records from the New South Wales Police Force, DFaCS as well as correspondence between the parties’ legal representatives. To enable the matter to proceed, without delay, I provisionally accepted the tender of that material into evidence pursuant to section 57 of the Evidence Act 1995 (Cth). In so doing I advised the parties that if I referred to the material in this judgment, as forming part of my reasoning process, that I regard the fact(s) as being relevant and admissible. If the material is not referred to, it can be inferred that I regard it as irrelevant or, more accurately, of insufficient weight or probative value to influence my reasoning process.

4. I have not referred to the correspondence between the parties’ legal advisers because it is substantially self-serving and does not assist me to determine the central issue in this matter which, as previously noted, is whether it is possible that the parties’ son has been exposed to family violence and the potential consequences of that.

the law

Concepts and principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to parenting proceedings. Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both 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 their parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[1]

   [1]Family Law Act 1975 (Cth) s 43(1)(c).

3. Section 61DA(1) provides that 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”. Relevantly for these proceedings, s 61DA(3) provides that:

   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 inability of the Court, in these interim proceedings, to make a determination in respect to the parties’ allegations of family violence are such that it would not be appropriate for the presumption of equal shared parental responsibility to be applied. In those circumstances, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. The Court is then at large to consider what arrangements will promote the best interests of the child having regard to s 60CC and the considerations contained therein.

5. Those arrangements may nonetheless include equal time or substantial and significant time.[2]

   [2] See Goode and Goode (2006) FLC 93-286 at 80,899 [10].

Paramount consideration in making parenting orders

1. Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is confirmed in s 65AA.

2. Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC considerations, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.

3. In balancing these considerations, s 60CC(2A) requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

Identifying an unacceptable risk of harm

1. A useful guide to considering the issues of unacceptable risk of harm is set out in the paper entitled ‘Unacceptable risk – A return to basics’[3] by the Hon. John Fogarty A.M. His Honour there relevantly states that the following principles, inter alia, emerge from the case of M v M (1988) 166 CLR 69:

   ·     The decisive issue is and always remains the best interests of that child.

   ·     All other issues are subservient.

   ·The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

   [3] (2006) 20 Australian Journal of Family Law 249, 265 – 266.

2. In this matter, as noted, the parents have each made allegations that the other has engaged in acts of family violence. In these interim proceedings I am unable to resolve the competing factual contentions.

3. Of further concern is that there appears to be several instances where the children have witnessed disputes between the parents. The most significant event appears to be the incident that occurred on 18 March 2017. Both parties agree that, on that day, C witnessed an event involving family violence. Both parties however, give a different account of that event. I will subsequently discuss the parties’ respective contentions in respect to that event in identifying the risk to which C, in particular, may be exposed.

4. It is of note however, that while each party alleges that the other has engaged in acts of family violence towards the other, neither party alleges that the other has been physically violent towards the children.

Additional Considerations

1. Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests.

Avoiding an unacceptable risk of family violence

1. I note that, in addition to considering the matters set out in s 60CC of the Act in making parenting orders, the Court is obliged to consider the risk of family violence.[4] Section 60CG provides:

   [4] Salah & Salah (2016) FLC 93-713 at 81,516 [35].

   Court to consider risk of family violence

   (1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

   (a) is consistent with any family violence order; and

   (b) does not expose a person to an unacceptable risk of family violence.

(2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Section 60CC considerations

1. As previously noted, it is the responsibility of the Court to regard the best interests of the child as a paramount consideration in all parenting matters (s 60CA). In interim proceedings this must occur in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court.

2. In that context, in Cowling v Cowling(1998) FLC 92-801 the Full Court said at 85,006:

   18. …Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties...

3. In this matter I am concerned that, at this early stage of the proceedings, there is an absence of expert evidence from a psychiatrist, psychologist or social scientist to assist the Court in making a determination in respect to matters concerning the best interests of the children. I am also concerned that, in circumstances where the parties are so diametrically opposed in respect to parenting arrangements, there is a lack of representation of the interests of the children.

4. Nevertheless, despite these limitations, to ensure as comprehensive a consideration as possible, I propose to consider the matters set out in s 60CC(3) prior to addressing the primary considerations set out in s 60CC(2).

Issues relating to the children

1. In terms of s 60CC(3)(a), while the children are only seven (almost eight) and five years old, I nonetheless accept that the children are both at an age and level of maturity and understanding that the Court should give some weight to their views as to appropriate parenting arrangements.

2. Significantly, the mother asserts that, as result of witnessing the incident involving family violence on 18 March 2017, C is apprehensive about spending time with his father. The father does not acknowledge that C has any such apprehension. The father asserts that he has spoken freely with C over the telephone and alleges that the mother has attempted to impede that communication. The mother denies that allegation and contends that C is anxious about talking to his father over the telephone.

3. Regrettably, there is no objective evidence regarding the children’s views and, at this stage in the proceedings, I am unable to conclusively determine what those views are. I will subsequently discuss the mother’s assertions that C is distressed at the prospect of spending time with his father.

4. In terms of s 60CC(3)(b), each of the parties have presented evidence to the Court with a view to establishing that they have been the primary carer of each of the children and consequently, have a close relationship with each of the children. I am unable to resolve this factual controversy. I note that the children have also spent time with the maternal aunt. However, once again, I am not in a position to determine the nature of that relationship.

5. In terms of s 60CC(3)(g), I note that the mother was born in Country K and the father was born in Europe. All other things considered, it would be desirable for the children to be able to retain their cultural links to both of their parents’ backgrounds. Again, however, the evidence is such that I am unable, in these interim proceedings, to determine the significance of this consideration.

Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility

1. In terms of s 60CC(3)(c), as noted, each parent asserts that they have been the primary carer of the children and each parent has provided evidence suggesting that the other parent has not played a key role in making decisions with respect to major long-term issues in relation to the children. Once again, in these interim proceedings I am unable to resolve that factual controversy.

2. In terms of s 60CC(3)(ca), the father has presented evidence that, as a result of the mother cutting off his access to their joint account, it was necessary for him to sell his remaining business interests in order to raise funds to support the family. The mother, on the other hand, alleges that the father has failed to reasonably exploit his earning capacity and that she was the one to financially support the family. Once again, I am unable to resolve the competing factual contentions. However, on the evidence available, it appears that both parents have taken appropriate measures to provide for the physical needs of the children.

3. In terms of s 60CC(3)(f), documents produced by the Police (Exhibit H2) and DFaCS (Exhibit H3) contain reference to events that, if established, potentially raise concerns regarding each parent’s parenting capacity.

4. By way of summary, the documents produced by DFaCS contain references to the parties making mutual domestic violence allegations against the other. The documents also contain allegations made by the mother that the father has engaged in substance abuse.

5. Other than in respect to a more recent reference to the events that occurred in China on 18 March 2017, the reports provided by DFaCS relate to events that occurred prior to mid-2010. I note, however, that the parties have been out of Australia for a considerable amount of time since then.

6. I note that the father alleges that in 2010 B was placed in his care. The documents produced by DFaCS include a reference to bail conditions imposed by Magistrate Milledge in mid 2010 in respect to charges that had been laid by police, against the mother, alleging that she had breached an apprehended domestic violence order. The terms of that order are extracted in a letter from the wife’s then solicitors to DFaCS dated 27 May 2010 in which it is stated:

   This morning Magistrate Milledge amended bail condition number 1, by adding to the existing condition 1 the following:-

   Provided that the Defendant may have [B] in her care for periods not exceeding six (6) hours during the day if:-

   A.The child’s father … agrees to such arrangement.

   B.During the time that [B] is in the presence of the Defendant, [Ms Q] is present.

   C.That any handover of [B] between the parents is carried out by [Ms Q] on behalf of the Defendant.”

7. Those bail conditions did not appear to be in place for an extended period of time. By letter dated 3 June 2010 a representative of DFaCS wrote to the mother. Relevant extracts from that letter are as follows:  

   I am writing to advise you that Community Services intends on closing the file that relates to a report received in May 2010 regarding the safety, welfare and well-being of your child, [B].

   Community Services understands that you and [the father] have had a number of domestic incidents in the past few months where the police were called and attended. On or around … 2010 an AVO was issued against you which you violated .. when you arrived at [the father’s] home and the police were called and arrested you on a number of charges.

   We met with you both and after careful consideration have decided that [B] is no longer at risk of harm due to the following:

   1.    [The father] has shown a willingness to protect [B] when necessary and called the police when he believed the  situation warranted it.

   2.    You have admitted you behaved inappropriately and have told Community Services this will not happen again.

   3.    You have enrolled in Anger Management classes twice a week and will continue seeing your private psychiatrist every week.

   4.    You and [the father] have both identified conflicts in your relationship as being one of the primary reasons situations escalate to the point that they have and accept that this cannot continue.

8. As noted in the above chronology, the parties reconciled in mid-2010. In July 2010, the mother moved to China and the father subsequently followed her, in November of that year, after he had attended to the sale of some of his business interests.

9. The events that are recorded in the documents produced by the Police and by DFaCS relate to events that occurred prior to mid-2010. At this stage of the proceedings, the facts set out in those documents do not substantiate a finding, as contended by the father, that the children are currently at risk living with the mother.

10. In terms of s 60CC(3)(i), if it is the case that the parents have perpetrated acts of family violence against the other in the presence of the children then the parent who has so perpetrated those acts has clearly acted in a grossly irresponsible manner. I am not however, in these interim proceedings, in a position to determine that issue.

Issues of family violence

1. In terms of s 60CC(3)(j) I have noted, in the above chronology, that the police attended the father’s premises on 19 and 25 May 2010. I have also referred to the involvement of DFaCS as result of those events.

2. As I have indicated, the length of time that has elapsed since those events occurred is such that I do not regard the events as impacting upon my decision in respect to current parenting arrangements.

3. The mother alleges that the father assaulted her on 7 July 2016. As noted, in these interim proceedings I am unable to determine whether that occurred.

1. The incident that gives me greatest concern is the incident that occurred in China on 18 March 2017. Both parties have given significantly different accounts of what occurred. On either version of events, however, there is no doubt that a violent incident occurred in which the parents were involved, and which C witnessed.

2. The mother’s account of the incident is that after an exchange of words the following events occurred:

   I then went to the sofa and [C] came to sit of (sic) my lap. [The father] became extremely angry and approached us and try to grab [C] out of my arms. [C] was screaming and I was trying to hold onto him and cuddle him. [The father] then forced my arms open, pinning my arms against the back of the sofa and said words to the following effect:

   “[R] run to the door”

   [R] is our nickname for [C]. [C] didn’t run to the door but instead stood on the sofa next to us. At this point I am sitting on the sofa with [the father] restraining my arms above my head and pushing them backwards so I can’t move.

   I saw that [the father] wanted to grab [C]. [The father] then push (sic) me onto the sofa so that I was face up with my back lying on the sofa and my feet on the ground. [The father] then pushed his right knee against the left side of my face and placed all his weight on that knee that was pinning me down. I was screaming and crying in agony. I could see [C] from the corner of my eye also screaming and crying. [The father] pushed me down with his knee even harder and I was struggling from beneath him. With one of my arms I was able to pull on [the father’s] shirt and scratched his chest to try and get him to release me.

   [The father] kept pushing his knee into my head I remember screaming loudly with pain. I then saw [C] run into his room and I heard the door the (sic) slam. [The father] then let me go and went to go after [C]. I went to get up and as I was getting up [the father] turned around and kicked with his right foot into my stomach. I then grabbed onto the front of his shirt and [the father] then wrapped his hands around my neck strangling me. I was then struggling to breathe and was scared for my life. I screamed out:

   “Help. Help. [R] go get the police. Help Mamma.”

   [C] then came out of his room and stood there watching as [the father] was strangling me. After about 30 seconds [the father] saw [C] watching and then he ran out of the apartment.

   (Affidavit of the mother filed 13 April 2017)

3. The father’s account of the event is as follows;

   5.[The mother] was informed that I was planning to travel with [C] to Australia that weekend and we exchanged numerous text messages about this on Friday 17 March 2017 and Saturday 18 March 2017. On 18 March 2017 when I tried to leave the home with [C] so that we can travel to Australia, [the mother] verbally abused me, swore in front of [C], yelled at me and then proceeded to rip my shirt and scratch my chest, leaving scratch marks on my body.

   …

   31.…I returned to the family home on Saturday, 18 March 2017 to collect [C] and take him to the airport with me.

   32.As soon as I walked into the apartment to collect [C], [the mother] started arguing with me and accusing me of stealing her possessions. As I was concerned that [the mother] may attack me again, I turned on the camera on mobile phone and recorded the incident. Our son was in the room whilst we had this argument. I said to [the mother] on numerous occasions words to the effect of “can we not argue in front of [R] ([R] is [C’s] middle name)”. [The mother] kept shouting words to the effect “you stole my shit… who the fuck does that? Can you not steal my shit… take off your fucking jacket I bought that for you… it does not belong to you and now you’ve stolen my fucking personal shit…”.

   33.I kept begging [the mother] not to do this in front of our son and she then put him on her lap and refused to let him come with me. She said then said (sic) to [C] words to the effect of “but what if you sit next to daddy for too long and you become a thief?… you know that jacket he is wearing, mama bought that, my necklace is missing, half the stuff in my house is missing because someone is stealing…”. She then [said] to [C], who is five years old, was to the effect of:

   “You’re going to become a lying cunt if you spend too much time with your dad”.

   34.[The mother] then proceeded to physically attack me, ripping my shirt and scratching my chest. In order to protect [C] as much as I could in the circumstances I decided it was best to leave this toxic situation. [The mother] refused to allow [C] to come with me and I did not want to inflame the situation further.

   35.I left on an afternoon flight from [City L] on 18 March 2017 and arrived in Sydney on 19 March 2017. [C] did not travel on his ticket.

   (Affidavit of the father filed 21 March 2017)

4. The father attached a photograph of scratches to his chest as Annexure A to his affidavit filed on 21 March 2017. The mother attached medical reports to her affidavit filed on 13 April 2017. A report of Dr S dated 3 April 2017 records the mother attending his medical practice on 21 March 2017. The report states:

   On examination: she was clearly upset, she had bruising over her left ear pinna and left face, and bruising and swelling over her upper chest.

5. In summary, irrespective of which parent’s account of events is accurate, it is clear that C witnessed a violent encounter between his parents. Indeed, on the basis of evidence, as it currently exists, it is possible that both parents sustained injuries during the encounter.

Effect of change

1. In terms of s 60CC(3)(d), I note that changing the residence of the children from the mother to the father would represent a change for them. This is more so in the case of B who has been living with her mother since December 2016. It would also represent a change for C who has been living with his mother since he returned from China to Australia on 21 March 2017.

Practical difficulty of implementation

1. In terms of s 60CC(3)(e), the mother is concerned that the father is currently residing in accommodation that is not suitable for the children. Otherwise, there did not appear to be major practical difficulties in the children living with one parent and spending time with the other.

Avoiding further proceedings

1. As these are interim proceedings s 60CC3(l) is not applicable.

Other relevant matters

1. In terms of s 60CC(3)(m), a concerning aspect of these proceedings is the parties’ respective allegations that financial considerations are impacting upon each party’s approach to these proceedings and, in turn, the parenting arrangements for the children. It is not possible, on the basis of evidence currently before me, to make any findings in respect to those allegations. It goes without saying that the Court would regard any such ulterior motive on the part of any party as deeply concerning.

Primary considerations

Meaningful relationship

1. In terms of s 60CC(2)(a), neither party contended that the children should not have a meaningful relationship with the other parent. I accept that the children have had a meaningful relationship with each parent. Clearly the failure to make orders for the children to spend appropriate time with either parent would impact upon the children’s relationship with that parent. Similarly, an order for supervised time may create artificiality in the relationship between the child and the parent whose time with the children is supervised. This may also adversely impact upon the maintenance of a meaningful relationship between the child and that parent.

Risk of physical harm

1. 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. Significantly, s 60CC(2A) requires me to prioritise that consideration.

2. I have previously noted that neither party makes allegations against the other that they have perpetrated acts of violence towards the children. The mother makes allegations that the father has had, and continues to have, issues with substance abuse. The father however, strongly denies these allegations.

3. In the absence of corroborative evidence or expert opinion to the contrary, there is no basis to conclude that the children would be at risk of abuse or physical harm in the presence of either parent.

4. In the context of the parties’ allegations that each party has a history of perpetrating acts of family violence towards the other, there would be a risk that the children would be exposed to family violence at least at the point of changeover between their parents.

5. In Blinko & Blinko[5] the Full Court confirmed that, in circumstances where the Court is satisfied that a parent represents an unacceptable risk of harm to a child the Court is required to consider steps that can be taken to ameliorate that risk including, for instance, “supervision of any time or communication between the parent and the child…” (emphasis added).

   [5] [2015] FamCAFC 146 at [83].

6. In that context, it is possible to structure orders such that the parents do not come into contact with each other at the point of changeover. This would significantly reduce the risk of the children being exposed to family violence.

7. The orders I propose to make will include arrangements for changeover to occur through a neutral third party.

Risk of psychological harm

1. In terms of potential risk of psychological harm, the father alleges that the mother has a history of engaging in violent and erratic behaviour. As noted, there are some concerning references to the mother’s behaviour in the Police and DFaCS records to which I have referred. Those records however, make reference to incidents that occurred prior to mid-2010. In the absence of more recent material suggesting that mental health or other behavioural issues currently impact upon the mother’s parenting capacity, I do not regard the events that occurred before June 2010 as being relevant to my consideration as to what orders are in the best interests of the children.

2. The matter that does cause me some concern is that, on 18 March 2017, C was exposed to an incident where physical violence occurred between the parents. There is a possibility that he may have been emotionally affected by witnessing that event. I will discuss the consequences of this finding below.

3. I also note that the mother asserts that C has discussed the event with B and, as will be further discussed, the Court holds some concern that B may have some initial apprehension about spending time with her father.

Evaluation of section 60CC factors

1. On the evidence currently available, it is not possible to make a final determination in respect to those matters set out in s 60 CC(3) of the Act.

2. Consistent with Banks & Banks,[6] I propose to focus on the central issue in these interim proceedings which is one of balancing the primary considerations set out in s 60CC(2).

   [6] (2015) FLC 93-637.

3. In terms of s 60CC(2)(a) the available evidence satisfies me that the children have had a meaningful relationship with both their parents and, consistent with the children’s physical and emotional safety, that relationship should be encouraged.

4. As noted however, in terms of s 60CC(2)(b), I have concerns regarding the children and, in particular, C, facing an unacceptable risk of psychological harm if orders are made for him to spend time with his father prior to the parties and the children undergoing at least the initial stages of family therapy. My reasons for arriving at that conclusion are as follows.

5. Despite the limitations on my ability to make findings in respect to controversial facts, the Court is nonetheless required to consider risk. In that respect as in SS v AH[7], the majority of the Full Court (H and Thackray JJ) said:

   100.…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [7] [2010] FamCAFC 13, see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].

6. It is to be observed that the reference by the Full Court in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[8] as long as there is a proper basis for those “possibilities”.

   [8] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

7. Irrespective of which of the parties’ versions of the events of 18 March 2017 is correct, there is, in my view, a real possibility that C may have been emotionally affected by what he witnessed on that day.

8. In my opinion there is therefore an unacceptable risk of C suffering psychological harm if orders are made for him to immediately commence spending time with his father. In so far as that risk is one that arises from C witnessing the violent incident between his parents on 18 March 2017, it is a risk that arises from C having been exposed to family violence.

9. As a result, taking an appropriately cautious approach in these interim proceedings, I am not prepared to make orders for C to spend time with his father in the absence of evidence from an appropriately qualified expert.

10. The parties both agree that it is appropriate for the Court to make orders for a child responsive memorandum to be prepared by the Child Dispute Services of the Court. Subject to progress that may be made in the family therapy that the parties have agreed to attend, I do not propose making orders for C to spend time with his father until such time as the Court receives the Child Responsive Program memorandum.

11. Drawing the parties’ attention to my comments regarding the importance of the children having a meaningful relationship with each of their parents, I would however, encourage the parties to discuss this matter with Mr D, who is providing family therapy to the parties, with a view to agreeing upon a regime whereby C recommences spending time with his father. The orders I make will facilitate that occurring.

12. There is not the same element of risk in respect to B spending time with the father. However I note that, other than for one day and one evening, B has not spent time with her father since December 2016. I further note the mother’s evidence that B has been informed of the events on 18 March 2017 by C. If that is the case it is possible that B may have some reservations about spending time alone with her father.

13. Accordingly, to enable B to adjust to spending time with her father I will make orders for that time to be supervised. It would be desirable for the supervisor to be a person who B is familiar with. In circumstances where B has spent time with her maternal aunt since she returned to Australia in December 2016 I will make orders for the supervision to be provided by the maternal aunt.

14. At this stage in the proceedings I do not propose to make orders for B to spend overnight time with her father although, I would encourage the parties to explore this possibility through the process of family therapy that they are engaging in.

Drug testing

1. The mother has applied for orders requiring the father to undergo urine analysis. I note that the father recently voluntarily undertook urine analysis. There is a dispute between the parties regarding the efficacy of that process and the significance of the results. However, in the absence of objectively verifiable evidence or expert opinion, there is no basis for me to conclude that the father’s parenting capacity is affected by substance abuse. Accordingly, I do not propose to make the orders sought by the mother in respect to drug testing.

Orders

1. For all of these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 9 June 2017.

Associate: 

Date:  9 June 2017.