De Luca & Farnham
[2022] FedCFamC1F 907
Federal Circuit and Family Court of Australia
(DIVISION 1)
De Luca & Farnham [2022] FedCFamC1F 907
File number(s): SYC 4550 of 2022 Judgment of: SMITH J Date of judgment: 6 October 2022 Catchwords: FAMILY LAW – PARENTING – Ex tempore judgment – Interim parenting orders for two children – Where previous orders were made on a final basis – Where the mother raises allegations of ongoing family violence – Where the father says the mother is trying to alienate him from the children – Where the older child has ceased spending time with the father and says she consequently no longer feels the need to self-harm –Where the mother seeks supervised time between the father and the younger child – Where the father seeks unsupervised time with the younger child but seeks no time if time if supervision is required – Where there is a unacceptable and psychological risk to the younger child spending unsupervised time with the father – Ordered that the mother have sole parental responsibility and for the children to live with her – Ordered that the father and the younger child have telephone communication once a week Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby v Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346
M & M (1988) 82 ALR 577
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Stott & Holgar [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 65 Date of last submission/s: 6 October 2022 Date of hearing: 4 August 2022; 6 October 2022 Place: Heard in Sydney on 4 August 2022, heard via Video link on 6 October 2022 Solicitor Advocate for the Applicant Ms Forrest Solicitor for the Applicant Caroline McKenzie Legal Solicitor for the Respondent Litigant in person Solicitor Advocate for the Independent Children’s Lawyer Mr Samuel Solicitor for the Independent Children’s Lawyer Brian Samuel & Associates ORDERS
SYC 4550 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DE LUCA
Applicant
AND: MR FARNHAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
THE COURT ORDERS THAT:
1.The matter be adjourned to a date to be fixed by a Judicial Registrar in Sydney.
2.The Applicant mother, Ms De Luca born 1977, have sole parental responsibility for making decisions about the long term care, welfare and development of X born 2009, and C born 2013 (“the children”).
3.The children live with the Applicant mother.
4.The child C be available for a telephone call with the Respondent father, Mr Farnham born 1997, between 7-8 p.m. each Wednesday and that call is to be initiated by the father.
5.The parties will advise each other of any change of telephone number or residential address within 4 hours of such change.
6.The parties are restrained by injunction from criticising or denigrating the other party or the other parties family in the presence of or within the hearing of each of the children, or so far as possible from permitting any other person to do so.
7.The parties are required to encourage, rather than to undermine each child’s relationship with the other party.
8.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Court Child Expert nominated by the Manager, Court Children Services on a date and at times to be advised for the purpose of the preparation of a Family Report and in particular:
(a)To consider the factors in section 60CC and 65DAA of the Family Law Act 1975;
(b)To consider issues raised in the Court Child Expert’s Memorandum to Court;
(c)To profile of the parents (and other significant adults);
(d)To assess the parents interactions (and those of other significant adults);
(e)To assess the relationship of the children to the parents (and other significant persons);
(f)To ascertain the wishes of the children unless inappropriate by reason of age or other special circumstances;
(g)To assess the proposed and actual home environments; and
(h)To assess the proposals of each party as to the children’s future.
9.The Court Child Expert is granted leave to inspect all documents produced in response to Subpoena.
10.The report be released as soon as practicable, or unless otherwise arranged with Chambers.
11.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to an Independent Children’s Lawyer I the proceedings.
12.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A convener of any legal dispute resolution conference.
13.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
14.Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.
THE COURT NOTES THAT
A.The parties are considering the appointment of a Single Expert, however there are issues as to the identity of that expert and as to the ability to pay.
B.If the parties and the Independent Children’s Lawyer are able to agree on the appointment of a Single Expert witness, including payment, they may approach the Registry to vacate the order for a Family Report and to make orders by consent for the appointment of a Single Expert.
C.This matter should remain in Division 1. It should be docketed to a Judge in the Sydney Registry as Justice Smith has now transferred to Newcastle.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym De Luca & Farnham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J
These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (“the Act”) in an interim application for parenting orders regarding X born 2009, and C born 2013.
The short facts are as follows. The applicant mother Ms De Luca, who is 44, and the respondent father Mr Farnham, who is 48, are the parents of the children. They commenced living together in about 2008, had the children, and then separated on about 5 August 2013, almost 10 years ago.
There was previous litigation resulting in orders from the Family Court of Australia on 28 June 2018, and orders from the Full Court of the Family Court on 13 June 2019. The relationship between the parents was, and unfortunately almost 10 years later still is, one of high conflict.
That conflict re-emerged in about March of 2021, in the context of X allegedly telling the mother that she was self-harming because she did not want to spend time with the father. There are photographs showing X’s self-harm behaviours, which are disturbing, and this issue is addressed further below in terms of what X said to the Court Child Expert.
X, it appears, has not seen the father since then. The father did continue to spend time with C pursuant to the orders. Unfortunately, on 29 June 2022, the father took C from school, apparently outside of orders, and took him to the D Region on holidays without the mother’s consent. On 30 June 2022, the mother filed an initiating application which brings the matter before this Court. On 1 July 2022, a Judge in Division 2 granted a recovery order which was executed at the home of the paternal grandfather in the D Region, and C was then returned to the mother.
On 6 July 2022, at a directions hearing an Independent Children’s Lawyer (“ICL”) was appointed and an interim hearing was listed for 4 August 2022. There were also orders for a Child Inclusive Report to be prepared, but that was not able to be completed by 4 August 2022.
The ICL advises that the children were interviewed on 29 July 2022.
The matter came on before me in circumstances where the docket Judge in Division 2 had become unavailable and where I had become available. On that basis the matter was transferred to Division 1.
I note that whilst it was transferred on that basis, and that it was anticipated that it would be transferred back, I consider me the matter should remain in Division 1. At the interim hearing that started before me on 4 August this year all the parties were legally represented. The mother’s allegations were of ongoing family violence, and coercion and control in respect of the father’s dealings with her and the children. She made significant allegations. Given that I cannot make findings of fact on contested issues, and given other material I will refer to, I do not consider it necessary or appropriate to set out the allegations in detail.
Significantly, the mother says that she believed that X’s self-harming behaviours were as a result of the father’s conduct which had impacted X, and that she felt C was scared of the father. The father alleges in reply that the mother is manipulative, dishonest, controlling and coercive. He says she is merely continuing a long-running campaign to, effectively, alienate the children from him.
In those circumstances, and noting the children’s age, in particular, X’s age, and where a Child Impact Report had been ordered, by consent the matter was stood over to today, 6 October, to allow the Child Impact Report interviews to take place and to provide the Court with more information from the children, in particular, X, and also to have the benefit of such advice as an expert could provide on an interim basis.
I note that the Consent Orders included a suspension of all time with either child and telephone calls between the father and C. That suspension was, of course, on a without prejudice basis in the context of serious allegations and noting the guiding principles which require the Court to take a conservative approach. I do not take that concession at that time to be anything other than a sensible forensic decision, and there was not implied consent or agreement by the father that he had, in fact, done any of the things that were said.
Each party was also ordered on a consent basis to obtain a mental-health assessment from a psychologist or psychiatrist. The mother, I note, has provided a short report dated 23 September 2022 from Mr E who appears to be a registered psychologist. It is a relatively simple assessment based on a self-report, but, so far as it goes, it supports the mother as having good mental health and being child-focused. The father has not complied with this order, and I note that he was put on notice that, as he has consented to the order, failure to provide such an assessment prior to a final hearing may lead to an adverse inference being drawn against him. That is a matter for him.
The matter has come back to me today, with the father electing to now represent himself.
The parties were allowed to provide updating material. The mother sought to rely upon a further affidavit which covered the same ground as her prior evidence. The father objected. His objection was appropriate. The mere repetition of material already before me was not allowed, although there was some evidence in respect of the period post-4 August 2022 which I allowed. It was evidence of similar alleged ongoing conduct.
Now, the mother provided a short, updated case outline which set out the orders she now seeks, and those orders are set out starting at page 5 of her case outline as filed on 4 October 2022. In short, she seeks orders that she have sole parental responsibility and that the children live with her. She sought supervised time for the father and C for four hours each alternate weekend or such time as may be agreed, and that the father may communicate by telephone with C on Wednesday between 7 and 8 pm, which is the same order that has been in place on an interim basis since 4 August 2022.
She also sought procedural orders that the parties advise each other of any change of telephone number or residential address, and she sought injunctions that the parties not criticise or denigrate the other party, and the parties are encouraged not to undermine the children’s relationship with the other party. She also sought, at order 8, orders in respect of outstanding child support, but it was conceded during oral submissions by the solicitor for the mother that that matter is not properly before me today and no submissions were made. I will not deal with outstanding child support.
The father has provided a document which was filed as an application in a proceeding, noting that after the last occasion he decided that he would represent himself, as he is entitled to do. It is not actually an application in a proceeding. It is a statement by way of, effectively, case outline of what orders he wishes. That was filed on 6 October, which is this morning, at 10.01 a.m. The first order sought was the applicant not be allowed to file further material. He succeeded on that, noting that updating material was filed by the mother and it was of little additional relevance.
I did allow the mother’s psychologist’s report in where the parties had agreed by consent that they should each obtain such a report. The orders 2, 3 and 4, as sought by the father, go to the appointment of a single expert, a Dr F. I am not familiar with Dr F, nor is the ICL or the mother’s solicitor, which does not mean that he is not eminently qualified to do a report. The father seeks equal payment.
There is an issue dealing with that today in circumstances where the father does not have Dr F’s CV. He also says that this expert will do a report based on Medicare rates. However, even on Medicare rates, if it is an hourly rate fee, it may be thousands of dollars. The ICL and the parties have agreed that there should be a family report if there is no single-expert report.
The mother says the father owes her about $30,000 in outstanding child support. I cannot make a decision about that. But it may be that the father was not aware of the kinds of funds that are required to get a single expert.
This is a matter where I am satisfied that the parties are probably not in a financial position to require them to pay for a private report.
I propose to make an order for a family report on the basis that if the parties can come to agreement on the identity and payment for a single expert, then, of course, they can approach in chambers to make those consent orders and to vacate the family report order. There is no doubt that the matter needs to have such a full report to allow a final hearing which should occur.
The father also sought full and frank disclosure of the mother’s financial position. That was in relation to child support. I am not hearing child support. In those circumstances, that was not pressed, and there are no property proceedings on foot.
The father, sensibly, said that he does not at this time seek for reinstatement of orders for time with or communication with X, where X, being 13, vehemently opposes that. Even though, he says, X’s expressed wishes arise because she has been manipulated and alienated from him by the mother, he accepts that given her expression of her opinion at the moment it would not be appropriate to try and compel her to comply with those orders. I think, as the ICL said, that is a very sensible position. It also acknowledges the inevitability of what I must do given the law that applies to an interim hearing.
The father’s basic position was that he should be able to start spending time with C again.
The father was asked about his position on orders in the alternative, and he said that if he cannot have unsupervised time with C, he does not want time with C. He says this is because time in a supervision centre is, paraphrasing his words, more detrimental to the maintenance of a meaningful relationship than having no time at all because of the artificial and strained nature of the setting. People may disagree about that, but that is his position. Where he says that, then, obviously, it would not be appropriate to make orders for supervision and time with C if I do not accept the father’s case. He does, however, seek the ongoing phone calls which the mother also agrees to.
The father did not provide any additional material apart from his proposed further orders.
The Child Impact Report of Ms G dated 5 September 2022 was tendered by the ICL, and I admitted it into evidence.
The ICL also provided short, additional, written submissions, again, supporting what was said in their prior submissions. In effect the ICL supported the mother’s proposed orders 1 to 7.
Now, in circumstances where the parties each accuse the other of lying and manipulating the children and the court processes, and where, as I will come to shortly, I cannot make findings on contested issues of fact, there being no cross-examination, I cannot know the true position.
Clearly, given the stark contrast in their evidence and the allegations involved at least one of them is lying, and possibly both. I cannot know.
But what I can do is give weight to what the parties and in particular what the father said himself to the Child Court Expert, as well as to what X said, noting her age, but also keeping in mind the possibility, as the father says, that X has been maliciously alienated from him by the mother.
Now, the Court Child Expert spoke with X who told her a series of things. The Child Impact Report says at [12]:
[X] has not spent any time with [Mr Farnham] since approximately March 2021, and advised the Court Child Expert that she has chosen to cease spending time with him because she felt unsafe in his care. [X] reported that, at the time she stopped spending time with [Mr Farnham] she was self harming […]. She reported that since she has stopped seeing [Mr Farnham], she has not felt the need to harm herself.
I do not need to make findings about this, indeed I do not think I can, without more expert evidence and a full hearing as to whether X has been alienated or she is expressing her own views, but given what I am going to come to in a moment about what the father says himself of himself these are troubling matters. I note the Court Child Expert said that X presented as an intelligent and well-spoken young person at [9], of course, that does not mean she has not been alienated and influenced.
The Court Child Expert also spoke with C, and recorded at [13] of the report.
[C] presented as softly spoken during his interview and appeared visibly nervous. He answered most questions with “I don’t know” or “I can’t remember,” or physically with a shrug of the shoulders. [C] was asked directly about the last time he saw [Mr Farnham], to which he stated he ‘couldn’t remember.’ [C] was asked simple questions such as what his favourite foods were, and he still responded that he could not remember or he did not know.
Now, C is obviously much younger than X, and I note that C was not asked about his view or preference regarding the parenting dispute given his anxious presentation as set out at [14] of the report.
[C] was able to convey that he is in Year 3 and that he likes his classroom teacher. [C] spoke about [X] being “a good big sister,” although she is “annoying sometimes.” [C] spoke about talking to [Mr Farnham] on the phone, and stated that it was “good,” [C] said that sometimes [Ms De Luca] yells when he is “being annoying.” [C] did not provide any views or additional comments regarding the nature of his relationships with his parents or sister. [C] was not asked about his view or preference regarding the parenting dispute due to his anxious presentation. [Ms De Luca] later reflected that she believed he was withholding information because he was worried he would “say something wrong.” [Mr Farnham] was also asked about [C]’s behaviour, and he indicated that he was not sure if [Ms De Luca] had “told him what to do or say.”
Now, [16] deals with what Mr Farnham said about himself to the Court Child Expert, and I give considerable weight to that, because this is not what the mother says about Mr Farnham, this is what Mr Farnham says about himself:
[Mr Farnham] denies being abusive and is reportedly contesting the current ADVO. [Mr Farnham] has expressed that he believes [Ms De Luca] is using the Police and Court as a means of sabotaging his relationship with his children. Despite [Mr Farnham]’s denials that he is abusive, he repeatedly referred to [Ms De Luca] as a “cunt” during his interview with the Court Child Expert, and confirmed that he did state he wished she would get cancer. [Mr Farnham] was asked to reflect on what message he believed that would send both the Court and his children during the feedback session. [Mr Farnham] stated that he did not care what the Court thought, and he only referred to [Ms De Luca] as what he perceives her to be. [Mr Farnham] said on two occasions during the session that “If you poke the bear, you get the bear,” in reference to his behaviour.
(emphasis added)
Now, I will take him at his word about himself. He did not suggest to me in submissions that, that was not exactly what happened in the interview. If the father is willing to repeatedly call the mother a “cunt” to the expert who has been appointed by the Court to assess whether he is safe as a person for the children to be with, and where he says, “If you poke the bear, you get the bear”, and apparently he seems quite content that he is justified in his behaviours, then I cannot see why there would be any difficulty believing the mother’s evidence that this is how he behaves with her and with the children. In fact, his denials of her evidence are somewhat inconsistent with his own statements to the Court Child Expert.
He says he is someone who acts like a “bear” when annoyed. That leads me to ask myself, “Why would I leave children in the presence of a bear, or someone who perceives that they are entitled to act aggressively to anyone who ‘pokes’ or annoys them?”. I must say I found comment that extraordinarily concerning.
Now, the father said to me that the Court Child Expert’s opinion should be given no weight as it is, “garbage in, garbage out”, and no more than an acceptance and recitation of the mother’s complaints. I do not accept that. Instead, on my reading of the report, the Court Child Expert placed significant weight upon what the father told her about himself, and it is based upon his own self-report that she has raised her concerns.
I also note that she said at [28]:
[Mr Farnham] presented in both the interview and feedback session as intimidating and lacking insight into the needs of the children. He advised the Court Child Expert that he had no trust in the ‘system’ and believed the current proceedings were a means of [Ms De Luca] exercising coercive control of him and the children. [Mr Farnham] repeatedly used denigrating language about [Ms De Luca], and when he was given an opportunity to reflect on how the Court may perceive the way he speaks about her, it appeared he could not, stating that he does not care. [Mr Farnham] made it known during the interview with the Court Child Expert that he had the personal phone number of a senior judicial officer, that he has current lawsuits filed against NSW Police, and a current complaint filed with the Minister responsible for Department of Communities and Justice. [Mr Farnham] stated on a number of occasions that [Ms De Luca] is manipulative and controlling, and that the Court has previously made findings to that effect. [Mr Farnham] appears to have limited capacity to reflect on his decisions and the impact it would have on his children.
Now, I can only give limited weight to the fact that the Expert found him intimidating as that is a very subjective matter, however, what Mr Farnham says of himself is consistent with what X says of him, and so I now add X’s comments to my assessment.
I note what the Court Child Expert has said about her concerns, at [17], and note that these views would flows naturally from the father’s own behaviour as observed and reported by the Court Child Expert:
Based on the information gathered in this limited assessment, the actions of [Mr Farnham] may present a considerable risk of harm to the children in terms of their psychological and potentially physical, safety. [Mr Farnham] appears to be resolute in his view that [Ms De Luca] is delusional, manipulative and controlling. [X] has expressed clearly that she felt unsafe in his care, and spoke of the feeling of anxiety she would experience at [Mr Farnham]’s mood swings and alleged threats. When [Mr Farnham] was informed of [X]’s wishes and reasoning for them, [Mr Farnham] stated that those were “the mother’s words.”
Now, in terms of C the Court Child Expert said at [26]:
[C] is incredibly vulnerable in terms of his experiences and stage of emotional and psychological development. [C] continues to communicate with [Mr Farnham] over Facetime video call each week for one hour. [C] described this time as something he enjoys, however according to [Ms De Luca], when [C] was spending time with [Mr Farnham] per the previous Orders, he would on occasion return to her care and report being confused and upset about the way [Mr Farnham] spoke about [Ms De Luca]. [C] reportedly told [Ms De Luca] that [Mr Farnham] had told him that he “hopes she gets cancer in the tits” and that she is a “cunt” but that he did not know what that meant. If [Mr Farnham] did have those conversations with [C], then he would have put significant and unjustifiable pressure on [C]. Similar to [X], [C] would be greatly benefited by participating in age appropriate therapeutic counselling. He would also undoubtedly benefit from not being exposed to denigrating language about any of his parents, due to the potential for this to impact his relationship with them.
Now, the Court Child Expert did not, as [Mr Farnham] said, express a firm view, and that is indeed a matter for me applying the principles that bind me on an interim hearing, which I will now refer to.
Each party seeks parenting orders as defined in part 7 division 5, and I note section 64B and the Court’s powers to make such orders under 65D of the Act.
The paramount consideration is best interests of the children. I am satisfied that the consent position concerning X is her best interests. The real issue is what should happen with C and whether there should be telephone calls only or unsupervised time as well.
I note sections 60CA and 65AA. The primary considerations when determining the best interests of C are as set out in section 60CC(2) and, first and foremost, are the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and the second is the benefit to the child of a meaningful relationship with both parents, but greater weight is to be given to protection. And those, of course, are the twin pillars referred to in Mazorski & Albright [2007] FamCA 520, per Brown J at [3]:
The provisions in the Family Law Act1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
There are a plethora of additional considerations, however, as the Full Court said in Banks & Banks [2015] FamCAFC 36, in particular, at [48 to 50], it will be the issues that are joined that will dictate which section 60CC factors are relevant. Here, it is clearly the issue of unacceptable risk that has been raised.
I cannot make findings of fact, as the Full Court said in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”). This is:
[66] …an abridged process where the scope of enquiry is significantly curtailed.
…
[68] Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
However, as it also said at [81]:
…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.
As that the Full Court pointed in Marvel & Marvel [2010] FamCAFC 101:
[120] …interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.
I also note what was said in SS & AH [2010] FamCAFC 13 (“SS & AH”) at 88:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
However, in Eaby v Speelman [2015] FamCAFC 104 the Full Court, referring to Goode & Goode and the restriction on fact finding, pointed out that:
However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
So, I cannot make a finding as to who is telling the truth between the mother and the father, but I can, and do, accept the father’s own presentation to the Court Child Expert and what he said to her as representing his beliefs and his behaviour.
I also note that I am required to do the best I can, as the Full Court also said. SS & AH at [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 acted upon or rejected. It is not also feasible when dealing with the immediate welfare of children simply to ignore an assertion because the accuracy has been put in issue.
And in a similar line in Deiter & Deiter [2011] FamCAFC 82, the Full Court said at [61]:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In circumstances where the mother seeks supervised time, we are, of course, dealing with what is said to be an unacceptable risk. I note what was said in M & M (1988) 82 ALR 577 by the High Court, the classic quote. I also note what was said in Stott & Holgar [2017] FamCAFC 152 about the formulation of orders being a balance. So, in some cases an unacceptable risk can be made acceptable by other means.
I note that whilst I cannot make findings, given what occurred in the Child Impact Report interviews, and noting what the father said of himself of his own beliefs and noting his behaviours which he is willing to demonstrate even in the context of a formal review which he knew would come before me, I am satisfied to the relevant standard on an interim hearing that to allow unsupervised time would give rise to an unacceptable risk of harm to C and that the risk of detriment from spending time with the father outweighs the potential benefit to C from time with the father.
That involves, significantly, my concerns about psychological abuse. There is a real likelihood of psychological detriment being inflicted upon C, especially if the mother is repeatedly referred to as a “cunt” by the father and if he is told that the father wishes the mother would die of cancer. The fact that X expresses fears also satisfies me that in the same environment C may also suffer fear and distress. Further, I would also consider the order regarding C as relevant to X, given that she clearly has strong views and that she would be, as she expressed to the Court Child Expert, very concerned if C spends unsupervised time with the father.
The father could have had supervised time which may have assisted him to maintain his relationship better. He has taken a position that he does not want that. In circumstances where he has taken that position, as he is entitled to, there is no point making orders for that to occur.
In those circumstances and for the reasons I have given, I find that on an interim basis that there is an unacceptable risk to C in spending unsupervised time with the father, in particular, a psychological risk.
There is evidence which rebuts the presumption. I cannot make findings of fact. I cannot say whether or not the mother has caused and/or contributed to the situation of the relationship. There is clearly no communication between the parents. The mother should not be required to deal with the father given the way he expresses himself. It is clear that there cannot be equal shared parental responsibility as the parties could not work sufficiently to co-parent the children. Their best interests require one parent to hold that responsibility, and it should be the mother who they live with.
The children will live with the mother and not spend time with the father. In those circumstances, to protect their interests the mother should have sole parental responsibility.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 21 October 2022
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