Dennis and Dennis and Anor
[2017] FamCA 1066
•20 December 2017
FAMILY COURT OF AUSTRALIA
| DENNIS & DENNIS AND ANOR | [2017] FamCA 1066 |
| FAMILY LAW – CHILDREN – INTERIM DETERMINATION – Where father deceased – Where children live with paternal grandmother – Where mother having supervised time with youngest child – Where mother seeks that her time be increased and no longer supervised – Where issue of lifting of supervision resolved by agreement – Where issue for determination is mother’s time with child pending further order or trial – Where consideration of applicable principles. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA |
| Banks & Banks [2015] FamCAFC 36 MRR v GRR [2010] HCA 4 |
| APPLICANT: | Ms Dennis |
| FIRST RESPONDENT: | Mr Dennis |
| SECOND RESPONDENT: | Ms B Dennis |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Macdiarmid |
| FILE NUMBER: | PAC | 4089 | of | 2014 |
| DATE DELIVERED: | 20 December 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 8 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Caldwell Martin Cox |
| SOLICITOR FOR THE FIRST RESPONDENT: | Marsdens Law Group |
| SOLICITOR FOR THE SECOND RESPONDENT: | Ms Knight of Marsdens Law Group |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Macdiarmid of Mark Macdiarmid Family Law Specialist |
Orders
That all previous parenting orders for the child C born … 2010 (‘the child’) to spend supervised time with the mother be discharged.
That pending further order the child spend time with the mother as agreed between the mother and paternal grandmother in writing such writing to include SMS or Email communication and in default of agreement as follows:
a)Wednesday, 20 December 2017 from 3.00 pm until 7.00 pm;
b)Saturday, 23 December 2017 from 10.00 am until 5.00 pm;
c)Monday, 25 December 2017 from 2.00 pm until 7.00 pm;
(d)Wednesday, 27 December 2017 from 10.00 am until 5.00 pm;
(e)10.00 am Saturday, 30 December 2017 to 5.00 pm Sunday, 31 December 2017;
(f)Wednesday, 3 January 2018 from 10.00 am until 5.00 pm;
(g)10.00 am Saturday, 6 January 2018 to 5.00 pm Sunday, 7 January 2018;
(h)Wednesday, 24 January 2018 from 3.00 pm until 7.00 pm;
(i)subsequent to the resumption of school term in 2018 the child spend time with the mother:
(i)during each school term on each alternate weekend from after school (or 3.00 pm if a non-school day) Friday until the commencement of school the following Monday (or 9.00 am if a non-school day) commencing on the first weekend after the resumption of school term;
(ii)for the first half of each school holiday period at the conclusion of terms 1, 2 and 3 from the last day of required school attendance until 5.00 pm on the second Sunday of such school holiday period.
It is noted for the sake of clarity that Orders (8) to (12) inclusive made on 8 December 2017 continue pending further order.
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 Dennis & Dennis and Anor 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 PARRAMATTA |
FILE NUMBER: PAC 4089 of 2014
| Ms Dennis |
Applicant
And
| Mr Dennis |
First Respondent
And
| Ms B Dennis |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The application for determination concerns further interim parenting arrangements for the children C now seven years of age, D now 17 years of age and E now 14 years of age.
On 23 November 2017 the mother filed an Application in a Case seeking orders varying interim parenting orders made on 3 August 2017 relating to the children.
The Application in a Case primarily sought orders that the child C live with the mother and that the mother have sole parental responsibility for the child and that the child spend no time with the paternal grandmother.
As the matter developed, the issue for determination became clearer in that it related to an expansion of the applicant mother’s unsupervised time with the child C.
In support of the orders sought by her, the mother relied upon her affidavit filed 23 November 2017.
The respondent paternal grandmother relied upon her Response to the mother’s Application in a Case filed 7 December 2017 together with her affidavit filed the same day.
Context
These proceedings commenced in August 2014 at which time the mother filed an Initiating Application seeking final orders as to parenting and property settlement.
Final property orders were made by consent in December 2015 that, in summary, provided for the father to pay to the mother the sum of $340,000.00 and in consideration of that payment the mother was required to transfer to the father her interest in the former matrimonial home at Suburb F, New South Wales. Those orders were implemented.
As at November 2014 the mother had not seen the children for seven months.
On 9 September 2015 interim parenting orders were made by consent that relevantly, in summary, provided:
a)that the children live with the father;
b)that the parties keep each other informed as to their residential address, email address and telephone contact numbers;
c)that each party be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners;
d)that Dr G be appointed for the purposes of the preparation of a Part 15.5 single expert report;
There was no order made for the children to have contact with or spend time with the mother.
Subsequently on 20 July 2016 following the release of a single expert report from Dr G, trial directions were made requiring the mother and father to file their trial material by no later than 18 November 2016 with proceedings thereafter listed for a compliance check before a Registrar on 5 December 2016.
The single expert report from Dr G raised issues in relation to the mother’s mental health and in relation to the parental conflict.
Subsequently on 5 April 2017 interim orders were made by consent that provided for:
a)the mother and father to do all things necessary to arrange for the children to be engaged in the Anchor program conducted by Unifam;
b)the mother to have supervised time with the child C at the H Contact service.
There was significant delay in the mother commencing supervised time with the child and arrangements were made for such time to take place at J Group, Suburb K.
Regrettably, on 22 May 2017 the father took his own life. Final hearing dates for this matter in early July 2017 were vacated.
Subsequent to the father’s death the children continued to reside with the paternal grandmother.
On 3 August 2017 an order was made joining the paternal grandmother as second respondent in the proceedings. Previous parenting orders were discharged. Otherwise, further interim orders were made, in summary, as follows:
a)that the child C spend supervised time with the mother for two hours per week at the mother’s expense and for that purpose the parties were to contact H Contact service and J Group Children’s Contact Service with supervision to commence at the service that could offer the earliest available time;
b)that the parties attend upon Dr L for the purposes of family therapy;
c)that the paternal grandmother have sole parental responsibility for the children provided always that as to aspects of such responsibility she be required in a timely manner to consult with the mother to seek her view;
d)that the children live with the paternal grandmother.
A placement for the child C to spend supervised time with the mother was not available at J Group, Suburb K until December 2017. The parties, by agreement, arranged for a commercial supervision agency, M, to provide supervision with time commencing on 6 November 2017.
It is common ground between the parties that it is the strong wish of the older children at this stage to spend no time and have no contact with their mother.
Parenting proceedings were relisted before the Court on 30 November 2017 on the application of the Independent Children’s Lawyer (“ICL”). On that date the mother’s present Application in a Case was relisted for hearing on 8 December 2017.
It was common ground that the issue for determination was an appropriate and child focused expansion of the mother’s unsupervised time with the child with the mother abandoning her interim application for the child to live with her.
The mother’s application was heard on 8 December 2017 and on that date the Court made orders and directions as follows:
1.The Respondent paternal grandmother file and serve a short outline of submissions as to the interim issue for determination by no later than Wednesday, 13 December 2017.
2.The Independent Children’s Lawyer file and serve a short outline of submissions as to the interim issue for determination by no later than Wednesday, 13 December 2017.
3.The Applicant mother file and serve any short outline of any supplementary submissions as to the interim issue for determination by no later than Wednesday, 13 December 2017.
BY CONSENT, IT IS ORDERED THAT
Updated report from Dr G
4.Pursuant to Part 15.5 of the Family Law Rules [Dr G], Psychiatrist, of …, NSW … phone: … (‘the Expert’) is requested to prepare a report his report to the Court of 30 May 2016, and each of the Applicant mother and the Respondent paternal grandmother shall:
4.1attend all appointments with the Expert as directed by him;
4.2ensure that the children attend all appointments with the Expert as directed by him;
4.3use their reasonable best endeavours to ensure that any other person required to be interviewed by the Expert attends all appointments with the Expert as directed by him;
4.4comply with all reasonable directions and requests made by the expert to assist him in the preparation of his report.
IT IS FURTHER ORDERED THAT
5.In the first instance, the mother pay by way of contribution to the cost of the updating single expert report by [Dr G] the sum of $4,950.00 with those funds to be paid by the mother to the single expert by no later than Tuesday, 7 March 2018 noting that the estimated cost of the single expert report is $8,250.00 and that the Independent Children’s Lawyer will make application for a legal aid grant in the sum of $3,300.00 by way of a contribution on behalf of the paternal grandmother to the costs of the report.
6.Leave is granted to the Independent Children’s Lawyer to re-list the matter as to the funding of the expert report on short notice by application to the Court in Chambers in appropriate circumstances.
7.Pending judgment, the Applicant mother spend unsupervised time with the child C as agreed between the Applicant mother and the Respondent paternal grandmother as follows:
7.1On the following days from 10.00 am until 5.00 pm:
7.1.1Saturday, 9 December 2017;
7.1.2Saturday, 16 December 207;
7.1.3Saturday, 23 December 2017;
7.1.4Wednesday, 27 December 2017;
7.1.5Wednesday, 3 January 2017.
7.2 On the following days from 3.00 pm until 7.00 pm:
7.2.1Wednesday, 20 December 2017; and
7.2.2Wednesday, 24 January 2017.
7.3 On 25 December 2017 from 2.00 pm until 7.00 pm.
BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT
8.For the purposes of the Applicant mother’s time provided for in these Orders, for all time that is not scheduled to commence or conclude at the commencement or conclusion of a school day, changeover shall take place at the Red Rooster Restaurant at [Suburb K]; with all other changeovers to occur at the child’s school.
9.Without admissions the Applicant mother be restrained by injunction from bringing the child into contact with the maternal uncle known as “[Mr N]” at any time and in any form.
10.The Applicant mother have telephone contact with the child as follows:
10.1Each Thursday at 7.00 pm, with calls to be initiated by the Applicant mother to the Respondent paternal grandmother’s mobile telephone;
10.2At any other time upon the child’s request; and
10.3The Respondent paternal grandmother shall use her best efforts to afford the child privacy during these calls, and use her best efforts to ensure the child’s siblings do not interrupt or interfere with those calls.
11.If either of the Applicant mother or the Respondent paternal grandmother intend to take [C] for any overnight periods outside of the Greater Sydney and [Region O] areas they will not less than 48 hours prior to such travel provide the other party with details of the intended destination and the duration of such travel.
12.The Applicant mother and the Respondent paternal grandmother shall forthwith advise each other of their current residential address, and mobile telephone number, and advise the other within twenty-four (24) hours of any change occurring.
13.Judgment be reserved following receipt of submissions as ordered.
The mother’s evidence
Thus the present application focuses on arrangements in relation to the youngest child C noting that pursuant to the orders set out above the mother is to commence spending unsupervised time with the child.
The mother is presently 35 years of age. The paternal grandmother is 74 years of age and the mother asserts that the paternal grandmother is in poor health.
The mother expresses concern that the paternal grandmother has failed to promote and encourage the child C’s relationship with her and that the paternal grandmother does not provide adequate care for the child C.
It is readily apparent from the supervisor’s report of the failed contact visit on 6 November 2017 that the child’s relationship with the mother was significantly disrupted and he was resistant to contacting or spending time with the mother. The paternal grandmother did little or nothing to encourage the child’s relationship with the mother.
Again at the next supervised contact visit on 10 November 2017 the paternal grandmother expressed negativity in relation to the mother saying in the presence of the supervisor “he doesn’t even want to see her”. Notwithstanding, the supervisor was able to facilitate time between the child and the mother in the absence of the paternal grandmother. The supervisor’s report notes a developing engagement between the mother and the child. The child, however, made concerning remarks to the supervisor including: “can you say I cried”, and “Nan told me to cry so I don’t have to see mum”.
In the report of the supervised contact the supervisor noted that the mother and the child “interacted positively and all conversations were age-appropriate”. C voiced his fears for getting in trouble for seeing his mum. The parental grandmother spoke for C telling the supervisor he does not want to see his mum.
The family therapist Dr L provided a short memo dated 16 November 2017 to the Court. The therapist reported that the paternal grandmother was disparaging of the child’s time with the mother and had informed the therapist that the child did not want to see the mother, asserting that the mother had spent most of her time with the child on her telephone. The therapist noted that this was a very different report to that provided by the mother which was consistent with the supervisor’s report.
The next occasion for contact was on 17 November 2017. Once again the interaction between mother and child was warm, engaging and appropriate. The supervisor reported that the mother and C appeared happy and comfortable together. The mother spoke and interacted with C throughout, keeping all conversations positive and age-appropriate. C did not want to leave the contact and wanted “one more turn with [the mother]” on some of the equipment. The paternal grandmother was quite rude to the supervisor and the child was no longer smiling in the paternal grandmother’s presence.
The mother has obtained her own independent accommodation in the Suburb K area close to the children’s school. It provides three-bedroom accommodation with all the usual facilities and amenities. The mother has set up a room for the child C and purchased toys, activities and clothing for him.
The mother says that she has flexible employment and the support of her extended family. On weekends and during nonworking hours she is fully available for the child and his care and during school holidays will take leave from her employment and obtain the assistance of family should the child be in her care during such periods.
The mother asserts that she is in good health and not taking any regular medication. She plays sport regularly and engages with her large social and family network.
The paternal grandmother’s evidence
The paternal grandmother relied upon her affidavit filed 7 December 2017.
The paternal grandmother has been the primary carer for the three children since the death of her son in 2017.
The child C sleeps in a separate bed in her room. She has made application to Housing NSW for a four-bedroom home in the same area.
The paternal grandmother has had significant involvement in the lives of the three children.
She expresses significant concern for the child C’s psychological well-being if he were to be separated from her and his siblings to live with the mother. In this regard it is noted that this is no longer the mother’s interim application.
The paternal grandmother asserts that the child C is distressed by having to spend time with his mother and on occasions has been physically ill. However, she proposes changes be made to the child’s time with the mother that will “seem more normal and that his stress will reduce”. In this regard she proposes and has agreed to interim orders that the child’s time with the mother be unsupervised and that changeovers be affected at their respective homes.
The paternal grandmother expresses confidence that if C was to speak to the mother by telephone she would be able to keep the older children from interfering with or interrupting those calls and will ensure that the child has privacy.
The paternal grandmother rejects any suggestion that the child is at risk of psychological harm in her care, this notwithstanding objective evidence as to her reluctance to promote the child’s relationship with the mother.
The child’s school reports annexed to the paternal grandmother’s affidavit for semester 1 2017 indicate that the child is progressing satisfactorily at school with the report noting that the child “takes a quiet approach to his learning and is a valued member of the class”. Otherwise, it is reported that the child “is developing his confidence in social situations and can work cooperatively with peers during group work. He is a well-mannered and thoughtful classmate to his peers and his teachers.” The child’s semester 2 report: Exh “C” is equally glowing. His settled circumstances at school perhaps reflect his present arrangements residing with his siblings and in the home of the paternal grandmother.
Objective evidence
Dr P
The mother provided a medical report from her general practitioner Dr P dated 4 December 2017: Exh “B”. From October 2015 onwards the mother was seen frequently by the general practitioner in conjunction with her psychologist Mr Q. The mother was prescribed antidepressant medication until mid-March 2017 and Dr P reports that she is coping well without any medications, having implemented the strategy suggested by her psychologist. It is reported that great improvements in the mother’s emotional state and mental health have been observed with more recent objective assessment revealing that anxiety or depression in the mother was unlikely.
Dr G
Dr G provided a single expert report earlier in the proceedings in late May 2016. The report, of course, predates the unfortunate death of the father.
It is readily apparent from the single expert report: Exh “D” that the parental relationship and the parental capacity of both parents was at best problematic and at worst would expose the children to significant and serious family violence.
However, it is otherwise apparent that the children’s views as expressed in the single expert report have been the subject of some coercion. The single expert opines:
107.[D] gave a dramatic account of her mother’s misdemeanours and her justification for having no further contact with her mother. She was strongly supported in these views by her father and paternal grandmother, who encouraged her verbally and emotionally abusive behaviour towards her mother during the assessment. She was vehement in her lack of respect for the assessment process and was supported by her father and paternal grandmother in disrupting her mother’s contact with her younger siblings. This was consistent with her stated position and opposition to her mother. The rigidity and intensity of such views should be understood in the context of her developmental vulnerability. Although not raised by either parent, the documentation perused identified a diagnosis of Autistic Spectrum Disorder at the age of nine. She had experienced a disrupted developmental experience in the context of her exposure to parental conflict, parental mental illness and abandonment by her mother. She strongly identified with her father’s view that the mother was to blame for all the family problems. These factors were significant in understanding [D’s] preoccupations and hostility towards her mother. Further, [D] had experienced significant emotional and behavioural disturbance herself, with fluctuating depressed mood and suicidality. Thus, despite being almost 16 years of age her views need to be considered with caution. That said, given her age her views should be respected.
108.[E] was emotionally vulnerable given his exposure to these family dynamics. He was hostile and rejecting of his mother given his life experience and the strongly held views shared with the paternal grandmother, his father and older sister. At the age of 13, it is not possible to enforce contact when he is adamant in his refusal to engage with his mother. His statements were consistent with the interviews with the school counsellor as identified in the documentation perused.
109.[C] was five years of age. It was evident that he had been exposed to a disrupted developmental experience. He was seen to be preoccupied with characters and features of video games. This was indicative of his obsessive nature and inappropriate exposure to gaming under his father’s watch. He was seen to echo the words of his older siblings and father and paternal grandmother in vilifying his mother. Limited weight should be given to his expressed views given the positive interactions observed with his mother prior to [D’s] dramatic intervention.
110.Based on the manner and content of the children’s account and communication with each other I formed the view that the children had been influenced by the father. When subsequently interviewed he indicated that he knew what they had told me which confirmed this impression. Whilst this did not mean that they had not experienced what they described, it was evident that the father had actively supported their antipathy and rejection of their mother.
It is also readily apparent from the evidence before the Court, such as it is, in the context of this interim hearing that the parental grandmother also actively supports the children’s antipathy and rejection of the mother. As such it is important that as best can be done the relationship between the mother and the youngest child be preserved and promoted.
At the time of the single expert report interviews in March 2016 the single expert, in considering the capacity of the parents, made the following assessment and observations of the mother, father and paternal grandmother:
120.The assessment conducted and documentation perused identified that both parents had vulnerabilities which impacted upon their parenting capacity. In response to the parental conflict the mother had repeatedly abandoned the children, leaving them in their father’s care despite his incapacity. She viewed herself as a victim and failed to take responsibility for her actions. Following a minor altercation with [D], paternal grandmother and father during this assessment, she contacted the Police to have the assault by the paternal grandmother recorded. Her own emotional vulnerability overrode her capacity to recognize that the children’s emotional needs were compromised by this intervention. The altercation interrupted her engagement with her two sons. Although she readily identified the children’s emotional and intellectual needs, expressing appropriate concern for their welfare, she lacked the capacity to remain present given the chronic family dysfunction. Her vulnerable mood, as identified on history, mental state examination and medical records, was underpinned by personality vulnerabilities, which impeded her ability to provide consistent care for the children. The unresolved parental conflict was accepted as a significant contributing factor.
121.The father’s capacity to care for the children was impaired by his mental state and personality structure. The father had experienced longstanding emotional and physical vulnerabilities. Although he focussed on physical incapacities during the assessment, his medical notes revealed recurrent depression, anxiety and suicidality in the context of a Chronic Pain Syndrome secondary to a back injury sustained in a motor vehicle accident in 2011. He had a premorbid obsessive nature as reported by the mother and evidenced by his preoccupation with Star Wars and Cosplay. He lacked the capacity to respond appropriately to the children’s emotional needs, as evidenced by his request for his 13 year old son to support him as he complained about the mother. He lacked the capacity to prioritise the children’s emotional needs over his own. His medical records identified his difficulty in attending to the children’s developmental experience. The school had identified him to struggle in providing adequate care for the children in a notification to Family and Community Services in 2014. Despite the evidence of neglect in this documentation, the father viewed himself as a highly attentive caregiver who prioritised the children’s needs. This was supported by the paternal grandmother and school counsellor but inconsistent with this assessment.
122.The paternal grandmother had played a dominant caring role for the children, caring for them in the absence of their mother and father’s incapacity. It was thus unfortunate that she angrily refused to participate before being held in Police custody following an altercation with the mother. She subsequently returned for an additional interview. This confirmed her support of the father and hostility towards the mother.
As to the mental health circumstances of the mother and father at the time of interviews in early 2016, the single expert concluded:
132.Both parents were identified to have significant mental health issues. The mother was seen to have a probable Personality Disorder dating back to her disrupted developmental experience in the context of parental separation. Her exposure to separation and loss had left her vulnerable at a critical stage of her development. She had thus established a dependant relationship with an older partner, which amplified her vulnerable self-esteem. Subsequently she had suffered Anxiety and Depression, reportedly precipitated and perpetuated by the controlling relationship with her partner.
133.The father had experienced longstanding significant symptoms of Depression and Anxiety, with associated Suicidality and self-harm, in the context of his Chronic Pain Syndrome. He remains vulnerable in the context of his poor physical health. He had partially benefitted from psychiatric and psychological intervention, including high dose Antidepressant and Analgesic medication. He was unable to empathise with the mother’s experience. His obsessive preoccupations were suggestive of an Autistic Spectrum Disorder but the developmental history obtained from the paternal grandmother was inconsistent with this.
Otherwise, the single expert expressed the view that:
140.The children were identified to be at risk of psychological harm in the care of both parents. The mother had been an inconsistent figure in their lives, unable to provide a consistent loving presence given her own personality and psychological vulnerability and the unresolved conflict with the father. The father’s parenting capacity was compromised by his chronic physical and mental health difficulties. He had been supported in the care of the children by the paternal grandmother. Neither the father nor paternal grandmother recognised the need to support their relationship with their mother.
And concluded:
142.Based on the children’s presentation, school reports, account of the father and paternal grandmother and the school counsellor I formed the view that the children were receiving adequate care in the father’s household. Nonetheless, there was an indication for intensive family intervention and psychological support. The children’s continued exposure to unresolved family conflict and undermining of their relationship with their mother was not in their best interests. That said, given the views of [D] and [E] placement in their mother’s care was unviable. The mother had previously accepted this in discussions with her GP (as identified in the clinical notes) and had focussed on the maintenance of her parental relationship with [C]. This was viewed as a realistic response to the current family circumstances. I would recommend that handovers for any contact occur at school and not involve the father, paternal grandmother or siblings as conflict is likely to result.
The ICL
The ICL supported orders that, in summary, provided:
a)that previous orders in relation to the mother’s supervised time with the child C be discharged;
b)that until the commencement of school term in 2018 the child C spend unsupervised time with the mother as reflected in the interim orders consented to by the parties on 8 December 2017;
c)that the child spend overnight time with the mother on 30 December 2017, 6 January 2018 and weekend time on 26 January 2017 ;
d)that subsequent to the resumption of school term in 2018 the child C spend time with the mother during school term from after school (or 3.00 pm on non-school days) Friday until the commencement of school (or 9.00 am on non-school days) on the following Monday and for the first half of each school holiday period at the conclusion of terms 1, 2 and 3 from the last day of required school attendance until 5.00 pm on the second Sunday of such school holiday period.
Otherwise, orders sought by the ICL as to changeovers and the mother’s telephone contact with the child C were made by consent on 8 December 2017.
Interim Parenting
In Marvel v Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120. As has frequently been emphasised 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. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“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.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… 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 George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…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.
In Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC 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) FamCAFC 42.
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 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
51. …
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
THE LAW
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
In the context of this interim hearing there is no issue as to parental responsibility as interim orders were made on 3 August 2017 that the paternal grandmother hold such responsibility pending further order.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
It is clear in the context of the evidence available for this interim hearing that there is a significant risk to the mother’s relationship with the child C. The single expert certainly had no doubt as to such a risk.
It is otherwise clear that when not under the influence of the paternal grandmother’s antipathy towards the mother, the child C enjoys a warm and comfortable relationship with his mother as reported in the context of supervised time.
The mother’s mental health circumstances as opined by her treating general practitioner have improved significantly and she is medication free.
It is clear that this primary consideration when evaluated in conjunction with the protective considerations set out below is substantially determinative of the mother’s present application for an expansion of unsupervised time with C.
Section 60CC(2)(b) – need to protect
This factor is of significance. The mother on her current presentation presents no risk to the child by reason of her mental health history. The evidence in this regard is uncontroversial.
The protective concerns raised by this consideration mainly focus on the psychological risk to the child in the destruction of his relationship with his mother as a consequence of the ongoing antipathy towards the mother expressed by the paternal grandmother in her actions and comments in the presence of the child and to the independent supervisor. There is a significant suspicion that the views of the older children are, as expressed by the single expert, as a consequence of the antipathy and antagonism of the father and the paternal grandmother towards the mother.
This consideration is clearly indicative of there being an expansion of the mother’s time with the child C.
The two primary considerations are of themselves determinative of the present interim application.
The Additional Considerations
The Court is also required to consider the additional considerations, comprised in s 60CC(3) of the Act.
Section 60CC(3) sets out the additional considerations as follows:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
A detailed consideration of the provisions of s 60CC(3) of the Act awaits the resolution of many contested factual issues at final hearing.
In the context of the matters discussed above, little weight can be afforded to any asserted expressed views by the child C. The observations as to his warm relationship with the mother during supervised visits is sufficient to indicate that a more fulsome relationship with his mother is appropriate.
The nature of relationships as between the mother, the children and the paternal grandmother is touched upon above but a detailed consideration awaits final hearing as do many of the other additional considerations.
There has been family violence to which the children have been exposed in the context of the relationship between the mother and their late father. There are no present allegations of violence.
In all of the circumstances it is appropriate that further orders be made as to the mother’s unsupervised time with the child C as contended for by the ICL.
In the event that the paternal grandmother continues her oppositional behaviour to any of the children having a relationship with the mother then it may well be appropriate to reconsider the child C’s residence circumstances well prior to any final hearing.
Orders will be made in the best interests of the child as set out above.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2017.
Associate:
Date: 20 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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