Denton & Denton (No 2)
[2024] FedCFamC1F 144
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Denton & Denton (No 2) [2024] FedCFamC1F 144
File number(s): SYC 1695 of 2021 Judgment of: ALTOBELLI J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks increased time with the child including overnight time – Where the mother is willing to increase time without overnight time – Where the mother cannot afford to obtain a mental health assessment – Order for the child’s time with the father to be gradually increased, including overnight time – Order for the mother to endeavour to obtain mental health assessment – Order for the valuation of properties – Trial directions made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 5 March 2024 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Redline Legal Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1695 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DENTON
Applicant
AND: MS DENTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The matter is listed for mention on 9 July 2024 at 9am for the purposes of reviewing the progress of the implementation of the orders made today and to ensure the matter is ready for final hearing.
2.Order 16 made on 14 April 2023 is varied to read:
16.Each party shall forthwith do all things and sign all documents necessary to draw down or further borrow sufficient funds on the mortgage over the property at B Street, Suburb C, New South Wales to pay the costs of the mother’s mental health assessment to be prepared pursuant to Order 9 and the updated single expert report to be prepared pursuant to Order 12 herein.
3.The respondent mother (“the mother”) is to do all things necessary to seek a grant of legal aid for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
4.The mother is to do all things necessary to make enquiries into the Attorney General’s Disbursement Scheme for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
5.In the event that the parties do not agree to the sale of the former matrimonial home at B Street, Suburb C New South Wales (“the Suburb C property”), unless they can reach agreement about the value of the Suburb C property, by no later than 30 June 2024 the parties shall agree to the appointment of a single joint expert for the purposes of valuing the same. The cost is to be borne by each party equally.
6.In the event that the parties do not agree to the sale of the assets of the Denton Self‑Managed Super Fund (“the Super Fund”), unless they can reach agreement about the value of the Super Fund, by no later than 30 June 2024 the parties shall agree to the appointment of a single joint expert for the purposes of valuing the same. The cost is to be borne by each party equally.
Trial directions
7.By no later than 4pm on 2 September 2024, each party is to file and serve any amended Application or Response on which they seek to rely.
8.By no later than 4pm on 9 September 2024, each party is to file and serve one consolidated affidavit in support of the orders sought by them, together with any other witnesses’ affidavits.
9.By no later than 4pm on 9 September 2024, each party is to file and serve an updated financial statement.
10.By no later than 4pm on 16 September 2024, each party is to serve exhibits to affidavits and tender bundles of all documents that might be tendered or relied upon in cross‑examination on each other, and provide an electronic copy of the same to my Associate.
11.In respect to exhibits to affidavits and tender bundles, only documents which are successfully tendered during the hearing shall be in evidence.
12.By no later than 4pm on 23 September 2024, the parties are to have served objections to evidence on each other.
13.By no later than 4pm on 27 September 2024, the parties shall have conferred, settled and forwarded to my Associate a document in electronic form setting out:
(a)Those parts of the evidence which shall not be read; and
(b)Those parts of the evidence to which an objection is maintained and the reason for that objection.
14.By no later than 4pm on 23 September 2024 the parties shall have conferred, settled and forwarded to my Associate in electronic form:
(a)A joint balance sheet; and
(b)A joint trial plan which allows for the trial to be completed within five days.
15.By no later than 4pm on 23 September 2024, the mother and the applicant father (“the father”) are to file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
16.By no later than 4pm on 26 September 2024, the Independent Children’s Lawyer is to file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
17.No further subpoenas be issued by either party without leave of the Court. Subject to any objection being raised by any person to whom a subpoena has been issued, photocopy access be granted to the parties’ legal representatives and the Independent Children’s Lawyer for the purposes of providing exhibits to affidavits and provisional tender bundles.
18.By no later than 4pm on 27 September 2024, each party is to file a notification as to costs pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (including complying with rule 12.06(2)).
19.Leave is granted to the parties to apply to relist the proceedings on seven days’ notice to deal with any issues arising out of the implementation of the orders made on today’s date, or anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
20.The child, X, born 2019 (“the child”), spend time with the father as follows:
(a)For a period of 8 weeks from the date of these orders each Sunday from 10.00 am until 4.00 pm, with the first such period to commence on 10 March 2024;
(b)On conclusion of the above period for a further period of 12 weeks each week from 4.30 pm on Friday until 4.30 pm on Saturday, with the first such period to commence on 30 April 2024;
(c)Thereafter, each alternate weekend from 4.30 pm on Friday until 4.30 pm on Sunday, with the first such period to commence on 23 July 2024;
(d)On Father’s Day from 10.00 am until 5.00 pm should such day not fall on the father’s weekend pursuant to these orders; and
(e)At such other dates and times and for such other periods as agreed to by the parties in writing.
21.In the event that Mother’s Day falls on a weekend when the child would spend time with the father pursuant to these orders, the father’s time with the child is to be suspended from 10.00 am on Mother’s Day for the remainder of the weekend NOTING THAT Mother’s Day in 2024 will not fall on a day when the child would spend time with the father pursuant to these orders.
22.Whenever possible, changeovers shall take place at the child’s day care/pre-school and should this not be possible at a public venue agreed to by the parties in writing and in the absence of such agreement at the McDonalds restaurant closest to the mid-point to the parents’ respective residences.
23.The parents may each be accompanied at changeovers by no more than one adult person.
24.The mother shall do all things necessary to ensure that the child continues to attend D Preschool noting that the child is presently attending such pre-school from 8.30 am until 4.30 pm on Monday to Friday inclusive.
25.The mother shall forthwith attend upon Mr E, clinical psychologist, for the purpose of a mental health assessment, and she shall provide a copy of his assessment report to the father or his legal representation (whichever is applicable) and to the Independent Children’s Lawyer.
26.The two single expert reports prepared by Ms F in these proceedings along with a copy of these orders be released to Mr E by the Independent Children’s Lawyer.
27.On a without admissions basis, the mother and the father shall be restrained from:
(a)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the mother, the father, or any other member of either parent’s household;
(b)Denigrating the other or members of the other parent’s family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
(c)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.
(d)Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
(e)Consuming any illicit substances during any period that the child is in their care and/or bringing the child into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during the time that the child spends with the parties.
28.The parents shall each ensure that they shall take the child to any and all of her extracurricular activities should such activities fall during a period when the child would be living or spending time with such parent.
29.Both parents are authorised to communicate with the child’s pre-school/day care provider, health care/medical practitioners and extra-curricular activities organisers and obtain such information from those persons/organisations that parents are ordinarily permitted to obtain, at the requesting parent’s expense.
30.Both parents are authorised by these orders to attend any pre-school events or activities in respect to the child which parents normally attend.
31.In the event that they have not already done so the mother and the father shall forthwith enrol in and complete a parenting after separation programme such as offered by O Family Services, R Family Services or S Family Services.
32.The mother and the father shall continue to engage with their respective treating psychologist(s) and treating health professionals until such time that such psychologist(s) or health professionals considers it to no longer be necessary.
33.The Independent Children’s Lawyer shall be authorised by these orders to speak and communicate with the child’s pre-school and or speech pathologist.
34.A copy of these orders be provided by either parent to the child’s pre-school/day care provider, D Preschool.
THE COURT NOTES THAT:
A.Should the parties manage to further borrow funds in accordance with Order 16 made 14 April 2023, amended by the orders made today, such further borrowings are to be considered by the trial judge at the final hearing pursuant to s 79 of the Family Law Act 1975 (Cth).
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 Denton & Denton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I provide the following ex-tempore reasons for judgment in this matter. This matter relates to a child X born 2019. X is four years old. She currently lives with her mother (“the mother”) and spends time with her father (“the father”) with supervised changeover. This matter has been in the Court system since 2021. It is a long running matter. It seems to have come before the Court many times before the matter came into my docket. It is listed for final hearing before me on 30 September 2024 for both property and parenting. That, of course, is if the parents do not manage to resolve this themselves.
My impression of this matter, derived from not just the time that the matter has been in my docket, and thus the interaction between all the parties, their legal representatives and myself, but also informed by the material before the Court, is that the parents experience a palpable lack of trust and inability to communicate with each other.
I had the benefit of quite a substantial amount of material before me today. Each of the parties confirm that the orders that they are seeking were based on the case outlines that they submitted with the significant amendment on the part of the mother that she now proposes there be weekly time, and those changes are noted.
I confirmed with the solicitor for the mother, the Independent Children’s Lawyer and the father, who represented himself, that the orders that they sought and the material they relied on are contained in the case outlines. I have had regard to all those documents. Where a document is referred to, they will become a tender. The significant documents in this regard represent the expert evidence that is referred to in Part E of the Independent Children’s Lawyer’s case outline, and, significantly in the mother’s case, the G Service comprehensive occupational therapy evaluation that appears to be dated 16 January 2024. Each of those documents will be treated as tenders and will come into evidence.
The issue for the Court is what time X should spend with the father and under what circumstances. It is common ground that X’s time with the father no longer needs to be supervised. It is common ground that X’s time with the father should increase. The contentious issues are to what extent and whether it should include overnight time.
THE APPLICABLE LAW
The applicable law is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
DISCUSSION
A number of issues are raised by the material before the Court, all of which have informed the orders that I have made today. The history of the matter is, I am satisfied, accurately reflected in the chronology that is contained in Part D of the Independent Children’s Lawyer’s case outline:
D Chronology
[1979]Date of birth of the father (presently aged 44 years).
[1981]Date of birth of the mother (presently aged 42 years).
[2008]Date of birth of the child [H] being the maternal half-sibling of [X] (presently aged 15 years).
[2009]Date of birth of the child [J] being the paternal half-sibling of [X] (presently aged 15 years).
[…] 2017 Parties commenced to live together.
[2018]Date of marriage.
[2019]Date of birth of the child [X] (presently aged 4 years).
25.11.20 Date of final separation.
10.03.21 Date of filing of initiating Application by the father.
18.03.21First return date of proceedings. Directions made for filing documents. As at this date the father had not spent any time with [X].
14.06.21Date of hair follicle test results in respect to the father. Test results negative.
20.04.21 CDC ordered and orders made for the appointment of an ICL.
23.05.21 Date of filing of Amended Initiating Application by the father.
16.06.21Proceedings listed for first return date call over. Directions and Notations made by the court.
25.06 .21 Interim consent orders made which provide for the child to live with the mother and spend supervised time with the father for 2 hours each week either on Saturday or Sunday. Various other ancillary orders made including drug testing, attendance at programmes, mental health assessment of each of the parties and the obtaining of a paediatric assessment report in respect to the child.
06-07.2021 Father commenced to spend telephone/video time with the child.
22.08.21 Date of CDC memorandum prepared by Family consultant […].
21.07.21 Fathers drug test results negative.
22.07.21 Mothers drug test results negative.
23.07.21 Date of mental health assessment in respect to the mother prepared by [Ms K].
12.08.21 Date off paediatric assessment in respect to [X] prepared by [Dr L].
18.08.21 Date of mental health assessment in respect to the father prepared by [Mr M].
08.09.21 Procedural hearing. The court noted that the father had not yet commenced to spend time with the child due to COVID related issues in respect to the contact centre.
16.09.21Orders made for the appointment of [Ms F] as the single court expert.
07.10.21 Hair follicle test results in respect to the father negative.
15.10.21 Date of filing of Amended Response by the mother.
11.2021Father commenced to spend supervised time with the child for 1.5 hours each fortnight supervised by [N Contact Centre].
01.11.21 Date of single expert report prepared by [Ms F].
10.11.21 Single expert report released to the parties.
18.11.21Orders made for the parties to attend a conciliation conference (property) and a FDR conference (parenting).
24.12.21Father spent time with the child supervised by the mother. Father alleges that the mother made false allegations against him following this visit.
03.03.22 Conciliation conference.
23.03.22 Orders made for a court-based FDR conference.
25.07.22Orders made for the single expert report to be released to the father's psychologist, [Mr E].
29.08.22Certificate of completion of men’s behaviour change programme completed by the father […].
08.09.22Date of mental health assessment of the father prepared by [Dr P].
11.2022Father ceased spending time with the child due to the non-availability of [N Contact Centre].
18.01.23 Date of filing of Application in a Proceeding by the father.
01.02.23 Proceedings listed in chambers.
12.03.23 Part 1 of court-based FDR conference.
23.03.23 Part 2 of court-based FDR conference. No agreement reached.
14.04.23Interim hearing. Interim orders made by consent in respect to some issues including for the commencement of supervised time initially for 1 hour each Sunday and after 3 weeks to increase to 3 hours each Sunday. Time to be supervised by a supervision service. Various ancillary orders made by the court. Judgment reserved in respect to ongoing time.
19.04.23Judgment delivered in respect to interim hearing on 14 April 2023. Orders provide for the child's time with the father to extend to 10am until 2pm each Sunday with changeovers to be supervised.
29.05.23 Date of filing of Contravention Application by the father.
Late August
2023Father ceased spending with the children due to the mother’s non‑compliance with completing intake procedures of the contact service.
11.09.23Proceedings referred to Division 1 Case management Judge by His Honour Chief Justice Alstergren.
13.09.23[Q Contact Centre] advised that they could not carry out changeover supervision.
25.09.23Date of filing of Application in a Proceeding by the father (subject of interim hearing) seeking time with the child and for the mother to undertake a mental health assessment.
26.09.23Date of filing of Application in a proceeding by the father seeking orders for the provision of his updating affidavit to the single court expert.
10.10.23 Date of filing of Contravention Application by the father.
30.10.23Orders made by consent for the filing of updating affidavits and their provision to the court expert, injunctive orders and various ancillary orders. Father's Application in a proceeding filed on 26 September 2023 otherwise dismissed. Application in a proceeding filed on 25 September 2023 by the father adjourned to 11 December 2023.
01.11.23Date of filing to Response to Application in a proceeding on behalf of mother.
02.11.23 Directions made in respect to the father’s Contravention Application.
11.12.23Directions hearing listed before His Honour Justice Altobelli. Father's Application in a Proceeding adjourned to 24 January 2024 and for final hearing for 5 days commencing on 30 September 2024. Next listing on 24 January 2024 to consider the recommendations of the single court expert in her updating report.
17.12.23Father re-commenced spending time with [X] from 10am until 2pm each Sunday with changeovers only being supervised by "Supervised contact workers".
20.12.23 Date of updating single expert report prepared by [Ms F].
09.01.24 Single court expert report released to the parties.
24.01.24Directions made by the court for an interim hearing in respect to the father’s Application in a proceeding filed on 25 September 2023. The court considered the recommendations of the single court expert in her updating report.
29.01.23 Date of filing of Amended Application in a proceeding by the father.
(As per the original)
When one studies that chronology, particularly in conjunction with the Court’s own record of this matter, it is an unfortunate reality that X’s time with the father, and thus the development of her relationship with the father, has been hindered by a number of things.
When this matter started, we were still under the impact of the COVID-19 pandemic, and I apprehend that some of the delays in implementing orders for supervised time were attributable to that. A further delay arose due to the non-availability of a contact centre. There are allegations, and indeed there appear to be concerns based on the material, that perhaps the mother was, at times, less than responsive and less than enthusiastic in implementing some of the orders for the father to spend time. In any event, when this matter came into my docket in its more recent history, towards the end of last year, things got back on track. Even based on the material that is advanced by the mother, X’s time with the father seems to be going reasonably well. This is reflected in the fact of the mother’s own proposal.
The issues are, really, the impact on X of extending that time. I think for present purposes, there are two significant issues that have been identified by the Independent Children’s Lawyer, by Mr Singh on behalf of the mother and, indeed, by Ms F, the single joint expert in this case. The first is the impact of change on X, particularly in circumstances where the evidence suggests that she does have some special needs. These are referred to in the mother’s affidavit but also discussed in the comprehensive occupational therapy evaluation. The orders that I have made reflect a much more gradual implementation of the evolution of her time with the father. This is more conservative than that suggested by the Independent Children’s Lawyer, which, in itself, was more conservative than that suggested by Ms F.
The second issue was about the father’s parenting capacity and his ability to respond adequately to the needs that X has. That factor is mitigated by the fact that, at least in accordance with the father, a matter which I tend to accept today, he feels largely excluded from information about X’s treatment. Nonetheless, the G Service evaluation now provides him with a comprehensive assessment of the needs of X and, in particular, the various recommendations that are made throughout the report will provide him with a template for not only being sensitive to these needs of X, but also of how to manage them.
Despite the lack of trust and the inadequate communication between the parents, I am left with a strong impression that the father can be trusted in terms of doing what is best for X. That is reflected not just in my own impression, but it is inherent in Ms F’s own expert report, which is the second report that has been prepared by her. In short, the two biggest concerns raised in the mother’s case about the impact of change on X and the father’s parenting capacity in terms of his sensitivity to address the special needs that she appears to have, have been adequately addressed to the satisfaction of this Court.
It must be borne in mind that this is an interim order. The final hearing is not that far off. I have no doubt that the parents appreciate that whilst they have been under the critical scrutiny of the Court since this case started in 2021, the level of scrutiny that they are under now, between now and the date of the hearing, is nothing less than intense. That would focus them both on ensuring that everything they do, say and even think is in the best interests of X. Because, you see, there will be a reckoning at the final hearing if there is not. Mr Denton, Ms Denton, that is not a threat. I am simply telling you the way it actually is. Leave has been granted to relist this matter before me on seven days’ notice just in case there are difficulties.
Another issue of significant concern to the Court, however, is the mother’s failure to provide to the Court, so far at least, evidence about her own mental health issues. Orders have been made that I hope will address any cost issues that have prevented or created an obstacle to getting that evidence. It is very surprising that an issue that has been around for so many years, and that was highlighted in such strong terms by Ms F, would not have been addressed so far. The father submits in quite strong terms that this was deliberate. At an interim hearing, of course, the Court cannot make any such finding. This will probably be an issue in respect of the mother which will be cross-examined. But it is an important issue.
I do make this observation, though, strictly on a preliminary basis. The observations that Ms F made about the mother showing some of the symptoms of Factitious Disorder Imposed on Another were predicated on the absence of evidence suggesting that X had global developmental delay. That issue has now been resolved, and whilst it might not entirely address Ms F’s concerns, it may well be that that this will not figure as the significant issue that could have been. This just highlights the importance of the mother providing that mental health assessment for the benefit of the Court. It is very much in her interest that she does so.
I have referred to what I believe are the critical issues that are present today. I am satisfied that making the orders that I have adequately balances the concerns. I think, respectfully of the father, that his proposal was asking for too much, too quickly. It is not necessarily out of the question at the final hearing. But in the circumstances of the evidence before the Court, it would just be moving too quickly for X. The flip side, of course, is that the mother’s proposal was far too conservative and did not address the expert evidence that is before the Court.
The Court has proceeded cautiously, as it should in an interim hearing when there are some concerns about special needs that X might have. I am satisfied overall that these orders are in the best interest of X on an interim basis. I have made trial directions, but I would like to bring the matter back one more time before the final hearing just to make sure that we are ready to deal with all matters, both financial and parenting.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 5 March 2024
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