FARISON & FARISON

[2020] FCCA 3223

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARISON & FARISON [2020] FCCA 3223

Catchwords:
FAMILY LAW – Parenting – interim applications – best interests of Child – Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 62G(2)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Applicant: MS FARISON

Respondent: MR FARISON

File Number: PAC 5124 of 2019

Judgment of: Judge Newbrun

Hearing date: 21 September 2020

Date of Last Submission: 21 September 2020

Delivered at: Parramatta

Delivered on: 25 November 2020

REPRESENTATION

Solicitors for the Applicant: Mr Mitchell – Family Focus Legal Pty Ltd

Solicitors for the Respondent: Ms Lewis – Nolan Lawyers

Solicitors for the Independent Children's Lawyer: Ms Lam – Legal Aid NSW Campbelltown Family Law

ORDERS PENDING FURTHER ORDER

1. That the Mother have sole parental responsibility for the Children in relation to matters of education only. Otherwise, the parties shall have equal shared parental responsibility in relation to the Children.

2. That the Children live with the Mother.

3. That the Children W and V spend time with the Father in accordance with their wishes.

4. That the Father spend time with X, Y and Z as follows:

   (a)On Friday 27 November 2020 and Friday 11 December 2020, from 4 PM to 7 PM;

   (b)Commencing Friday, 18 December 2020, for 3 months, from 4 PM on Friday to 5 PM on Saturday each alternate weekend;

   (c)Thereafter, from 4 PM on Friday to 5 PM on Sunday each alternate weekend;

   (d)During the Easter school holidays, on 2 consecutive nights, as agreed between the parties;

   (e)On those Children’s birthdays from 9 AM to 1 PM if it falls on a weekend or 4 PM to 7 PM if it falls on a weekday;

   (f)On Father’s day from 9 AM to 1 PM, or as agreed between the parties;

   (g)Telephone/FaceTime contact with the Children, as agreed between the parties, but failing agreement from 6 PM to 7 PM each Tuesday and alternate Fridays, with the Father to initiate such call to X’s mobile;

   (h)Such other time, including school holiday time, as agreed between the parties.

5. For the purpose of changeover, the Father is to collect the Children from the matrimonial home at the commencement of his time and the Father is to deliver the Children to the former matrimonial home upon the conclusion of his time.

6. The parties shall communicate all non-urgent matters regarding the Children to each other via email and the parties agree to be polite and courteous in their email communications.

7. In the event of communication requiring the other party to have less than 24 hours’ notice, the parties communicate via text message and/or phone call and the parties agree to be polite and courteous in their communications and shall limit the discussion to parenting of the Children.

8. That each party shall advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes within 48 hours from such change occurring.

9. Each party shall keep the other informed at all times of the full names and contact details, including address and telephone numbers of any specialist medical doctor, general practitioner, psychiatrist, psychologist, counsellor or therapist (hereinafter collectively referred to as “treating practitioners”) for which the Children attend and is to authorise the Father to receive from such providers with any information that they are lawfully able to provide about the Children and communicate with the Mother in relation to the Children.

10. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the Children.

11. Without admissions, each party is restrained by injunction from using any form of physical discipline with the Children.

12. Each parent be restrained from discussing these proceedings in the presence or hearing of the Children and shall ensure that no other person does so.

13. Each party and members of their Family shall be entitled to attend all events involving any of the Children including:

    (a)Sporting fixtures; and

    (b)Extra curricula activities that allow for parental and family attendance; and

    (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent helpers, parent and teacher interviews, canteen duties and social functions.

14. A copy of these Orders is deemed to be sufficient authority for each party to receive directly from the Children’s school a copy of school reports for either of the Children, school photos (at the cost of the party requesting the photos), school newsletters and other documents normally provided to parents.

15. A copy of these Orders is deemed to be sufficient authority for each party to obtain information from any treating medical practitioner, hospital and/or health care professional concerning medical treatment provided to and/or the health of the Children.

16. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the Children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family report, such report to be released by September 2021.

17. The Family Report shall deal with the following matters:

    (a)Any views expressed by the Child(ren) the subject of parenting Orders sought in this case, provided that the Child/ren shall not be required to express a view in relation to any matter.

    (b)The nature of the relationships of the Child(ren) with each of the Child(ren)’s parents and with significant other persons;

    (c)The willingness and ability of each of the Child(ren)’s parents to facilitate and encourage a close and continuing relationship between the Child(ren) and the other parent.

    (d)The likely effect of any changes in the Child(ren)’s circumstances, including the likely effect on the Child(ren) of any separation from:

    (i)either of the parents: or

    (ii)any other Child, or significant person, with whom the Child(ren) has/have been living.

    (e)The practical difficulty and expense of the Child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.

    (f)The capacity of each parent, or another person, to provide for the needs of the Child(ren), including emotional and intellectual needs.

    (g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other Child(ren) and of either of the Child(ren)’s parents and any other characteristics of the Child(ren) that the reporter thinks are relevant.

    (h)Each parent’s attitude to the Child(ren) and to the responsibilities of parenthood.

    (i)Any Family violence involving the Child(ren) or a member of the Child(ren)’s Family.

18. The parties shall attend all appointments with the Family Consultant and shall ensure the subject Child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

19. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Farison & Farison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5124 of 2019

MS FARISON

Applicant

And

MR FARISON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This Interim Hearing relates to the Children W born in 2004, X born in 2008, Y born in 2010, and Z born in 2013.

Proposals

1. The Mother’s proposals are set out in her Minute of Order, Exhibit C. 

2. The Mother seeks Interim Parenting Orders, inter alia, that the Children live with her; that the Children W and V spend time with the Father in accordance with their wishes; that the Father spend time with the Children X, Y and Z for about the first three months from 4PM to 7 PM each alternate Friday afternoon, and thereafter from 4 PM on Friday to 5 PM on Saturday each alternate weekend.

3. The Father’s proposals are set out in his Minute of Order attached to his Case Outline filed 7 September 2020. The Father, inter alia, seeks Orders that the Children live with the Mother; that the Father spend time with W in accordance with his wishes; that the Father spent time with V from 9 AM 3 October to 6 PM on Monday 6 October 2020, and thereafter, in accordance with his wishes; that the Father spend time with the Children X, Y, and Z from 6 PM on Friday until 8 PM on Sunday each alternate week, together with certain proposed holiday time, and he seeks other ancillary related interim parenting Orders.

4. The ICL proposed interim parenting Orders, inter alia, that the Children live with the Mother; the Children V and W spend time with the Father in accordance with their wishes; the Children X, Y and Z spend time with the Father on two occasions from 4 PM to 7 PM, and thereafter, each alternate week from 6 PM Friday to 8 PM Sunday, together with certain holiday time, and time on special occasions. The ICL sought other ancillary related interim parenting Orders.

Material relied upon

1. The Mother relied upon the following material:

   a)Her Case Outline filed 18 September 2020. 

   b)Her Consolidated Affidavit filed 17 September 2020;

   c)Her proposed Minute of Order (Exhibit C).

2. The Father relied upon the following material:

   a)His Case Outline filed 17 September 2020;

   b)His Consolidated Affidavit filed 9 April 2020;

   c)His Response to Initiating Application filed 13 December 2019;

3. The ICL relied upon the following material:

   a)Her Case Outline dated 17 September 2020;

4. The parties and ICL relied upon a Child Inclusive Conference Memorandum to Court dated 23 March 2020.

5. The following Exhibits were relied upon:

   a)Exhibit A: Mother’s Tender Bundle of documents;

   b)Exhibit B: Father’s Tender Bundle of documents; and

   c)Exhibit C: Mother’s proposed Minute of Order.

Evidence

1. The Mother is aged 47 years, and the Father is aged 52 years.

2. The Mother alleges that the parties commenced their relationship in 1993.

3. In addition to the Children, the parties have older Children being Mr B aged 25 years, Mr C aged 24 years, Mr D aged 22 years, and Mr E aged 18 years.

4. The parties separated in late March 2019 (alleged by the Mother), or in early April 2019 (as alleged by the Father).  The Father alleges that on 6 April 2019, when he alleges the parties separated, he moved out of the family home and stayed with a friend.

5. The Father, alleged by the Mother, spent time with the Children between about 13 April 2019 and 24 July 2019, and between about 19 October 2019 and 22 February 2020. The Father alleges that the Mother has refused to allow him to spend any significant time with the Children since the separation and once he moved out of the home in April 2019.

6. The Father spent supervised time with the Children (supervised by F Contact Centre) on six occasions between 5 June 2020 and 9 July 2020.

7. Each of the parents reported to the Family Consultant that they communicate via email only.

8. The Mother reported to the Family Consultant that W, V, and Z had been diagnosed with autism, and that X is currently being assessed for autism. She alleged that each of these Children see the same psychologist in relation to their diagnosis, or potential diagnosis.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [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).

   [122] 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.

   [123] 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.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 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”.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the Child of having a meaningful relationship with both of the Child’s parents: a primary consideration

1. The Children have a meaningful relationship with the Mother and would benefit from a continuance of those relationships.

2. The Children would appear to have positive if not meaningful relationships with the Father and would benefit from those relationships being maintained and enhanced provided it is emotionally safe for them to do so. Having said that, W and V’s relationship with the Father may be strained to some degree, taking into account their statements to the Family Consultant and their interactions with the Father during the supervised visits this year.

3. There is a significant suggestion, on the material before the Court, that the Mother has been the Children’s primary carer from birth. The Father alleges that he always played an active role in parenting the Children which is disputed by the Mother.

4. It is common ground that the Children should continue to live with the Mother which will be in the best interests of the Children.

5. The Children, W and V, taking into account their ages, their diagnoses of autism, their statements to the Family Consultant, their interactions with the Father during the supervised visits, and the  possible strains in their present relationships with the Father, should spend time with the Father in accordance with their wishes. The Court has a significant concern that if it was to make a discrete Order, as proposed by the Father, for the Child V to spend overnight time with the Father for one weekend, that it may lead to some further strain in that Child’s relationship with the Father.

6. Should the children X, Y, and Z spend time with the Father as follows, there is a significant prospect that their meaningful relationships with the Father can be maintained and enhanced:

   a)On Friday 27 November 2020 and Friday 11 December 2020, from 4 PM to 7 PM;

   b)Commencing Friday, 18 December 2020, for 3 months, from 4 PM on Friday to 5 PM on Saturday each alternate weekend;

   c)Thereafter, from 4 PM on Friday to 5 PM on Sunday each alternate weekend;

   d)During the Easter school holidays, on 2 consecutive nights, as agreed between the parties;

   e)On those Children’s birthdays from 9 AM to 1 PM if it falls on a weekend or 4 PM to 7 PM if it falls on a weekday;

   f)On Father’s day from 9 AM to 1 PM, or as agreed between the parties;

   g)Telephone/FaceTime contact with the Children, as agreed between the parties, but failing agreement from 6 PM to 7 PM each Tuesday and alternate Fridays;

   h)The Father should be permitted to attend relevant school and other events of the Children as set out in the ICL’s proposed Order 13.

   i)Such other time, including school holiday time, as agreed between the parties.

7. Hopefully, following the positive implementation of the above proposed Orders for these Children, relating to spending time with the Father, the parties can cooperate and begin to introduce significant block time in the school holidays for these Children to spend time with the Father. In the circumstances, it is important that these Children’s time with the Father be reintroduced cautiously and gradually. 

Subsection (2b): the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or Family violence.

1. The Father appeared to indicate to the Family Consultant that he displayed Family violence over 10 years ago, which was addressed through counselling. This Family violence would appear to relate to an incident between the Father and the older Child Mr B, referred to by the Father in paragraph 36 of his Affidavit filed 9 April 2020. In relation to this incident, the Father alleges that he apologised profusely, however his relationship with Mr B never fully repaired and he continues to regret his actions to this day. 

1. The Mother reported to the Family Consultant alleged extensive Family violence from the Father throughout their relationship, including alleged physical violence in the form of destroying property and alleged psychological violence in the form of threats, intimidation, and verbal abuse. She reported that since the end of the parties’ relationship, the Father has allegedly continued to display verbally and physically abusive behaviour. The Father admits to an incident in about 2006 when the older male Children had been wrestling and put holes in their bedroom walls and doors. The Father admits that he became annoyed and kicked one of the holes that they had already made and his foot went straight through. The Father states that he realised this was not a good parenting move and alleges that he fixed the holes the following day.  Otherwise, these allegations of the Mother are significantly denied by the Father.

2. The Mother reported to the Family Consultant alleged past behaviours of the Father towards the Children including significant medical neglect of W; physical abuse of the older Children, who are now adults, which was witnessed by the younger Children; destruction of the Children’s property, after she told the Father he could no longer hit the Children; and smacking Z for soiling. These allegations are significantly denied by the Father.

3. The Father reported to the Family Consultant that he was currently seeing a counsellor to “check-in”, and to see if he has any violence in his nature.

4. The Father reported to the Family Consultant that 10 years ago, he and the Mother used physical discipline with the Children, however, after attending counselling and learning more appropriate ways to discipline the Children, they ceased using physical discipline.

5. On the other hand, the Mother alleges that she stopped smacking the Children before they started primary school. She alleges that the Father continued not only smacking the Children but also hitting them repeatedly. She alleges that this continued after high school. She alleged that the Father would also punish the Children by destroying their belongings.

6. The Mother alleges that the Father tried to provoke a physical fight with Mr B on 23 December 2018. She alleges that at this time their grandson G was present and was screaming at them. The Mother alleges that Ms H (the partner of Mr B) had to stop them from fighting.

7. The Mother alleges that in 2019, being W’s birthday dinner at the Mother’s residence, the Father arrived and began to verbally intimidate the Mother by following her around the kitchen and questioning her about the Mother changing the front door lock. She alleges that the Father yelled and swore at her in front of the Children W, X and herself, despite the Mother allegedly telling the Father that she did not want to talk about the topic. The Father alleges a different version of this occasion. The Mother alleges that as the Father was leaving he grabbed the Mother’s arm and demanded the Mother get a key cut for him that week which is denied by the Father.

8. The Mother alleges that on 10 August 2019, the Father attended her residence with a locksmith and changed the front door lock. The Mother alleges the Father began to move some of his belongings back inside the home. The Mother alleges she told the Father that it was not right that he was moving back in. She alleges that the Father yelled at her stating that this was what was best for him. The Father alleges a different version of this occasion. The Mother moved out of the home with the Children to live with the eldest adult Child Mr B.

9. In October 2019, the Father moved out of the home and the Mother and the Children moved back in.

10. The Mother alleges that on 9 March 2020, the Father had come to the home with her permission. The Mother was not present. The Mother alleges that the Father provoked an argument with one of the older Children, Mr D, when that older Child asked the Father to leave. The Father, on the other hand, alleges that the older Child Mr D requested the Father to leave the house and, the Father, being surprised by his comments and having “felt the tension”, decided to leave.

11. The Father alleges that in March 2020, he was able to attend the first of six sessions with J Counselling for a post separation parenting program. He alleges that the last session was on 30 March 2020 with the course to finish on 21 April 2020.

12. The Father alleges that on 23 February 2020, he attended a K Counselling Centre program with a psychologist Ms L. He alleges that Ms L runs the Men’s Behaviour Change and Anger Management program. The Father alleges that his intention in attending this course was to alleviate the Mother’s concerns in relation to what she had asserted to be an anger management problem and so that the Father could understand and cope with the current difficulties in spending time with the Children during this process. The Court interpolates at this point that such allegation by the Father suggests that the Father does not have complete insight into his adverse behaviour as alleged by the Mother, including alleged anger, and by inference, lack of impulse control. The Father alleges that he is attending upon a further four sessions with Ms L as recommended.

13. Taking into account the above discussions under this need to protect primary consideration, there is a significant suggestion that the Father, historically, may well have perpetrated family violence against the Mother and the now adult Children. In that context, the Court takes into account the real possibility that some of the Children may have witnessed or overheard such Family violence.

14. Further, whilst acknowledging the Father’s denial of allegations made by the Mother, the Court has a concern, taking into account the Mother’s allegations, that there is a real possibility that the Father, post separation, continues to exhibit anger and lack of impulse control both towards the Mother and in the presence of the Children. In this context, the Court refers, for example, to the allegations made by the Mother against the Father relating to alleged incidents on 23 December 2018, 7 and 10 August 2019, and 9 March 2020, as discussed above. Again, the Court is concerned that the Father has not developed complete insight in relation to these matters, again as alleged by the Mother. Whilst the Father’s behaviour with the Children during the six supervised visits this year appears to have been satisfactory, the Court takes into account that such supervised visits were for short periods of time and were supervised.

15. So as to address and minimise the risk of the Children being exposed to adverse behaviour from the Father, including the real possibility of anger and lack of impulse control, the Children should spend time with the Father as discussed above and proposed by the Court under the meaningful relationship primary consideration; such time is limited, ultimately, apart from special occasions and periods, to 2 nights each fortnight. And further, so as to so address and minimise the above risk, the Court will make the ICL’s proposed restraining Orders 10, 11, and 12, which includes a restraint on physical discipline. In this context, the Court observes that the Father alleges that he is attending upon a further four sessions with Ms L (see earlier in these Reasons as to Ms L) as recommended.

16. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the Child’s views

1. The Family Consultant interviewed the Children on 12 March 2020.

2. Z, aged 7 years, told the Family Consultant that he wants to live with the Mother and live with the Father for “just one time” and “for two minutes.”

3. Y, age 9 years, told the Family Consultant that she wanted to live with the Mother and see the Father for “30 minutes every second Saturday or Sunday”. She reported that she thought it would be awkward if she spent more time than this with the Father. She reported that the last time she spent time with the Father he was on his phone half the time. She reported that the Father’s discipline (sending her to the corner straight away) was more harsh compared to the Mother’s discipline.

4. X, aged 12 years, told the Family Consultant that she wanted to live with the Mother. She reported that if she lived with the Father he would yell at her and she would have to take care of Z and Y. She reported that she would like to see the Father for an hour on the weekend once a fortnight. She reported that it would be awkward if she saw the Father for longer than this because he usually talks to her about who she wants to live with, and she doesn’t want to talk to him about this. She reported that she was 2 to 3 years old, when the Father hit her older siblings.

5. V, aged 14 years, initially told the Family Consultant that he didn’t want to be interviewed and later said he wanted to live with the Mother.

6. W reported to the Family Consultant that he wanted to live with the Mother because she had been looking after him since the day he was born. He reported that he did not want to see the Father because he did not really trust him, and because he had done stuff to the older Children and that made him fearful of the Father, such that he might do something like that to him. He reported that the Father had broken his older siblings belongings, got into fights with them and yelled at them, and on occasion would smack his older siblings. He reported, that he had experienced the Father throwing things and yelling often, but the Father had not smacked him. He reported the Father used to put him in the corner a lot. He reported that he did not really want his younger sisters and brothers to be with the Father, but “I (also) do because I know they need a dad I just don’t want him to yell at them, get angry at them.” He referred to his older sister Ms E, aged 18 years, telling him that after the Mother had changed the locks on the front door, she saw the Father speaking to the Mother in an angry tone.

7. The Children spent supervised time with the Father from 5 June 2020 until 9 July 2020; six supervised visits. This supervised time appears to have been spent positively between the Children and the Father. At the last visit, the Child V expressed a wish to leave the visit prematurely. The Father then hugged V and said, “I want to see you but if you don’t want to come you don’t have to do.” V said, “Right.  I thought I have to.” The Father, after saying to V, inter alia, that he loved him, hugged V but this Child kept moving away from the Father.

8. In 2020, the Father emailed the Mother in Relation to W’s Birthday. The Mother alleges that W had told her that he did not want the Father to attend his birthday dinner; the Mother alleges that she emailed the Father giving the Father this information.  The Mother alleges that in 2020, the Father arrived at the home.  The Mother alleges that besides Z no one else wished to greet the Father. The Mother alleges that she told the Father that he should have read her email and she closed the door.

9. On 22 August 2020, the Mother arrived home from work at about 10:30PM. The Children told her that the Father had come to the house at about 5 PM. The Father had brought a present and a card for V. The Mother alleges that the Child V earlier in the week had told the Father by email that the Father was not to come to his birthday on the weekend.

10. The Mother alleges that through the process of the supervised visits, W and V have expressed they do not want to spend time with the Father.

11. The Family Consultant stated that the Court may wish to consider giving some weight to W’s views, given his age and maturity. The Court does give significant weight to this Child’s views. The Court gives some weight to the views of V.

(b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child)

1. The Court refers to its discussions above under the meaningful relationship primary consideration.

(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child

1. The Court refers to its discussions above under the meaningful relationship primary consideration.

2. There is a significant suggestion on the material before the Court that both parties have sought to take such opportunities.

(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

1. Each parent would appear to have maintained the Children when in their respective care.

(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living

1. The Court refers to its discussions above under the meaningful relationship primary consideration. Should the Children spend time with the Father, as proposed above by the Court under the meaningful relationship primary consideration, the Children’s meaningful relationship with the Mother should not be detrimentally affected.

(e) The practical difficulty and expense of a Child spending time with and communicating with the 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

1. Not applicable.

(f) the capacity of:

i) each of the Child’s parents; and

ii) any other person to provide for the needs of the Child, including emotional and intellectual needs;

1. The Father alleges that the Mother has completely shut him out of the Children’s lives post separation despite him having previously been involved every day in the Children’s lives.

2. On the other hand, the Mother alleges that by reason of the Father’s adverse behaviour, including perpetration of Family violence, both during the relationship and post separation, which she alleges has impacted negatively upon the Children, and having regard to their views, she has acted protectively towards the Children resulting in the Children spending limited time with the Father; in this context, the Court refers to its discussions above under the need to protect primary consideration.

(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

1. The Children W, V and Z have been diagnosed with autism, and the Child X is being assessed for autism. The Court has also taken these matters into account in reaching the views discussed above under the meaningful relationship and need to protect primary considerations.

(h) If the Child is an Aboriginal Child or a Torres Strait Islander Child: 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 the likely impact any proposed parenting Order under this Part will have on that right

1. Not applicable.

(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child's parents

1. The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations. Otherwise, the parties would appear to have demonstrated appropriate attitudes towards the Children and to their responsibilities of parenthood.

(j) Any Family violence involving the Child or a member of the Child's Family

1. The Court refers to its discussions above under the need to protect primary considerations.

(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: the nature of the Order; the circumstances in which the Order was made; any findings made by the court in, or in proceedings for, the Order; any other relevant matter

1. Not applicable.

(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

1. Whilst these are interim parenting proceedings, on the material before the Court, having regard to the above discussions under s 60CC, the Court is of the view that the Court’s proposals as discussed above under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the Children.

m) Any other fact or circumstance that the Court thinks is relevant

1. Not applicable.

Parental Responsibility

1. The Mother seeks an Order for sole parental responsibility for the Children. The ICL and Father seeks no Order for parental responsibility.

2. The Mother alleges that on 25 March 2020, she sent the Father an email asking him to sign X’s enrolment forms for her to attend the M School commencing 2021 with her brothers. The Father did not respond by the time the Mother filed her Affidavit on 17 September 2020. 

3. The parties communicate via email only. Unfortunately, there continues to exist considerable distrust between them. As referred to immediately above, the parties have been unable to reach agreement, in a timely fashion, in relation to a choice of schooling issue. At this interim stage, the Court is of the view that it will be in the best interests of the children the Mother have sole parental responsibility relating to matters of education. 

4. As to s 65DAA and equal time and substantial and significant time, the Court refers to its discussions above under the primary considerations. It will not be in the best interests of the Children to be subject to an equal time arrangement nor be subject to spending time with the Father on a substantial and significant time basis. Relating to both equal time and substantial and significant time, such time is probably reasonably practicable.

Summary

1. Evaluating the above discussed considerations under s 60CC of the Act, it will be in the best interests of the Children to make the following Interim Orders:

2. That the Mother have sole parental responsibility for the Children in relation to matters of education only. Otherwise, the parties shall have equal shared parental responsibility in relation to the Children.

3. That the Children live with the Mother.

4. That the Children W and V spend time with the Father in accordance with their wishes.

5. That the Father spend time with X, Y and Z as follows:

   (a)On Friday 27 November 2020 and Friday 11 December 2020, from 4 PM to 7 PM;

   (b)Commencing Friday, 18 December 2020, for 3 months, from 4 PM on Friday to 5 PM on Saturday each alternate weekend;

   (c)Thereafter, from 4 PM on Friday to 5 PM on Sunday each alternate weekend;

   (d)During the Easter school holidays, on 2 consecutive nights, as agreed between the parties;

   (e)On those Children’s birthdays from 9 AM to 1 PM if it falls on a weekend or 4 PM to 7 PM if it falls on a weekday;

   (f)On Father’s day from 9 AM to 1 PM, or as agreed between the parties;

   (g)Telephone/FaceTime contact with the Children, as agreed between the parties, but failing agreement from 6 PM to 7 PM each Tuesday and alternate Fridays, with the Father to initiate such call to X’s mobile;

   (h)Such other time, including school holiday time, as agreed between the parties.

6. For the purpose of changeover, the Father is to collect the Children from the matrimonial home at the commencement of his time and the Father is to deliver the Children to the former matrimonial home upon the conclusion of his time.

1. The parties communicate all non -urgent matters regarding the Children to each other via email and the parties agree to be polite and courteous in their email communications.

2. In the event of communication requiring the other party to have less than 24 hours’ notice, the parties communicate via text message and/or phone call and the parties agree to be polite and courteous in their communications and shall limit the discussion to parenting of the Children.

3. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes within 48 hours from such change occurring.

4. Each party to keep the other informed at all times of the full names and contact details, including address and telephone numbers of any specialist medical doctor, general practitioner, psychiatrist, psychologist, counsellor or therapist (hereinafter collectively referred to as “treating practitioners”) for which the Children attend and is to authorise the Father to receive from such providers with any information that they are lawfully able to provide about the Children and communicate with the Mother in relation to the Children.

5. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the Children.

6. Without admissions, each party is restrained by injunction from using any form of physical discipline with the Children.

7. Each parent be restrained from discussing these proceedings in the presence or hearing of the Children and shall ensure that no other person does so.

8. Each party and members of their Family shall be entitled to attend all events involving any of the Children including:

   (a)Sporting fixtures; and

   (b)Extra curricula activities that allow for parental and family attendance; and

   (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent helpers, parent and teacher interviews, canteen duties and social functions.

9. A copy of these Orders is deemed to be sufficient authority for each party to receive directly from the Children’s school a copy of school reports for either of the Children, school photos (at the cost of the party requesting the photos), school newsletters and other documents normally provided to parents.

10. A copy of these Orders is deemed to be sufficient authority for each party to obtain information from any treating medical practitioner, hospital and/or health care professional concerning medical treatment provided to and/or the health of the Children.

11. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the Children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family report, such report to be released by September 2021.

12. The Family Report shall deal with the following matters:

    (a)Any views expressed by the Child(ren) the subject of parenting Orders sought in this case, provided that the Child/ren shall not be required to express a view in relation to any matter.

    (b)The nature of the relationships of the Child(ren) with each of the Child(ren)’s parents and with significant other persons;

    (c)The willingness and ability of each of the Child(ren)’s parents to facilitate and encourage a close and continuing relationship between the Child(ren) and the other parent.

    (d)The likely effect of any changes in the Child(ren)’s circumstances, including the likely effect on the Child(ren) of any separation from:

    (i)either of the parents: or

    (ii)any other Child, or significant person, with whom the Child(ren) has/have been living.

    (e)The practical difficulty and expense of the Child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.

    (f)The capacity of each parent, or another person, to provide for the needs of the Child(ren), including emotional and intellectual needs.

    (g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other Child(ren) and of either of the Child(ren)’s parents and any other characteristics of the Child(ren) that the reporter thinks are relevant.

    (h)Each parent’s attitude to the Child(ren) and to the responsibilities of parenthood.

    (i)Any Family violence involving the Child(ren) or a member of the Child(ren)’s Family.

13. The parties shall attend all appointments with the Family Consultant and shall ensure the subject Child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

14. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 25 November 2020