Farnham and DeLuca

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARNHAM & DELUCA

[2013] FCCA 2064

Catchwords:
FAMILY LAW – Parenting – interim hearing – allegations of family violence – mother living with child in a refuge – whether child’s time with father requires supervision.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA

Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92

Applicant:

MR FARNHAM

Respondent:

MS DELUCA

File Number:

SYC 5417 of 2013

Judgment of:

Judge Monahan

Hearing date:

15 November 2013

Date of Last Submission:

21 November 2013

Delivered at:

Sydney

Delivered on:

10 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Clifton

Solicitors for the Applicant:

David Landa Stewart

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Marks Griffiths & Bova Solicitors

ORDERS

All extant applications be adjourned to this Court on 21 January 2014 at 10:00am for mention (“the mention hearing”).

AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

The Applicant (“the Father”) and the Respondent (“the Mother”) consult about any long term decisions involving X, born on (omitted) 2009 (“X”).
The parties forthwith do all things necessary to enrol with the (omitted) Children’s Contact Service (“the Centre”) to affect changeover at the Centre for X to spend time with the Father and the parties equally share the costs of using the Centre to facilitate X spending time with the Father pursuant to these Orders.
X live with the Mother.
X spend time with the Father as agreed or, failing agreement, commencing 11 December 2013 on at least two (2) occasions each week (being one weekday and either a Saturday or a Sunday) with all such times being spent in public places as follows:
(a)for the first two (2) occasions at times as nominated by the Father with such times to be not less than three (3) hours on each occasion and with such times to be supervised by the principal or employee of a professionally accredited agency to be engaged by the father at his expense; and thereafter
(b)for a further six (6) occasions at times as nominated by the Father with such times to be not less than four (4) hours on each occasion and with changeovers to be supervised; and thereafter
(c)at times as nominated by the Father with such times to be not less than four (4) hours on a weekday and not less than six (6) hours on a Saturday or a Sunday with changeovers to be supervised; and
(d)the changeovers referred to above be supervised by the Centre, however pending the Centre’s availability, such changeovers be supervised by the principal or employee of a professionally accredited agency to be engaged by the Father at his expense.
Commencing immediately, the Mother facilitate X communicating with the Father by way of either phone or Skype communication at times as agreed, or failing agreement, between the hours of 6:00pm and 6:30pm on Tuesday and Thursday of each week.
The parties be at liberty to provide a copy of these Orders to the Centre and/or a professionally accredited agency.
The parties advise each other immediately of any urgent medical or dental procedure that is required or requires X’s attendance upon a medical or dental practitioner.
The Mother be restrained from commencing or continuing any non-urgent medical, psychological, counselling or therapy for or upon X without the express prior written consent, permission and agreement of the Father or pursuant to a Court order.
The Mother forthwith surrender to her lawyer, Sue Mordaunt of Marks Giffiths & Bova any passport in X’s name and:
(a)upon receipt, the Mother’s lawyer inform the Court and the lawyer for the Father when such passport or passports have been received;
(b)the lawyer for the Mother not return the child’s passport or passports to the Mother without the leave of the Court or the written permission of the Father and the Mother; and
(c)should Marks Giffiths & Bova cease to act for the Mother then the Mother forthwith lodge such passport or passports with the Sydney Registry of this Court.
The parties each be restrained from:
(a)discussing any issue the subject of, or relating to, any proceedings between them before this Court, or any other Court, in the presence of X;
(b)saying anything in the presence of X or allow any other person to say anything to or in the presence of X which in any way is derogatory of the other parent or other parent’s family members or in any way denigrates the other parent or the other parent’s family members; and
(c)making any application for a passport for X.
The Father’s Application in a Case filed on 5 November 2013 and the Mother’s interim orders sought in her Response filed 15 November 2013 be otherwise dismissed.
The Father make, file and serve an Amended Initiating Application by no later than 4:00pm on 16 January 2014.

AND THE COURT NOTES THAT:

(A)These Orders were made following a contested interim hearing on 15 November 2013 and further unsolicited written submissions of both parties received by Chambers on 21 November 2013.
(B)The orders made on 12 November 2013 provide for the appointment of an Independent Children’s Lawyer and for X to be placed on the Australian Federal Police watchlist.
(C)The purpose of the mention hearing is to:
a.consider the preliminary views of the Independent Children’s Lawyer;
b.receive an update on the progress of the parenting arrangements;
c.consider whether the parties should be referred to a Child Dispute Conference;
d.subject to capacity and the views of the Independent Children’s Lawyer, conducting a brief interim hearing reviewing paragraph 5 herein and whether the proceedings and orders herein (parenting and procedural) should be extended to cover any further new born child of the parties; and
e.make further directions.

(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5417 of 2013

MR FARNHAM

Applicant

And

MS DELUCA

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application by MR FARNHAM (“the father”) against MS DELUCA (“the mother”).
The relevant child of the marriage is X, born on (omitted) 2009 (“X” or “the child”).
This decision only concerns interim parenting arrangements, and in particular whether X’s time with the father should be supervised or not and, if supervised, whether such supervision should occur only in the Contact Centre or otherwise occur in the presence of a professionally qualified supervisor.
Both parties are legally represented. At the interim hearing, Ms Clifton of counsel appeared for the father and Ms Mordaunt, solicitor, appeared for the mother.
Any statutory references I make will be to the Family Law Act 1975 (“the Act”).

Background

The parties met in (country omitted) in 2007, however there appears to be some disagreement as to the date at which they commenced cohabitation, which appears to have occurred between January 2007 and May 2008. There is, however, agreement that the date of separation is 5 August 2013 when the mother left the home with X and, unbeknown to the father, moved into crisis accommodation.
X is currently 4½ years of age and turns 5 next March. The mother is in the latter stage of her third trimester of pregnancy with the parties’ second child.
This application was commenced by the father (as a self-represented litigant) by the filing of an Initiating Application on 17 September 2013. That application only sought one order on a final basis, being an airport watchlist order restraining the parties from removing X from the Commonwealth of Australia and two additional orders on an interim basis, being leave to proceed without the relevant s.60I certificate and for X to live with her mother.
The father subsequently obtained legal representation and filed an Application in a Case on 5 November 2013 that sought more detailed final and interim orders.
The matter first came before me on an urgent basis in my duty list on 12 November 2013. On that day the Court had capacity to offer the parties an urgent Child Dispute Conference (“CDC”), however although the mother was legally represented, she was not in personal attendance at Court and hence a CDC was not able to proceed that day.
Given the mother’s absence and the lack of any responding material from her, the matter was adjourned to 15 November 2013 for a proper determination of the interim application.
Orders were also made on 12 November 2013 for the appointment of an Independent Children’s Lawyer (“ICL”), for the mother to attend upon the Court in person on the next occasion, and with consent, for the parties to be restrained from removing the child from the Commonwealth of Australia and for the Australian Federal Police to place the child’s name on the airport watchlist.

Areas of agreement

The parties were ultimately able to reach agreement on a number of matters previously in dispute. Apart from their agreement that the matter would benefit from the appointment of an ICL, there was agreement, until further order, that:
·the child live with the mother;
·there be no specific order as to parental responsibility but rather an order that would require the parties to consult one another prior to any long-term decision affecting the child being made;
·there be a mutual non-denigration order;
·there be a prohibition on either party discussing these proceedings with the child, or allowing any third party to do so in their presence;[1] and
·there be a restraint on either party facilitating the child in attending a counsellor or therapist.
[1] In addition, there were discussions during the course of the interim hearing that without admissions, the father would not pose any question to the child that may result in the child advising the father as to the current location of the mother’s residence.
I note that the parties had intended to present to the Court a joint minute of order that reflects the areas of agreement. Correspondence was subsequently received by Chambers from both legal representatives some days later indicating that they were unable to agree on the terms of a minute reflecting the above. I note that each legal representative provided a minute of what they believed had been agreed, and I further note that the mother’s lawyer has also indicated her client’s agreement, or non-opposition to, five of the eight paragraphs contained in the father’s minute. The apparent areas of further dispute are referred to below.
I also note that the issue of the father not posing any question to the child that may result in the child advising the mothers current residential address is not specifically dealt with in either proposed minute. However, it is arguable that such a restraint would in any event be covered by the relevant paragraphs in both minutes that prevent either party from discussing these proceedings with the child.
Having considered the correspondence, there will be interim orders reflecting the areas of agreement as follows:
·    X live with the mother;
·    the parties advise each other immediately of any urgent medical or dental procedure required by X’s attendance upon a medical or dental practitioner;
·    the mother surrender forthwith to her lawyer, Sue Mordaunt of Marks Giffiths & Bova any passport in the child’s name and;
o   the mother’s lawyer shall inform the Court and the lawyer for the Father when such passport or passports have been received; and
o   the lawyer for the mother shall not return the child’s passport or passports to the mother without the leave of the Court or the written permission of the father and the mother;
o   the mother cause the relevant passports to be forthwith lodged with the Sydney registry of this Court in the event that Ms Mordaunt’s firm ceases to act for her; and
o   both parties be restrained from making any further application for a passport for the child.
·    both parties refrain from discussing any issue the subject of or relating to any court proceedings in the presence of the child, including these family law proceedings and the apprehended domestic violence orders proceedings that are presently before North Sydney Local Court; and
·    both parties shall not say anything in the presence of the child or allow any other person to say anything to or in the presence of the child which in any way is derogatory of the other parent or the other parent’s family members or in any way denigrates the other parent or the other parent’s family members.

Issues and Proposals

As previously stated, there is disagreement between the parties as to the necessity of the child’s time with the father being supervised.
Without admissions, the father will agree for any changeovers to be supervised and is prepared to engage a professionally accredited supervisor for this purpose. However, the father opposes all of the child’s time with him being supervised.
The mother’s preference is for all times that the child spends with the father occur at a contact centre. Alternatively, all such times would be supervised by an accredited supervisor at the father’s expense.
As to the frequency of time, the father proposes weekly times as follows:
·Saturday 9:00 am to 5:00 pm;
·Sunday 1:00 pm to 5:00 pm; and
·Wednesday 12 noon to 5:00 pm.
Should the Court favour the mother’s proposal that all time occur at a contact centre, she proposes that such time occur at the (omitted) Children’s Contact Service at such times as that service may offer (presumably one period of two hours fortnightly). The mother did not specifically address the frequency of times in the event that such time occurred in the presence of a professionally accredited supervisor.
As stated above, I had thought there had been agreement reached between the parties at the interim hearing with regards to the following matters:
·the process of consultation in relation to major decision-making;
·the child having communication time with father; and
·the child not participating in any further therapy until the views of the ICL as to the merits of continuing such therapy, or commencing such therapy, can be investigated and put before the Court.
Clearly, this is no longer the case.
Consequently, the Court is also required to consider and determine the following further interim issues in addition to the spend time arrangements.
Firstly, whether there should be a simply worded order (as proposed by the mother) “that the mother will consult with the father about any long-term decisions involving the child” or a more comprehensive order (as proposed by the father) that:
“5. That until further orders, in order to facilitate the order referred to in paragraph 9[2] above, the Respondent Mother’s lawyer must write to the Applicant Father’s lawyer outlining the treatment sought, the practitioner with whom the treatment is sought, the reason for the treatment and any attached supporting medical referrals and reports in relation to such proposed treatment for the Child.
6.That until further order, the Applicant Father and Respondent Mother will advise each other immediately of any urgent medical or dental procedure required by the Child’s attendance upon a medical or dental practitioner.”
[2] As there is no paragraph 9 I have read this as referencing paragraph 4 in the father’s Minute of ‘Consent Orders’ received 21 November 2013.
Secondly, whether there should be an order (as proposed by the father) requiring the mother to facilitate the child communicating with the father “by way of either by phone or Skype communication … between the hours of 6:00 pm and 6:30 pm every Tuesday and Thursday of each week”.[3]
[3] See father’s Minute of ‘Consent Orders’ received 21 November 2013, paragraph 1.
Thirdly, whether there should be a simply worded order (as proposed by the mother) “that the child will not attend to therapy” or a more comprehensive order (as proposed by the father) as follows:
“4.That until further order the Respondent Mother be restrained from commencing or continuing any non-urgent medical, psychological, counselling or therapy for or upon the Child without the express prior written consent, permission and agreement of the Applicant Father or pursuant to a court order.”

Evidence

The father relies on his affidavit sworn and filed on 5 November 2013. The orders he sought were primarily contained in his Application in a Case filed on 5 November 2013.
The mother relies on her affidavit sworn on 14 November 2013 and filed on 15 November 2013 together with the affidavit of Ms L sworn on 14 November 2013 and filed on 15 November 2013.
I note that no subpoenas have been issued at this point of the proceedings. Moreover, for the reasons stated earlier in this decision, the parties have not had the benefit of a CDC.
As stated above, the parties through their legal representatives each provided Chambers (and the other party) with subsequent correspondence enclosing their respective Minutes of Order as to areas of alleged agreement at the interim hearing.

Submissions

Each of the parties’ legal representatives presented oral submissions when the matter was before me for interim hearing on 15 November 2013.
The transcript for the interim hearing that was conducted that afternoon will of course reflect those submissions. I do not propose to summarise those submissions, but will refer to those submissions where relevant during the course of these reasons.

Law and Discussion

All parenting proceedings of course are governed by the provision of Part VII of the Act. Parenting orders are defined in s.64B of the Act and deal with where a child is to live and, relevant to this dispute, the time that a child spends with another person. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act provides as follows:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC of the Act deals with how the Court determines the best interests of a child. This is sometimes referred to as the ‘legislative pathway’. The most relevant to these parenting proceedings that are before me presently are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant. I will consider those briefly in a moment.
In addition, the Court is guided by case law relevant to interim parenting disputes including the Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode”). At this point, I note the following observation of the Full Court at paragraph 81 of Goode that:
“In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination and the matter proceeded by way of submissions only. That said, the Full Court in Goode made it clear that the ‘legislative pathway’ must be followed. In other words, the relevant provisions of the Act, post the 2006 and 2012 amendments, must be followed.

There is, unfortunately, considerable animosity and distrust between the parties in this case, and no doubt the history of the matter will be the subject of evidence in cross-examination at a final hearing, should it be needed.
As stated, the Court was not asked to specifically consider the issue of parental responsibility or more particularly, the presumption in favour of equal shared parental responsibility, as part of this decision. The dispute simply was limited to the issue of the child’s time with the father and the circumstances as to how that time would be spent. Nevertheless, by making a parenting order, the Court notes that s.61DA of the Act incorporates a presumption that the Court is required to consider when it makes a parenting order; that is that the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. I note that in this case, the father seeks such an outcome on a final basis. In contrast, the mother seeks a final order for sole parental responsibility in her favour.
Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe there has been abuse of the child or family violence. Moreover, and perhaps of direct relevance to this proceeding, is s.61DA(3) which states:
“When a court is considering an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This provision was discussed by the Full Court in Goode.
In this case, I reiterate that I was not asked by the parties consider the issue of parental responsibility on an interim basis. Moreover, as stated, I had been left with the impression at the interim hearing that agreement had been reached for an order that would require each of the parties to consult the other in making long-term decisions for the child. Had I been asked to do so, it is likely that the Court would have found that that it would not be appropriate to apply the presumption or otherwise consider that issue at this early stage of the proceedings. That said, the Court is now asked to consider what process of consultation should exist for long-term decision making given that no order for parental responsibility exists. I will do so later in these reasons.
For completeness, under s.61DA(4) of the Act, the presumption may be rebutted if it is contrary to the child’s best interests, having regard to the relevant legislation.
As the issue of parental responsibility will not be considered as part of this decision, there will be no order at this stage as to parental responsibility. Given that there will be no order for equal shared parental responsibility today, s.65DAA of the Act (orders for equal time or substantial and significant time) is not triggered and thus will not be considered as part of this decision.
I will now consider the primary and additional considerations under s.60CC(2) and (3) of the Act in light of the available evidence.

Primary Considerations s.60CC(2)

Section 60CC(2)(a) requires the Court to consider the benefit of the child having a “meaningful relationship” with both of the child’s parents.
At this point, let me note that meaningful does not mean equal, but it clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. It is the right of the child to spend time with each parent and extended family.
The Full Court considered this provision and the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents (and by implication their extended family).
As a general proposition, it is beneficial for a child to have a meaningful relationship with the each of their parents and extended family. That said, the Court must also consider s.60CC(2)(b) of the Act; that is, the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There are issues in this case warranting investigation and the Court consequently needs to tread cautiously in the interim arrangements that will be necessary in this decision given that there are outstanding apprehended violence proceedings. That said, the child is not named as a ‘person in need of protection’ in the relevant apprehended violence order. I will discuss the family violence allegations later in these reasons.
I also note at this stage that pursuant to amendments to the Act that commenced in 2012, I am required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).

Additional Considerations: s.60CC(3)

In relation to s.60CC(3)(a), I would note that the “views of the child”, whilst significant, would be difficult to determine in this case given the child is only 4½ years of age. Nevertheless it may be something that the family consultant can assist the Court on, with observations perhaps of the child with each of the parents. Clearly the ICL may wish to be heard in respect of these issues.
I note that in her affidavit the mother makes various assertions about the child’s behaviour and alleged comments attributable to the child since separation.
In relation to s.60CC(3)(b) (“the nature of the relationship between the child and each of the child’s parents”), we have, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence will require testing.
Section 60CC(3)(c) (“the extent to which each parent has provided an opportunity to participate etc.) is a crucial factor in this case before me. The mother made a unilateral decision to leave the home with the child over three months ago and, apart from one brief occasion, has not facilitated the child spending any face to face time with the father. The reasons why such a covert departure was necessary, and the factors that preceded separation, together with the mothers reasons in not permitting the child to spend any meaningful time with father will, of course, require testing.
Under s.60CC(2)(c)a) (“the extent to which each of the children’s parents have fulfilled their obligations to maintain the child”), both parties make allegations against the other. The mother asserts that the child has consistently been in her care since birth and since separation. As stated, the mother has not facilitated the child spending any time the father since she initiated separation nearly four months ago.
As to s.60CC(3)(d) (“the likely effect of changes”), the father advocates for change and to some extent this is acknowledged by the mother. The parties disagree, however, on the circumstances for such change to occur. The issue of continued supervision, whether just for changeovers or for the entirety of the child’s time with father, is consider further below.
Any change, of course, needs to be appropriately handled. That said, prolonged supervision, including supervised changeover, may make it more difficult into the future for the child to be able to separate from the mother (or from a supervisor) when going into the father’s care.
If the supervision is limited to changeover only then there may be merit in such time being spent at a suitable public place such as a play centre, at least in the short term. If appropriate safeguards were in place, such a venue like a play centre may offer an appropriate venue for the child’s time to be spent with the father, but affords some comfort to the mother.
I now move to s.60CC(3)(e) (“the practical difficulty issues”). It is difficult for the Court to determine at this time, geographically speaking, whether the parties live in reasonably close proximity. This is because the mother is in transitional housing and does not wish to disclose the whereabouts of her residence to the father.
As stated, the mother seeks that the child spends all her time with the father in a supervised setting, preferably at a contact centre. I must state at this point that contact centres play a crucial role in facilitating children spending time with parents in circumstances where there is a risk of harm in relation to a child that has been proven, or an allegation of risk of harm that is yet to be determined. Contact centres are also subject to competing demands on the public purse with the consequence that, unless the parties can afford to engage the services of a privately run contact service or alternative, they may have to wait considerable lengths of time to secure a place. Alternatively, they may have to travel great distances to obtain a publicly supported place.
In this case, I note that the mother seeks that the child spends time with the father at the (omitted) Children’s Contact Service which is located in (omitted) Sydney. This would involve the child, the father and the mother (or her nominee) travelling from the (omitted) districts and returning.
During submissions the Court was advised that the waiting lists for that service remain long with the consequence that it may be up to 6 months before the child would be able to spend time with the father at that centre. Such a delay may make it more difficult for the child to maintain a meaningful relationship with the father. Hopefully the delay to use the service for changeovers only is not as lengthy as the delay in using the service for supervised time.
If the father’s time was professionally supervised outside of the contact centre, whether for all of the time spent or for changeovers only, I acknowledge that that would come at a considerable cost to the parties (presumably the father only). If such time was to occur at a suitable public venue such as a play centre, I further acknowledge that that would probably come at some modest additional cost to the father.
I now move to s.60CC(3)(f) (“the capacity of each of the child’s parents etc.”). In this case the parties each made criticisms of the other.
The mother, in particular, asks the Court to question the father’s capacity to care for the needs of the child, not just because he has had limited experience in being the child’s carer, but because of her allegations of family violence and her apparent fear of the father becoming aware of her current residential address.
The father disputes the mother’s assertion that he has only spent limited time caring for and interacting with the child, prior to separation. I also note that the father tendered in to evidence a copy of his Triple P certificate obtained from the (omitted) Family Centre in September 2013 (see Exhibit “AF2”).
In respect of s.60CC(3)(g) (“maturity, sex, lifestyle and background”), I note that the mother is of (country omitted) origin and that fact clearly influenced her decision to enrol X at the ‘(country omitted) School’.
In respect of s.60CC(3)(h) (“if the child is an Aboriginal child or a Torres Strait Islander child”), I am not aware that either the child or the child’s parents is or identifies as an Aboriginal or Torres Strait Islander.
In relation to s.60CC(3)(i) (“the attitude issues”), I simply reiterate my earlier comments.
In respect of s.60CC(3)(j) (“family violence”) and s.60CC(3)(k) (“family violence orders”), there are allegations of family violence made by the mother against the father (and vice verse).
The mother asserts that she has been the victim of family violence over a number of years that ultimately led to her decision to leave the home with X in early August 2013. I note that the mother waited until 17 September 2013 before approaching (omitted) Police Station with her allegations that ultimately led to the police initiating an application for an Apprehended Domestic Violence Order (“ADVO”). I further note that there is no evidence of there being any other ADVO-type order in existence between the parties. The father has consented to the continuation of the interim ADVO on a ‘without admissions’ basis. The Court was advised that he intends to defend the making of an ADVO on a final basis.
The allegations made by the mother are very serious and, if established, may very well justify her decision in covertly removing herself and the child from the home and not facilitating the child spending any time with the father. That said, the explanation given by the father, and in particular his decision to cause the mother to be sent a large number of text messages and Facebook messages, may also be reasonable given the mother’s decision not to provide the father with information as to X’s particular whereabouts and not allowing him to see or spend time with X.
The Court clearly is not in a position to make any findings at this interim stage in respect of family violence. The exchange of electronic messages included in the affidavit material provides some evidence that supports the assertions made by both parties for and against this issue.
As to s.60CC(3)(l) (“whether it would be preferable to make an order, that would be least likely to lead to the institution of further proceedings”), this is not applicable at this stage because this is an interim decision.
As to s.60CC(3)(m) (“any other fact or circumstance”), there are three issues that the Court wishes to comment upon further.
Firstly, I note again the issue of the mother’s fear of the father discovering her residential address. While the father indicated his agreement during submissions, on a without admissions basis, not to pose to the child any question that may lead the child to disclose the residential address of the mother, it is possible that the child may utter those details without being prompted to. Consequently, as I raised during submissions, the only way to avoid the child doing so would be to prevent her spending any time with the father. While such an outcome would eliminate the possibility of the child disclosing the mother’s current residential address, it would also be a totally un-child-focused outcome and a breach of the child’s right to spend time with a parent.
Secondly, a move to a more neutral and safe environment in addition to a contact centre, in my view, should also be part of the mix of options to consider. I have already indicated my view that play centres, for example, offer a child-friendly option and are generally cost effective, particularly for active four year olds. I understand that there are play centres available in the general area of the parties’ locations; that is, in the area bounded by (omitted) and (omitted).
Thirdly, as stated, the mother is in the advanced stages of pregnancy with the parties’ second child. The mother indicated in evidence that she is likely to give birth towards the end of this year and has made arrangements for X to be cared for during the period of her hospitalisation. The mother has also indicated quite clearly in her affidavit that she does not want the father anywhere near her during her hospitalisation. This raises an issue about the father’s suitability to care for the child during this period rather than strangers. This is not an issue that the Court was required to consider in this decision but is an issue that the ICL may wish to raise as a preliminary matter. Clearly, the pleadings will need to be amended to reflect the reality that there will be two children of the relationship in the New Year and that further orders may be required.

Conclusion

Having regard to the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and finds as follows.
Firstly, the matter will need to return with the benefit of the ICL, and I would like that to occur at the earliest opportunity notwithstanding the mother’s advanced pregnancy. I will list this matter to return on Tuesday, 21 January 2014 at 10:00am.
Secondly, there will be orders requiring both of the parties to forthwith make application to the (omitted) Children’s Contact Service to facilitate changeovers that can be accommodated and flowing from these orders.
Thirdly, failing any agreement between the parties, I am satisfied that in the short term, X’s time with the father should be supervised for the first two occasions before transitioning to supervised changeovers only, and with X’s time with the father to be spent in public places only. I am prepared to review this when the ICL appears on 21 January 2014 with the view to considering whether there should be a further transition to remove the necessity for such time to be spent only in public places (together with the issue as to whether the length of time to be spent and discussed below should be changed).
Until the parties can have the benefit of the (omitted) Children’s Contact Service and pending any other agreement between the parties, the father will be required to engage the services of a professionally accredited agency to supervise the first two occasions that X spends with him and to thereafter affect changeovers. I am obviously concerned about the potential cost to the father of this and the potential impact on any child support assessment.
Fourthly, failing agreement as to times and dates, I see merit in there being at least two occasions per week (being one weekday and one weekend day), as nominated by the father, for X to spend time with him. The time spent on each occasion will also build up over time (to be not more than 4 hours on any weekday and 6 hours on a Saturday or Sunday). Clearly the parties will need to be guided by the availability of a supervisor from a professionally accredited agency for the first two occasions. Similarly the parties will need to be guided by the availability of the (omitted) Children’s Contact Service or a supervisor from a professionally accredited agency to affect supervised changeovers thereafter.
The parties will be at liberty to provide the (omitted) Children’s Contact Service or a supervisor from a professionally accredited agency with a copy of the relevant Orders.
As stated, these interim parenting orders, and in particular the requirement for time to be spent in public places and an increase in the length of visits, can be reviewed following input from the ICL. Given the on-going apprehended violence order proceedings, it would be difficult for the Court to review the necessity for supervised changeovers but the ICL may seek to proffer a view on this on the next occasion the matter is before me.
As to the other areas now in dispute, I find as follows.
Firstly, in respect of the process of consultation in relation to major decision-making, I am satisfied that the simple wording of the order proposed by the mother is appropriate but that it be worded that “the parties consult about any long term decisions involving” the child. In the event that the ICL sees merit in adopting a different order, including the order proposed by the father, then the Court may reconsider that issue in due course.
Secondly, in respect of X having communication time with father, the Court is satisfied that the order as proposed by the father is appropriate. Consequently, there will be orders requiring the mother to forthwith facilitate X communicating with the father by way of either by phone or Skype communication between the hours of 6:00 pm and 6:30 pm on Tuesday and Thursday each week.
Thirdly, there will be orders that X not participate in any further therapy until the views of the ICL as to the merits of continuing such therapy can be investigated and put before the Court. I am satisfied that pending input from the ICL, the orders proposed by the Father, with some modification, in this respect should be made.
Lastly, there will also be order dismissing the relevant interim applications now determined by this decision. The father will need to file an Amended Initiating Application to properly set out the final orders he seeks.

There will now be Orders and notations of the Court to reflect this decision.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date: 10 December 2013

[2013] FCCA 2064

10 December 2013

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