FARNHAM & DELUCA

[2016] FamCA 340

FAMILY COURT OF AUSTRALIA

FARNHAM & DELUCA [2016] FamCA 340

FAMILY LAW – INTERIM PARENTING – Whether the children should spend more time, including overnight time, with the father – Where the father spends limited time with one child – Where the father recently commenced spending supervised time with the younger child – Where there are allegations of Family Violence – Where there is a Family Report

Family Law Act 1975 (Cth)

APPLICANT: Mr Farnham

RESPONDENT: Ms DeLuca

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: SYC 5417 of 2013

DATE DELIVERED: 11 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 24 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ralph

SOLICITOR FOR THE APPLICANT: Ralph Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fowler

SOLICITOR FOR THE RESPONDENT: Kyle Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : Mr Fowler Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Kyle Family Lawyers Robertson Solicitors

Orders:

PENDING Further Order:

1. The orders made 21 January 2014 be varied only as provided for herein.

2. Order 7 be varied to provide the father spend time with X as follows:

   (a)   During school term time (i.e. the term time as set by her school) is to be each Wednesday from 3.30 p.m. until 6.30 p.m.

   (b)  The time X spends with the father on Saturday, during school term time (i.e. the term time as set by her school), is to be from 9 a.m. until 6 p.m.

   (c)  During her school holiday periods each Wednesday and Saturday from 10 a.m. until 5 p.m.

   (d)  Such other time as the parties agree upon in writing.

3. Unless otherwise agreed to in writing, all changeovers of care required for each of the children by these orders, is to take place at the Suburb B police station.

4. The father is to spend time with the child C born … 2013 commencing 1 June 2016 as follows:

   (a)   Each Wednesday from 3.30 p.m. during school term time for X, until  6.30 p.m.

   (b)  During X’s School holiday time each Wednesday from 2 p.m. to 6 p.m.

   (c)  Such other time as the parties agree upon in writing.

5. Until 1 June 2016 the mother is to continue to make C available at the F Contact Centre (CACS) to spend supervised time with the father as the CACS arranges with the father. The father to meet the cost of those sessions.

6. In addition to the time the father spends with each of the children pursuant to the orders set out above, the father is to spend 3 hours with the children on Christmas Day from 9 a.m. to 12 noon and from 9 a.m. to 12 noon on Father’s Day; AND the father is to spend from 3 p.m. to 6 p.m. with both children on X’s birthday.

7. The time the father is to spend with C on and following 1 June 2016 is subject to and conditional upon the father confirming in writing to the mother and the Independent Children’s Lawyer that he has an appropriately fitted child safety seat in his motor vehicle to transport C. Unless and until the father complies with this order his time with C on and after 1 June 2016 is suspended.

8. On or before the expiration of seven (7) days from the date hereof the father is to provide to the Independent Children's Lawyer and to the mother’s solicitor an address for the place where he currently resides and a description of the facilities (including sleeping facilities) he has there for each of the children. He is to provide at the same time a photo of the cot he has for C to sleep in should that be necessary during the time C is in his care.

9. Each of the parents are hereby restrained by way of injunction in relation to the following matters:-

   ·Each of the parents be and are hereby restrained from using corporal punishment including physical discipline on or for each child;

   ·That each parent is hereby restrained from questioning each child about the other parents circumstances and household situation;

   ·That each parent is restrained from discussing the proceedings with each child.

10. The mother is to forthwith attend upon a General Medical Practitioner and obtain a mental health treatment plan for X and herself within fourteen (14) days of order to address domestic violence and family and parental conflict and related matters and advise the Independent Children’s Lawyer when a Mental Health Treatment Plan has been obtained.

11. Upon receipt of the Mental Health Treatment Plan the mother shall forthwith make an appointment with Dr D, Clinical Psychologist, or should he not be available, a therapist nominated by the Independent Children’s Lawyer.

12. The mother shall advise the Independent Children’s Lawyer of the appointment dates with the Clinical Psychologist, forthwith upon her obtaining same.

13. The father shall forthwith attend upon a General Medical Practitioner and obtain a mental health treatment plan to address issues of domestic violence and family and parental conflict related matters. The father is to forthwith advise the Independent Children’s Lawyer as soon as he receives that Mental Health Treatment Plan.

14. Upon receipt of the Mental Health Treatment Plan the father shall forthwith make an appointment with Dr D, Clinical psychologist, or should he not be available, a therapist nominated by the Independent Children’s Lawyer.

15. Should there be a gap in the Medicare rebate for therapy in relation to either of the mother, the father or X such costs are to be borne by father for the therapeutic intervention.

16. The mother and father shall within twenty one (21) days each enrol in one the following programmes (not to attend the same course at the same time) and advise the Independent Children’s Lawyer of the dates and time for the commencement of the nominated programmes:-

     Taking Responsibility- A Course for Men

     Parenting After Separation

     Managing Anger

     Circle of Security

17. The mother is permitted to have her nominee effect any necessary changeover required for the purpose of the court orders, upon the following conditions:

    (a)   The nominee is known to the children and the mother is satisfied the children are comfortable with that person effecting the changeover in her absence.

    (b)  Details of the person affecting the changeover, on each occasion, are notified to the father in advance of the changeover taking place (reasonable notice to be given). In this regard the mother may provide to the father details of a number of persons who may from time to time effect the changeover on her behalf and thereafter it will be unnecessary for the mother to provide any further notice other than the name of the person who will be present on such occasion.

    (c)  If the person effecting the changeover has not previously effected the changeover on behalf of the mother, then the mother is to provide a photo of that person in advance as well as other identifying information (full name) AND the mother is to ensure the person has a photo identification to show the father consisting of either an Australian driver’s license or a current passport.

18. The father is not to harass, intimidate or unnecessarily question any person who the mother might nominate to effect the changeover of care for the children to the father on her behalf.

19. On or after 1 October 2016 the father may apply to the Court for an extension of the time each of the children spends with him.

20. The Independent Children's Lawyer is to prepare a consolidated set of court orders into one document and circulate that document to each of the parties legal representatives for agreement. Once agreed the Independent Children's Lawyer is to provide the document to the Associate to Justice Le Poer Trench for the purpose of the Court formally noting the document accurately recites the current operative court orders.

21. Unless it is otherwise agreed between the parties in writing at a time before 1 October 2016, the father has leave to apply to the Court to vary the orders so as to be able to collect X from her school at the commencement of his time with her on school days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farnham & DeLuca has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5417/2013

Mr Farnham

Applicant

And

Ms DeLuca

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed on behalf of the father Mr Farnham by which he seeks unsupervised time with each of his children X born in 2009 and C born in 2013.  Both of those children live with the mother Ms DeLuca.  The children are represented through an Independent Children’s Lawyer (“ICL”). 

2. The father moved on an amended Application in a Case filed 24 March 2016.  He relied on the further amended Initiating Application filed 19 January 2015 and two affidavits.  The first of his affidavits was sworn on 29 February 2016 and the latter sworn on 24 March 2016.  The father’s Application sought to move, on an interim basis, the time he spent with each of the children so as to follow the recommendation of the single expert Dr E, whose report formed Exhibit A1 in the proceedings.  In relation to the child C the move sought by the father would see C spending unsupervised time with the father and for durations greater than that anticipated by the recommendation of the single expert.  I will refer to this matter later when considering the submissions made on behalf of the father.

3. The respondent opposes the orders sought by the father and moves on her Response to an Application in a Case which she filed on 22 March 2016.  She supported her Response with an Affidavit sworn 22 March 2016 and two paragraphs from her affidavit sworn 13 October 2014.

4. The ICL relied on the expert’s report which became Exhibit A1 and the child response memorandum dated 13 February 2015 which became Exhibit A2.

5. The ICL tendered a minute of order proposed by her, that document being identified as Exhibit ICL1.  The ICL also relied on orange tabbed markings in the file produced under subpoena by F Contact Centre, those tabs being attached to reports provided by that entity in relation to the time the father spent with the child C.

Operative orders

1. The current arrangements in relation to the subject children are determined by orders of the Court made 10 December 2013 and 21 January 2014.  Those orders provide in broad terms for the children to live with the mother and for X to spend time with the father at times agreed between the parents or otherwise each Wednesday from 3.00 p.m. until 6.00 p.m. with changeover to occur either at X’s school or Suburb B Police Station and each Saturday from 10.00 a.m. until 5.00 p.m. with changeover at Suburb B Police Station.  There is also to be communication between the father and X by telephone or Skype between the hours of 6.00 p.m. and 7.00 p.m. each Tuesday and Thursday.

2. The orders also provide for the children not to be removed from Australia.

3. There is no order providing for the father to have time with the child C however, notwithstanding that lack, the parties arranged for the father to spend time with C at the F Contact Centre.

The father’s case

1. The father seeks an increase in the time he spends with the child staged over a period from the time of the hearing until a date following 1 January 2018.  That time frame is far greater than the Court needs to consider on an interim application of this nature.

2. In the short term the father seeks time with X until 30 June 2016 from the conclusion of school on Wednesday until commencement of school Thursday and from the conclusion of school Friday until 5.00 p.m. Saturday in each week.  He seeks that from 1 July 2016 until 31 December 2016 that time be extended on weekends to conclude at 5.00 p.m. on Sunday (the amended Application being further amended during the hearing to state as set out herein) from 1 January 2017 the father seeks that the weekend time be extended to Monday morning. 

3. Following the separation in August 2013 the father had no contact for about a month with the child X.  Thereafter arrangements were made between the parents and the father commenced to spend time with the child.  The father describes unsatisfactory arrangements for him to spend time with the child until orders were made by the Court on 10 December 2013.  Those orders provided for a progression of time the father was to spend with the child.  The orders were varied on 21 January 2014.  Since that time the father says that on six occasions X was delivered to him by persons other than the mother.  The changeover was effected with persons unknown to the father.

4. The father describes how between the date of birth of C and 18 October 2014 he had requested on many occasions to spend time with C and those requests were not acceded to by the mother.

5. The father describes interaction between himself and X as appears in the Exhibit A2 in the words of the Family Consultant.  The words referred to in the evidence of the father describe an enthusiastic greeting and relationship between the father and X. 

6. The father refers to Exhibit A1 the report of Dr E.  That report was made in August last year.  There was no observation of the father and C alone however, a recommendation was made that “the father should have regular contact with the children”.  Dr E said “I would recommend that the twice a week contact continue for the next 24 months.  Gradually I believe contact with Fin could be introduced at the same time as X but I would suggest that this occur at handovers for half an hour initially.  This could then continue over 12 months and then once an attachment has developed increasing and allowing the father to have contact with C could occur.  I would then recommend that daytime contact until C is of a school age or five years old when overnight fortnightly weekend contact could be contemplated.”

7. The father describes a changeover at the Suburb B Police Station on 15 August 2015 in relation to X.  On that occasion C was present and the father picked the child up.  The father describes the mother said “Give him to me, it hasn’t been ordered”.  The father alleged the mother punched and pushed him.  The police intervened and the father held C while the mother was interviewed.

8. The father commenced supervised time with C at the F Contact Centre and had completed seven sessions with that service at the time of swearing his affidavit on 29 February 2016. 

9. The father filed a supplementary affidavit on 24 March 2016.  This affidavit supported a further application made by the father to be able to take the children to a memorial service for his mother who had recently died.  No date for the memorial service had been set due to a coroner’s inquiry being required.

10. In her Response to the Application in a Case filed 22 March 2016 the mother seeks orders in relation to the time the children spend with the father as follows.  In relation to X every Wednesday from after school or 3.00 p.m. if a non-school day, until 6.00 p.m. and every Saturday from 9.00 a.m. to 5.00 p.m.  In relation to C the mother seeks an order that until the end of June 2016 supervised time at F Contact Centre between C and the father continue.  This should take place each alternate Thursday from 12.00 p.m. to 2.00 p.m. or as otherwise scheduled by F Contact Centre in consultation with the parties.  From July 2016 that time should be extended to each Saturday when X is spending time with her father from 9.00 a.m. to 12.00 p.m.  Otherwise the children spend time with their father between 9.00 am and 12.00 p.m. on Father’s Day and on Christmas Day.

11. The mother seeks an order that unless otherwise agreed in writing changeovers continue to take place at the Suburb B Police Station.  Further, she seeks that a nominee be permitted to deliver X and C to the father at changeovers.  She seeks orders for play therapy for X and otherwise seeks injunctions and other orders to set a regime for interaction between the parents.

12. The mother relied on her Affidavit sworn on 22 Match 2016.  The mother in her affidavit under the heading “Relationship History” provided detail of violent and abusive behaviour by the father directed against herself during their relationship.  Thereafter she described the history relative to the development of X including that in July 2013 she commence kindergarten five days a week at a school in Suburb G.

13. When the parties separated X was four years of age. 

14. In September 2013 the mother made a complaint to police about the father alleging that he was stalking her.  The police applied for an Apprehended Violence Order (“AVO”)on behalf of the mother. 

15. On 9 October 2013 an interim AVO was made at the Suburb H Court by consent and without admission.

16. On 3 February 2014 a final AVO was made for the protection of the mother for a period of 12 months. The evidence is insufficient before this court to determine whether the proceeding was defended. No transcript has been provided, nor has a copy of the order been placed before the Court. If that be incorrect then I was not referred to that material.

17. On 12 April 2014 the father failed to return X at 5.00 p.m. pursuant to the Court orders.

18. On 12 December 2014 the father kept X overnight contrary to Court orders.

19. On 20 January 2015 an order was made for the parties to commence Intake Assessment at I Contact Centre in order to provide supervised time between the father and C.  On 11 May 2015 that organisation refused to provide the service.

20. On 13 May 2015 the father again kept X overnight and advised he would not return the child.  A recovery application was filed by the mother.  The father returned the child to the mother at the police station on 18 May 2015. 

21. The mother says that on 19 November 2015 the father commenced spending time with C.  This takes place once a fortnight at the F Contact Centre.  The father spends two hours with C.  It takes the mother an hour to drive each way for that contact and the cost of fuel for that contact places her under financial pressure.

22. The mother says that the weekly telephone calls between the father and X are very stressful.  She has difficulty convincing the child to participate in the phone calls.

23. The mother describes the difficulty she faces at changeovers.  She says the father holds “his phone in my face”.  He films or photographs the changeovers.  The child X is aware of the behaviour.  The mother describes the father’s behaviour towards her nominees who effect changeovers for her from time to time.

24. The mother set out her living arrangements and schooling arrangements for X.  The mother said that she did not know where the father lived or who lives with him.  The mother is concerned about the impact on X of witnessing violence between her parents and seeks some therapy to assist the child.

25. The mother complains that the father is in substantial arrears in relation to child support.  She asserts that there is $11,000 owed by the father.

26. In paragraph 25 of the mother’s affidavit 13 October 2014 she describes a particular interaction between she and the father which was of particular concern to her and which led to her applying for an AVO.

27. In paragraph 57 the mother sets out details of an incident which took place on 12 April 2014.  On this occasion the father did not return the child to the mother as required by the Court orders because he said it was too dangerous to drive due to his having broken windscreen wipers.  Thereafter, the mother sets out in great detail what occurred in relation to the return of X.

28. The ICL provided a proposed minute of order in relation to time for the children to spend with the father.  The provision is for a number of occasions on Wednesdays between 3.00 p.m. and 6.00 p.m. until 21 April 2016 where it is proposed that the time for C with his father would be each Wednesday from 3.00 p.m. to 6.00 p.m. and commencing Saturday 30 April 2016 each Saturday from 10.00 a.m. to 5.00 p.m.  There was a proposal for additional time during the July 2016 school holidays.  The time for the child to spend with the father was conditional upon the father confirming to the ICL and the mother’s lawyer that he has a suitable child restraint seat for C in his vehicle.  There are other proposals in relation to C.  In respect of X there is a proposal for the July school holidays.  There are other proposals in relation to therapy for the children.  The mother relied on reports from the F Contact Centre.  The ICL in particular seeks to highlight the observation of interaction between C and the father.

1. The pages identified by the ICL in relation to observations of the contact time between C and the father largely suggested a positive engagement for the child.  Those parts marked by the mother reflect her concern that the father is making either direct or indirect comments to the child which are critical of the mother.  The ICL has marked the intake assessment documents which are produced by the F Contact Centre in relation to each parent.  Each of the parents has significant criticism of the other which is detailed in these reports.  In particular, attention is drawn to the allegations of violence made by the mother. 

Submissions

Submissions By Independent Children's Lawyer

1. It was submitted that X has been spending time with the father since 2014 and that C started spending time with the father in November 2015.  The report of Dr E says that it is time to bring into commonality the time that C and X both spend with the father at least as to part thereof.  Recommendation Two contained on page 37 of the Exhibit A1, where Dr E recommended in August 2015 that day contact only between the father and X continue for a period of 24 months, was highlighted.  He also recommended robust family counselling take place.  The ICL said that Dr D would be recommended by the Independent Children's Lawyer to carry out the treatment. 

2. The attention the Court was drawn to page 32 of the expert’s report where reference was made to questioning of X by the father.  The Court was informed that two recovery orders have now been made against the father.  The ICL submitted the expert concluded that X had a good relationship with each parent but clearly was of the view that overnight time for X with the father not commence for some time.

3. The ICL pointed out that at the time the expert met with the family and thereafter prepared his report the father was spending no time at all with C.  Since then things have progressed significantly.  The father has now spent considerable time with the child and the reports from the F Contact Centre illustrate a bond between the father and the child existing or developing.

4. The proposal by the ICL would see the father having some “one on one” time with each of the children and it was submitted that there may be some concern about quickly moving to a circumstance where both children were with the father at the same time.  This concern really oriented around X’s special time that she has with her father not under the intrusion of the father having to attend to the greater needs of C given his age.

Submissions Of The Father

1. The father submitted that when considering the proposal of the Independent Children's Lawyer, the time for the progression from one occasion each fortnight to twice weekly, as sought by the father, is not sufficiently quick for the father.

2. The father points out to the Court that the report of Dr E was provided before he commenced spending any time with C.  That the time with C supervised by the F Contact Centre has clearly been for the benefit of the child and illustrates a good and developing relationship between the child and the father.  In relation to a concern by the ICL about the prospect of X being affected by not having one on one time with the father should the current order progress quickly to a situation where both children were spending time with the father, ignores the fact that X now lives with her mother and C and there is no reported behaviour on the part of X which would indicate she has any jealousy about that circumstance and not having sufficient one on one time with the mother.

3. The father also raised concerns about the practicality of the proposal of the ICL which would see C having to be returned during the time that X would then continue to spend with the father.  Such an arrangement, it was submitted, would be disruptive to the time the father might spend with X. 

Submissions By The Mother

1. The mother submitted that the proposal in her orders for X is a continuation of that which she has experienced pursuant to the current orders.  It was submitted that the proposal is consistent with recommendations contained on page 37 of the expert’s report.  The 18 month period proposed by the expert in those recommendations would not conclude until August 2017.

2. The mother submitted that the father’s proposal is silent in relation to where he lives. 

3. In relation to the time C should spend with the father the mother’s proposal for that time to commence in July is acknowledged not to comply wholly with the recommendation of the expert.  It is, however, submitted that the proposal is in general keeping with the expert’s approach.  Whilst conceding that there have now been seven periods of supervision of time between C and the father, each of those occasions was for two hours only.  The mother’s proposal is in advance of the time suggested by the expert.

4. It was submitted that the mother’s affidavit evidences a significant concern she has about the father.  The Court is required to have regard to the impact upon the primary caregiver of imposing a regime in relation to which she is not comfortable.  The creation of a level of anxiety in the mother is an important matter to bear in mind when determining this Application.

5. The mother relied on the written submissions provided (extensive) in her case outline document which addressed matters which it was submitted the Court should take into account when considering the s 60CC factors.

6. In relation to changeovers the apparent continued conflict between the parents, even at the police station, was drawn to the Court’s attention.  The father’s questioning of X as evidenced on page 32 of the expert’s report and the expert’s concern as to certain aspects of the father’s capacity as detailed on page 31 of the report were drawn to the Court’s attention.

7. The mother’s counsel informed the Court that the mother supports the proposal of the ICL in relation to therapy for the children with Dr D, however, there is an issue about meeting any “gap fees” which may be required to be paid to Dr D.  The mother is prepared to go to her general practitioner and obtain a “mental health plan”.  The mother submits that she is not in a financial position to be able to afford any “gap fees”.  She points to arrears of child support owed by the father which she says is in the order of $11,000.  She submits that if therapy is to take place then the father will need to meet any gap payment.

8. The circumstance of the mother being able to have changeover effected by a nominee was the subject of submission.  It was submitted that it is in the best interest of the children not to be potentially exposed to conflict between the parents at changeovers. 

9. It was submitted on behalf of the mother that the Court should be careful not to make the times for the children to spend with the father such that would act as an impediment to the mother being available to do work in “face painting”. 

10. It was further submitted that if the changeover for X required a 3.00 p.m. changeover on Wednesdays then there would be insufficient time for the mother to collect X from school and provide her at the changeover point at Suburb J Police Station.  The mother opposed any changeover at the child’s school at this time. 

11. In submissions in response the father raised concerns about the number of nominees which had been engaged by the mother for handover of X. 

Consideration of Section 60CC Matters

1. The Court is required to consider those subsections of s 60CC which clearly are in issue in the determination of this interim parenting order.  The applicant has addressed those issues in oral submissions and the respondent has addressed those issues in both written and oral submissions.

2. Each of the children are too young to have any views expressed by them taken into account in a way in which meaningful weight may be applied. 

3. The relationships between the children and each of the parents can be assessed from two independent sources of evidence.  The evidence of the single expert speaks to the relationship between the child X and each of her parents.  In relation to that the expert concludes that X has a good relationship with each of her parents.  In relation the child C objective evidence as to his relationship with the father can be found in Exhibit ICL2.  In the observations of the father with C, as contained in that exhibit, the reports indicate that the child interacted positively with the father and the father interacted positively with the child.  The reports indicate a relationship in which the child feels comfortable with the father in that particular environment.

4. I am as satisfied as I can be at this time that each of the children have a good and close relationship with the mother.  I also conclude that the children have an appropriate and emerging relationship with the father.  So far as X is concerned it appears there is real strength in the relationship between she and her father.

5. It is the father’s assertion that the mother has been restrictive in permitting him to spend time with the children.  On the mother’s part it is her case that she has been cautious in making provision for the children to spend time with the father, that caution largely arising out of her fear of the father promoted by what she described as family violence prior to the separation and since.  There are in place apprehended domestic violence orders restraining the father.

6. On the father’s side he alleges that the mother assaulted him whilst in the proximity of the Suburb B Police Station and action was taken by the father through the police in relation to that occasion.

7. On the father’s part it is his case that he has taken advantage of every opportunity which has been afforded to him to spend time with the children.

8. There is an allegation by the mother that the father is in arrears of child support to the extent of $11,000.  Her case is that the father has failed to pay child support for a considerable period of time.  The father admits that there are arrears of child support although he told the Court, through his counsel, that there is ongoing communication between he and the Child Support Agency and that in recent times he has made a lump sum payment to reduce those arrears. 

9. So far as any changes of circumstances which may impact on the children are concerned, the mother raises the concern about a hasty expansion of time either of the children spends with the father.  She urges the Court to tread cautiously given the history which she provides of interaction (violence) on the part of the father prior to separation and his unreliable compliance with Court orders. The Court was reminded by the mother of her having to institute proceedings on two occasions to obtain recovery orders in respect of X when the father failed to return the child as the Court orders had provided.  The mother’s case is that the father still has not proved himself to be a reliable caregiver and a parent who is aware of the impact on the children of his own decisions and behaviour.

10. There are practical difficulties involved in making parenting orders in this case because of the existence of current apprehended domestic violence orders and the circumstance of a requirement for changeover to take place at a nominated police station, namely Suburb J Police Station.

11. Each of the parents raises concerns about the capacity of the other.  The greatest concerns in this area are raised by the mother in her accusations against the father of extensive violence and abuse perpetrated on her during the course of the relationship.  On the father’s side he is critical of the capacity of the mother to allow the children to have an appropriate and meaningful relationship with him. 

12. Each of the parents is critical of the other in making assertions directly and indirectly that the other has failed to fulfil their responsibilities of parenthood.  On the mother’s side she points to the father’s failure to provide adequate child support and to in fact comply with and meet the current child support assessments.  She also points to his behaviour in questioning the children and in making her feel uncomfortable, at the very least, at changeovers.  She specifically refers to occasions where she says he has intimidated her.  She points to two occasions where the father has failed to return X as the orders required.  She points to the father’s behaviour towards her nominees on changeover. 

13. There is a lengthy history of allegations of family violence which the mother has provided in her evidence.  The current family violence order appears to have been made unopposed in a Local Court.  The nature of the evidence which was admitted to support that order has not been provided to the Court.

14. The father clearly raises a concern about the age of the children, in particular C, and his ability to develop a relationship with C if there are significant restrictions of the amount of time that he is able to spend with the child.

15. The Court is required to consider s 61DA when considering matters of parental responsibility.  In this case matters of parental responsibility have not been the subject of submission and there is no order for equal shared parental responsibility which has been made.  The parents currently exercise those rights pursuant to the provisions of the Family Law Act s 61C.

16. Section 65DAA requires some consideration, however given the confines that have been placed on the proposed orders by each of the parties and the ICL it seems clear that a number of the ingredients to satisfy the Court that substantial and significant time will take place between the children and their father are demonstrated by the proposed orders.  Clearly, as the case approaches a final hearing, the question of overnight time and more extensive time for the children to spend with their father will need to be addressed.  That is not something which has been seriously canvassed in this hearing. 

Conclusion

1. I am satisfied that the child X has a good relationship with her father and is happy to spend time with him.  I am satisfied that the mother supports X spending time with the father at least in the limited manner in which it has taken place thus far.  A matter for concern is whether, if the Court extends the amount of time for X to spend with the father beyond that which the mother could tolerably bear, what effect would that have on the mother’s capacity as an ongoing carer for the children.  It is reasonable, on the evidence before the Court (particularly the expert’s evidence), to conclude that there is a significant prospect of the mother being highly anxious if the Court’s orders were to extend to the extent proposed by the father. 

2. I am satisfied that the recommendation of the single expert should be given very considerable weight in the determination of this interim proceeding.  Thus, what Dr E says about the time that X should be spending with her father needs to significantly inform the order of the Court.

3. In relation to the single expert’s report and the child C, I accept the submission from the ICL that the father’s relationship with the child has been demonstrated to a degree which was not available for Dr E to assess at the time he prepared his report.  The ICL submits that the reports from the F Contact Centre point to a good and appropriate relationship demonstrated as existing between the child C and his father.  The ICL suggests therefore that the degree of caution which the Court might otherwise apply in making an order in relation for C to spend time with the father, could be reduced slightly in order to progress the relationship between the two. 

4. The ICL and the father further point out that the cost of the supervision is solely borne by the father at this time and a continuation of the supervision order in the nature in which it currently stands may be unnecessarily onerous on the father.

5. With all that in mind I propose to make orders guided by the single expert’s report and particularly the submissions of the ICL. 

6. The orders which the court will make will, as far as possible, avoid the children being exposed to conflict between the parents and certainly ensure that X is not embarrassed by disputes taking place between her parents at the front gate of her school. There will be no changeovers between parents at the school.

7. The “no changeover at school” provision is necessary from June this year because from that time it will be necessary for the father to have both children together on Wednesday afternoons. That would involve the mother delivering C to the school gate so that the father could collect both X and C from that place if the school continues to be the place where the father commences to spend his time with X. Such a changeover at the school gate, at this time, still holds a significant risk that the parents will react in a way which would make the children feel uncomfortable. Such a circumstance should be avoided. However, it is generally regarded as desirable by many parents that each has a connection to the children’s school if that is possible given the dynamic of their relationship. Thus, as time progresses and the parties improve their ability to correspond and interact in a child focused manner, it would probably be desirable to have the father collect the children from school and pre-school either when he starts his time and/or when he concludes his time with the children.

8. The cost of the therapy, which each of the parties agrees to partake in with Dr D, as proposed by the Independent Children's Lawyer, is said by the mother to be out of her budget availability. There is no reliable evidence before the Court as to the financial circumstances of either parent at this time. There is evidence that the father is substantially in arrears with child support. There is evidence to suggest the father has an income, although the amount of same is not known. At this time I do accept the mother has a limited financial capacity to fund the therapy which is highly desirable for X. I accept the father may have that capacity. I propose, at this time, to order the father to meet any “gap payment” which may be required by Dr D as part of the therapy he provides to the members of this family.

9. In the orders sought by the Independent Children's Lawyer she required the children to undergo a paediatric development assessment, however, the necessity for such orders was not the subject of address/submission and so at this time I will not make that order. If the parties agree that such an assessment is necessary then the Independent Children's Lawyer can provide a consent minute of the order sought and I will attend to that in chambers.

10. I make orders as set out at the commencement of these reasons.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 April 2016.

Associate: 

Date:  11 April 2016