FARRELLY & EAST

[2016] FCCA 24

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARRELLY & EAST [2016] FCCA 24

Catchwords:
FAMILY LAW – Interim parenting – where father not currently spending time with children – where parents actions and history of care of children erratic and inconsistent – where each parents’ stated concerns about the other are inconsistent with their actions – family violence – where the father’s emotional health is unstable – where objective evidence raises concerns about the father – supervised time ordered – discussion about Court’s role in making orders where parents have adopted a mutual inconsistent stance.

Legislation:

Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS FARRELLY

Respondent: MR EAST

File Number: WOC 487 of 2015

Judgment of: Judge Altobelli

Hearing date: 8 December 2015

Date of Last Submission: 8 December 2015

Delivered at: Wollongong

Delivered on: 22 January 2016

REPRESENTATION

Solicitors for the Applicant: Carter Ferguson Solicitors

Solicitors for the Respondent:	Hilton King Lawyers
Solicitors for the Independent Children's Lawyer:	Verekers Lawyers

ORDERS PENDING FURTHER ORDER

1. The Children, X born (omitted) 2011, Z born (omitted) 2011 and Y born (omitted) 2010 (“the Children”), live with the Mother.

2. The Children shall spend time with the Father as follows:

   (a)supervised by CatholicCare (omitted) on times and dates stipulated by Catholic Care but no more than two hours per fortnight  on the basis that:

   (i)The Father shall make contact with Catholic Care for the purpose of completing the intake process;

   (ii)Upon the Mother being informed that Catholic Care that the Father has completed the intake process, she shall make contact with Catholic Care for the purpose of completing the intake process;

   (iii)Thereafter, the Mother shall ensure that the Children are taken to Catholic Care on the occasions stipulated by Catholic Care for the purpose of the Children spending time with the Father.

   (b)alternatively, supervised by a privately funded service (“the nominated service”) as agreed, for no more than two hours per fortnight at times and dates as the provider directs and at the sole expense of the Father.

   (c)The Father is to notify the Mother and the Independent Children’s Lawyer within 7 days of his nominated supervised contact service.

3. In the event that the Father fails or refuses to attend at Catholic Care or the nominated service on the times and dates as stipulated by Catholic Care or the nominated service on more than two occasions, then the Father’s time with the Children shall be suspended in the absence of a reasonable explanation for his failure to attend.

4. Liberty is granted to the Independent Children’s Lawyer to re-list this matter on 7 day’s notice in the event that issues arise as a result of Order 3 above.

5. The Father and his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the Children, X born (omitted) 2011, Z born (omitted) 2011 and Y born (omitted) 2010 from the Commonwealth of Australia.

6. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said Children, X born (omitted) 2011, Z born (omitted) 2011 and Y born (omitted) 2010, on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the watch list until further order of the Court.

7. The parties be restrained from physically disciplining the Children.

8. The parties shall refrain from making critical or derogatory remarks about the other party or members of their family in the presence or within the hearing any of the Children, and the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of her family in the presence or within the hearing of any of the Children.

FURTHER ORDERS

1. The matter be adjourned to 11 March 2016 at 9:30am for Mention.

2. Leave be granted to the parties to issue more than five subpoena, provided that they consult prior to issuing such subpoena to avoid duplication.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 487 of 2015

MS FARRELLY

Applicant

And

MR EAST

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the interim orders that the Court has made.  The interim hearing was heard by the Court on 8 December 2015.  Judgment was reserved because of the pressure of other cases, and because of the need to carefully consider the documents that had been tendered in evidence.

2. The case relates to three children, Y, born (omitted) 2010, and twins Z and X, born (omitted) 2011.  The children are thus 5 and 4, but will shortly turn 6 and 5.  The only orders in place under the Family Law Act1975 (Cth) (“the Act”) provide that the Father be restrained from removing Y from school, each parent complete the intake for Catholic Care at (omitted), and the appointment of an Independent Children's Lawyer. The children currently live with their mother. They are not spending time with their father.

Background

1. The children’s father is 33 years old, their mother 30.  In 2004, the Father immigrated to Australia.  The parents commenced a relationship in 2007 and married in 2009 in (country omitted).  In (omitted) 2009, they came to Australia, where they have been living since then, primarily in (omitted).

2. Whilst final separation appears to have taken place in February 2015, the evidence of both parents creates the impression of an unhappy, turbulent relationship that involved prior separations and reconciliations.  Before the date of final separation there was at least one time when the   Mother left the home, stayed in a refuge, left the children in the Father’s care, but then returned home.  There was also at least one occasion when the Mother travelled to (country omitted), leaving the children in the care of the Father for about 10 days.

3. The period after separation was quite turbulent.  The Father moved out of what was then the former matrimonial home, leaving the children in the Mother’s care.  He was spending regular time with them until about April 2015.  The Father travelled to (country omitted) between March and May 2015, leaving the children in the Mother’s care.  Whilst he was away, the Mother had to move out of the former matrimonial home and lived in the accommodation occupied by her partner, Mr S.

4. Apparently, when the Father returned from (country omitted) in May, he went to the home of Mr S, his former brother-in-law, and discovered that the Mother and children were living there and that she was in a relationship with Mr S.  The Mother eventually moved out of that accommodation.  In May and June, the Father appeared to spend regular time with the children and they lived primarily with the Mother.

5. In July, the parents attended a Legal Aid mediation in which they agreed that there would be equal shared parental responsibility, that the children live with the Mother and spend time with the Father each weekend from 4:30pm Friday until Monday at 8:30am.  However, less than two weeks later, on 14 July 2015, the Mother entered into consent orders providing that the children live with the Father, but these consent orders were never formally made.

6. The Father paid the Mother about $12,000.  The payment is not reflected in the consent orders, but the payment is not disputed by the Mother.  In any event, from 14 July 2015, the children came into the Father’s care.

7. There was an incident on 25 July 2015 in which the Father left out in the front yard of the Mother’s home a burnt out children’s pram that he had purchased from her, ostensively to use with the children.  On 30 July 2015, an interim Apprehended Violence Order (“AVO”) was made against the Father, and he was charged with stalk and intimidate.

8. Whilst the Mother spent time with the children up to 18 September 2015, they remained primarily in the Father’s care.  However, on 7 October 2015, the children returned to their mother’s care, apparently with the Father’s consent.

9. On 18 September 2015, the Father consented to a final AVO against him, naming the Mother as a protected person, and including the restriction that he not go within 50 metres of the Mother’s residence or place of work, and not destroy, deliberately damage or interfere with property of the Mother.  In addition, he pleaded guilty to the charge of stalk and intimidate and was placed on a good behaviour bond for 20 months.

10. The above summary of the events that took place last year are not substantially put in contention by either parent.  It clearly has been a turbulent period for the children and for the parents.

11. This is a case where both parents have expressed very serious concerns about each other particularly in terms of parenting capacity, ability to prioritise the children’s need and protect them, and family violence.  A particular feature of this case is that both parents appear to have acted quite inconsistently with their stated concerns.

12. The need for clear orders to be implemented in relation to the children is obvious.

The Competing Proposals

1. On an interim basis, the Mother sought orders for sole parental responsibility, that the children live with her and spend time with their father each alternative weekend for two hours at a supervised contact centre.  She also sought orders that the children remain on the airport watchlist and a number of ancillary orders.

2. The Father’s proposal for interim orders was for there to be equal shared parental responsibility, for the children to live with the Mother, but spend time with him on an unsupervised basis each alternate weekend from Friday, 3:00pm until Sunday, 7:00pm, for half the school holidays, and then special days.

3. The children were represented by Mr Peter Williamson, the Independent Children's Lawyer.  He proposed interim orders consistent with those proposed by the Mother, but that in the alternative, supervised time could be implemented using the privately paid service known as (omitted).

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Evidence

1. The Mother relied on her Affidavit of 3 September 2015, the Father on his Affidavit of 27 November 2015.  This evidence is very helpfully summarised in the Case Outline document prepared by Peter Williamson, the Independent Children's Lawyer.  The Case Outline document is reproduced in full, as schedule 1 to these reasons for judgment.

2. There was other evidence in this case.  Exhibit ICL1 is the Child Dispute Conference Memorandum prepared by Family Consultant Ms S as a result of a conference on 19 October 2010.  She records the very serious allegations that the Mother makes against the Father, and similar concerns the Father makes against the Mother.

3. There are a number of limited admissions the Father makes.  For example, in response to the Mother’s allegation that he was violent, controlling, and emotionally and sexually abusive towards her throughout the relationship, the Father responded that he found the separation difficult and considered that, at times, he had not acted as appropriately as he could have, though he denied the abuse allegations.  He did not dispute that he had burnt the pram, but asserts that he did this in order “shame” the Mother, but he did not accept that his behaviour was intimidating or frightening.

4. The Father’s state of mind is reflected in a comment made to the Family Consultant that he and the Mother will reconcile.  He appeared to struggle with the concept that the Mother considered the relationship ended.

5. The Memorandum records the Family Consultant’s concerns that the children have experienced significant changes in their living arrangements, and that they have been exposed to parental conflict and violence, against which they need to be protected as a matter of priority.

6. The Family Consultant records the parent’s agreement that the children love each of their parents, and the Mother conceded they are missing their father and ask regularly about him.

7. Exhibit A2 consists of documents produced by the (omitted) Medical Centre, which includes reports prepared by the Father’s treating clinical psychologist, Ms E.  The two reports specifically tendered are dated 19 April 2015, and 3 October 2015.  These reports record that the Father was referred to the psychologist by his doctor for treatment of his anxiety, depression, frustration and anger.  In her report of 19 April 2015, as a result of inquiries she made with the Father’s permission of the police, she noted the inconsistency between what the Father had told her in therapy and the police version of actual events.

8. The latest report from Ms E is dated 3 October 2015.  She regards the Father as having “gone from bad to worse.”  The overall impression produced by these records is of the Father’s unstable emotional health and his preoccupation of wishing to reconcile with the mother, including his belief that that’s what she wants, despite objective evidence to the contrary.

9. Exhibit A1 consists of the documents produced by New South Wales Police.  These documents are extensive.  The parents’ involvement with the police, in various ways, goes back to 2007, but for present purposes, in the context of family law matters, commencing April 2014.  The latest incident recorded is 6 October 2015.  What is striking about these records is, once again, the inconsistency between the concerns that each parent records, their reported behaviour (particularly the Father’s) and the Mother’s actions in not only allowing him to spend time with the children, but actually agreeing (for a time) that they should live with him and spend time with her.  The police records acknowledge the significance of cultural issues, including the Father’s sense of entitlement in relation to the Mother, his belief that he was, in some ways, not accountable for his actions towards her, and his willingness to lie to the police about certain matters.

10. In relation to the police records in particular, Peter Williamson, the Independent Children’s Lawyer, submitted that, in reality, both parents (who relied on various police reports contained in the exhibit) had cherry-picked parts of events and certain records, and sought to use it for their benefit.  He submitted, and indeed the Court accepts, that a more objective review of the evidence would raise concerns about both parents.  In relation to the Father, he submitted the Court would be concerned about his behaviour, but in relation to the Mother, he submitted the Court would be concerned about her ability to prioritise the needs of the children over her own.  This is a fair assessment of the evidence, and one that the Court adopts.

The Submissions Made and Discussion

1. On behalf of the Mother, it was submitted that given the seriousness of the concerns she raises, and the evidence of the Father’s erratic behaviour, and the objective concerns about his emotional health in Ms E’s documents, the Court should proceed conservatively, and make orders that protected the children and the Mother from any risk of harm.  Supervised time was advanced as the best means of achieving this.  On the Mother’s behalf it was submitted that the Father’s erratic and indeed violent behaviour escalated after separation, which was in itself an issue for concern.

2. The Mother recognised the need for the Father to spend time with the children, but submitted that they also had a need to be protected from any form of harm.  On her behalf it was submitted that even the limited admissions the Father made, together with the objective evidence of the making of the final AVO and the conviction on the charge of intimidation, all provided a sound basis for the Court’s concerns about the Father.

3. The Father’s case involved a direct attack on the credibility of the Mother, particularly her allegations of violence and abuse.  On behalf of the Father it was submitted that there was a total lack of consistency in the Mother’s reports to police about these matters.  Moreover, her actions were totally at odds with the concerns that she now expresses to the Court, particularly when she had encouraged so much time between the children and the Father, and indeed agreed that they should live with him.  Even after the burnt pram event, the children continued to live with him, spend time with her, and she returned the children to him, even though she knew the consent orders had not been formally made.

4. In those circumstances, it was submitted on the Father’s behalf, not only would the Court not place weight on the Mother’s allegation, but there would be every reason to be concerned about her parenting capacity, such that it would be very much in the children’s interests that they spend regular time with their father.

5. On behalf of the Independent Children’s Lawyer, it was submitted that the Court should focus on the uncontested facts and the objective evidence.  The fact is that the Father pleaded guilty to the intimidation charge and was on a 20 month good behaviour bond.  The fact is that the Father consented to a final AVO.  Ms E’s evidence, being his own treating psychologist, raises serious concerns about the Father’s emotional health and might explain some of his erratic actions.  The fact that the Father had lied to the police, and then acknowledged that to the police, casts a shadow of doubt over his credibility generally.

6. Peter Williamson submitted that there was evidence of the Father’s proprietorial attitude regarding the Mother, which is a further risk to the children, and to her.  The Mother’s inconsistent behaviour was acknowledged, but did not ultimately change the Independent Children’s Lawyers’ submission.

7. The Court accepts the submissions made on behalf of the Mother and Independent Children's Lawyer.  It is very hard to make sense of the evidence of the Mother and Father, without it having been properly tested in the forensic exercise of cross-examination.  The uncontested facts, and the more objective material, speak far louder and clearer.  The Father’s actions, and the state of his emotional health, is clearly a real concern and presents a potential risk to the children.

8. There is a sense in which there is far more to this case than first meets the eye.  But there are certain matters that cannot be dealt with in the context of an interim hearing, and the Court can only do the best it can.

9. There is certainly enough material before the Court for it to form the strong impression that the Mother has acted in ways which are quite inconsistent with the concerns that she not only now states to the Court, but has previously held in relation to the Father.  The inconsistency of these concerns, and the fact that she has sought to facilitate the Father’s time with the children so actively, might give the impression of not prioritising their needs.  But, even on a worst case scenario where it is to be found that the Mother had singularly failed to protect the children from their father, it does not change in any way the fundamental role of this Court, which is to make orders in the best interests of the children, irrespective of what she has done.

10. It was implicit in the Father’s case that the Court’s actions in relation to the children should in some way be fettered by what the Mother has herself done.  That submission has superficial attraction, but, in reality, it seeks to substitute what the parents considered being the best interests of the children, for what the Court decides it to be, even on an interim basis.  The Court has a statutory duty which is inconsistent with that implied premise.  Whether or not the Mother has acted protectively in the past, and whether or not the Mother has acted in ways inconsistent to the concerns that she now raises, the Court has to make an assessment of what is best for these children now on the basis of all the information before it.

11. Having said this, the Court acknowledges that there are some cases where the parents own agreements about children will carry substantial weight.  If this dispute were, for example, merely about time, and did not involve allegations of violence, abuse and mental health issues, the Court’s treatment of this issue might be different.  But that is not the case.  These children have been exposed to the parents’ turbulent relationship and have lived completely unstable lives.  Whether that is because of something the Mother or Father have either done or failed to do is irrelevant.  It is an unsatisfactory state of affairs for the children and orders need to be put in place to achieve stability for them.

12. Until the Court can be satisfied about the stability of the Father’s mental health, his time with the children needs to be supervised.  He can choose whether it be through the supervised contact facilities provided by Catholic Care in (omitted), or whether it be through a privately funded service.

13. Whilst there was no discussion about this during the interim hearing, there are already indicators in this case that an Expert’s Report might be needed, rather than a Family Report.  The Court will adjourn this matter for a period of six weeks, to enable the parents and the Independent Children's Lawyer to give further consideration to this.

14. The orders proposed by the Mother, which are set out in detail as the interim orders contained in her Application filed 10 September 2015, will provide the basis for the Court’s interim orders.  However, they will provide as an alternative that the Father have supervised time, provided by (omitted) or another service which the parties agree to, and which the Independent Children's Lawyer consents to.

15. Given the Father’s erratic behaviour, and the evidence before the Court that he managed to travel to (country omitted) in circumstances where he says he was impecunious, the watchlist order proposed by the Mother is appropriate.  The other orders sought by her appear relatively uncontentious and will be made.

Parental Responsibility

1. The Mother sought sole parental responsibility, the Father equal shared parental responsibility, and implicit in the Independent Children's Lawyer’s proposal was the suggestion that it was not, in fact, necessary to make an order at this stage.  The Court agrees that, for the time being, it is unnecessary to deal with the issue of parental responsibility.  There is a sense in which the Court believes this case has a long way to go in terms of its evidence.  There are concerns about the Mother, as there are about the Father.  In these circumstances, it is best not to get involved in a decision about parental responsibility.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:       22 January 2016

Schedule One

FAMILY LAW ACT 1975

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT WOLLONGONG  File No. (P)WOC487/2015

BETWEEN

MS FARRELLY  Applicant

AND

MR EAST  Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

DATE OF INTERIM HEARING: 8 December 2015 at 2:00pm

CORAM:  JUDGE ALTOBELLI

CASE OUTLINE DOCUMENT

 

CASE OUTLINE DOCUMENT BY INDEPENDENT CHILDREN’S LAWYER

1. NATURE OF PROCEEDINGS

   The time that the father might spend with the children Y born (omitted) 2010 and the twins Z and X born (omitted) 2011, and whether such time should be supervised.  

2. ORDERS SOUGHT BY APPLICANT MOTHER

   The mother seeks inter alia Orders that:

   i.Sole parental responsibility;

   ii.Children live with mother;

   iii.Father spend supervised time at Catholic Care;

   iv.Injunction restraining the father from removing or attempting to remove the children from the Commonwealth of Australia;

   v.Restraint from physically disciplining the children;

   vi.Non-denigration Order.

1. ORDERS SOUGHT BY RESPONDENT FATHER

   The father seeks inter alia Orders that:

   i.Equal shared parental responsibility;

   ii.Children live with mother;

   iii.Children spend time with father each alternate weekend Friday to Sunday and half school holiday period;

   iv.Order restraining the mother from bringing the children into contact with Mr S.

1. COMMENT

   i.The children have not been interviewed by the ICL;

   ii.The parties attended a Child Dispute Conference on 19 October 2015;

   iii.There appears to be no issue between the parties that the children will continue residing with the mother.

2. PLEADINGS

   The Applicant mother appears to rely upon the following documents:

   i.Application filed 7 September 2015;

   ii.Affidavit filed 7 September 2015;

   iii.Notice of Risk filed 7 September 2015.

   The Respondent father appears to rely upon the following documents:

   iv.Response dated 27 November 2015;

   v.Affidavit of Respondent father sworn 27 November 2015;

   vi.Notice of Risk dated 27 November 2015.

3. THE APPLICANT MOTHER’S EVIDENCE

   Affidavit of mother sworn 3 September 2015

   i.The mother was born (omitted) 1986 in (country omitted) and is presently 29 years of age and commenced living in Australia in 2009. The Respondent father (Mr East) was born (omitted) 1983 and is presently 32 years of age. The parties commenced a relationship on (omitted) 2007 and were married on (omitted) 2009. They separated on a final basis in February 2015. There are three children of the relationship namely Y a son born (omitted) 2010 and twin daughters Z and X born (omitted) 2011 (Par 1-5);

   ii.After the marriage the parties started living with Mr East's mother in (omitted), Sydney but were asked to leave when the mother wished to become financially independent and in December 2009 began residing in (omitted) with Mr East's sister Ms M. The parties had a huge argument approximately 2 weeks prior to the birth of Y and the father told her to walk back to (country omitted). From that time the relationship was difficult and they constantly fought. The mother did not wish to have children again straight away but the father refused to allow her to use contraception and she discovered she was pregnant with twins which caused her to go into severe depression being unable to cope. In 2011 she rang the Domestic Violence Helpline and was referred to a Women's Refuge. The father continued to be abusive and aggressive. The mother wanted to study English but the father became very angry at her request saying she would lose him if she wanted to become an independent Western woman (Par 6-10);

   iii.In March 2013 the mother commenced her (omitted) degree at the (omitted) University. She started a friendship with an (nationality omitted) lady but the father refused to allow her to have friends outside the home. The father kicked her out of the home in April 2014 when they were living at (omitted). They had an argument about a friend at University and the father became extremely angry. The mother refused to leave the home but the father pushed her causing her to fall to the floor and then he pulled her by the legs outside of the house. He threw her bag and wallet outside. She tried to regain entry but could not. She walked away from the house and called the Police who subsequently took her to a motel at (omitted) and then later to the Women's Refuge (Par 11-14);

   iv.The parties had a big argument a couple of days prior. Their daughter Z was scared and crying and had to be reassured by the mother. The child was trying to act protectively towards the mother. The mother stayed at the refuge for a few days and missed study at the University. She was later told by her family that the father was telling everyone that she had left the house and children to become a prostitute. She felt pressured to get back to her children and family over the rumours that her husband was spreading as she did not wish to bring shame to the family and cause more problems so she returned to the father. They lived in the sister's house from May 2014. In January 2015 the parties were struggling financially as Mr East had lost his job and he became very angry about this yelling and shouting in front of the children. They had a big argument about his purchasing a $2,000.00 toy helicopter. She was fearful so she finally agreed and paid the money from her salary but after she did so he told her that they were separated. He continued to be constantly aggressive and sexually assaulted the mother. He insisted that she abide by the conditions that he imposed and that she blindly obey him (Par 16-20);

   v.In February 2015 the father had collected his belongings and left the home and the mother believes that this was their final separation. On 3 March 2015 the father texted her to say that he had divorced her under (religion omitted) and that he wanted nothing to do with her or the children. The mother believed that he had gone overseas and remarried whilst there. On 18 March 2015 the mother came home after collecting the children and found the father's car parked in the driveway. She was wary about going into the home. When she did so she found the father and asked him to leave but he refused and became extremely angry. He pulled her by the hands and pushed her onto their son's bed and then attempted to sexually assault her. The children called to him to get off mum. He told her that she would have nothing unless she did what he said. The mother threatened to call the Police. The father subsequently left (Par 21-23);

   vi.The mother called the Domestic Violence Helpline and the Police subsequently arrived but they refused to take a statement for an AVO. The mother continued to struggle with all her bills including child care fees, car finance etc. She believed that the father had left for (country omitted). On 14 April 2015 Ms M the father's sister told her that she had to leave the home. The sister also took possession of the motor vehicle. Ms M's daughter contacted her father Mr S and he offered for the mother to stay with him at his place until she was able to find somewhere else to stay. She stayed there with the children for approximately 1 month in a 2 bedroom apartment as she had nowhere else to go. On 2 May 2015 the father returned from (country omitted) and contacted the mother wanting to see the children and wanting to reconcile to which she refused. He came to the home and Mr S asked him to leave but the father became very upset and angry and threatened the mother. She contacted the Police and made a statement (Par 25-28);

   vii.On 3 May 2015 the father texted the mother asking to see the children and she agreed for him to spend time with the children from his mother's house. After 15 minutes the father texted her asking her to come and collect the children. She refused and he threatened to call the Police. He said that if she did not collect the children he would take them to the Police. She subsequently received a call from Ms A at the local police station who advised that she needed to collect the children otherwise DOCS would have to be involved. She immediately attended to collect the children. On 15 May 2015 Mr S received a notice from his Landlord that he was not allowed to have guests at the home for more than one month. The mother again ended up staying at (omitted) on (omitted) for 4 weeks. She was worried about the effect of living there on the children and asked the father to care for them until she could obtain another house or apartment to rent. The father nevertheless continued to harass her about all sorts of things including their relationship (Par 29-31);

   viii.The father approached her waving money at her offering to have sex for payment. He made a similar request on another occasion to go to the car with him and he would pay her motel fees for the week. The mother became angry at his requests and strongly refused. The father threatened to kill her saying that it would be easier to kill her when in (country omitted). The mother was very concerned and from this point onwards always ensured that she met with the father in a public place. On 16 June 2015 she was able to secure private rental accommodation for herself and the children and arranged to obtain bedroom furniture and other items from the father (Par 32-36);

   ix.On 1 July 2015 the parties attended mediation and signed Heads of Agreement a copy of which is attached to her Affidavit providing for the children to live with the mother and spend every weekend with the father. When they spent time with the father the children would be very angry towards the mother basically repeating everything that he said about her. She believes that he seemed to be brainwashing the children against her. The mother had considerable debt rising to $12,000.00 and was basically living off credit cards. The child care fees were $3,000.00. She was at breaking point and became very depressed and suffered from anxiety about the whole situation. The father offered to pay her debts and have the children live with him temporarily and she could see them and spend time every weekend. The mother would have to sign papers at his lawyer's office. She was desperate to clear her debts and get better from the depression that she was suffering so she agreed to what he suggested and attended his lawyer's office on 14 July 2015 and signed Consent Orders. The father then gave her $12,000.00 in cash and she immediately went and cleared all her debts. The children also went with him that day and the mother handed over all the children's belongings. The mother contacted the Police and asked about whether the father could take the children overseas without her permission (Par 33-41);

   x.The mother missed the children greatly. The father continued to contact and harass her. In mid to late July around midnight she heard a knock at her door. She found that it was the father in his pyjamas. He offered to pay her money for sex. She became extremely angry and told him to leave. On 24 July 2015 she advertised the children's pram for sale for $250.00. The father texted her about selling the pram and offered to buy it himself. When they met he was yelling and shouting at her calling her all sorts of names and threatened to call the Police if she came to see the children again. He threatened to burn the pram and burn her inside the car as well. The mother was worried and scared for herself and worried that she would never see the children again (Par 42-45);

   xi.The mother woke up the next morning to find the pram burnt out in the front door of her house. It had the number 250 sprayed on the pram. She was scared about the father's threat to burn her in her car. She contacted the Police and provided a statement and photos. The Police obtained an AVO which was subsequently listed for Hearing on 18 September 2015. She was scared when she went to the Court and the father made comments to her in (language omitted). He had also been trying to blackmail her and telling her to cancel the Court Hearing and stop the AVO or she would never see the children again. On 10 August she received a letter from the Court declining the Application for Consent Orders and it was subsequently dismissed (Par 46-50);

   xii.On Friday 14 August the mother attempted to collect her son from school but the Principal did not allow her to do so. She attempted to collect her daughters from day care and they were shocked to see her but hugged her and started crying. They said that they thought they would never see her again. The father told them that they should spit in their mother's face if they saw her. She took the girls home for the weekend. The girls told her that the father would leave them with his mother when he worked night shift. On 16 August 2015 the father called her saying that Y was sad that she did not collect him on Friday when she took the girls. He told her that the only way to make everything better and fix all the issues would be to cancel the Court action and stop the AVO. The father continued to constantly demand cancellation of the Court and AVO otherwise she would never see the children again. He was posting pictures of the $12,000.00 that he paid on Facebook commenting on the mother selling the children. The father had always been controlling and aggressive (Par 52-56);

   xiii.The mother was concerned that the father was attempting to use the children as a bargaining tool and a way to threaten and harass and intimidate her. The mother has little family support as the rest of her family live in (country omitted). She understands that the father has been seeing a psychologist but she was not sure but due to his mental health issues. She understands the father is currently living in a one bedroom unit. The mother is extremely concerned at the threat that the father poses not only to himself but to the children because of his violence and his threats to kill her and keep the children away from her (Par 57-62);

4. THE RESPONDENT FATHER’S EVIDENCE

Affidavit of Respondent father sworn 27 November 2015

a.The father was born (omitted) 1983 and is 32 years of age. The mother was born (omitted) 1986 and is 29 years of age. The father came to Australia in 2004 and met the mother in 2007 online, meeting her personally in (country omitted) in 2009 where the parties were married on (omitted) 2009. They travelled to Australia around (omitted) 2009. Both are now Australian Citizens. They separated in February 2015 (Par 1-6);

b.The father has worked during the marriage and the mother has worked casually or part time. The children have been in child care 5 days a week since they were born at (omitted) Child Care Centre at (omitted). The father has been employed as a (occupation omitted). He objected to the mother putting the children in day care full time where the parties had to pay whether the children attended or not. The father incurred considerable debt owing around $40,000.00 on credit cards and a personal loan. He prepared meals for the family and washed clothes and washed the children and cared for them. The mother spent a lot of time on the internet talking to her family and she was sleeping during the day while the children were in child care. Neither parent drinks alcohol nor consumes illicit substances and neither has any criminal convictions. The mother travelled to (country omitted) for 10 days from 23 November 2014 and left the children in the care of the father (Par 7-17);

c.After separation the mother and the children lived in a property in (omitted) owned by the father's sister but left that property on 15 April 2015 and moved in with Mr S at (omitted), (omitted). Mr S was previously married to the father's sister Ms M but they separated 8 years ago and they are divorced with 2 children aged 15 and 13. Both children resided with the father up until April 2015 when the father's niece Ms A moved out when the mother and the children moved in. Mr S was born on (omitted) 1968 and is aged 47 and he was a friend of the father who says he commenced a relationship with the mother. The father says that the mother was calling Mr S her boyfriend. The father visited their home on 2 May 2015 when Mr S came out and was very angry and chased the father off catching him and threatening to kill him. The father reported the matter to the Police who took no action (Par 18-26);

d.On 3 May 2015 the mother and Mr S took the children to the home of the paternal grandmother and left them there. The father attended the Police Station advising the Police that he did not wish to take the children unless it was legal and that he was scared of Mr S. He said the Police requested the children be brought to the Station so that arrangements could be made for them to be collected by the mother. When the parties all attended the Police Station, Mr S tried to grab the shirt front of the father. The Police grabbed him and put his hands behind his back and handcuffed him. The mother took the 3 children with her. The father did not know whether Mr S had been charged as a result of what occurred. The father said he had difficulty communicating to the Police because of his language and an AVO was therefore not issued (Par 27-31);

e.The father is aware that Mr S is a regular user of marijuana and also uses prescription drugs. He has a diagnosed mental illness with schizophrenia, bipolar and depression and is in receipt of a disability pension due to mental health issues (Par 32-35);

f.The father says that the mother wanted more children because she would get more financial support from the government which she viewed as generous in Australia. The father denies that he was abusive or aggressive towards the mother in any way. He denies he objected to the mother studying English at (omitted). He says he encouraged the mother to pursue her studies in Australia. He denies objecting to the mother having friends and in fact met her friends. He acknowledges the parties did have an argument around April 2014 over the mother sending money back to (country omitted) to her family. The mother left the home voluntarily and left the children with him but after that he accepted the mother back into the household. He denies the allegation that his daughter Z is scared of him. He says that both parties were careful not to argue in front of the children. He has spoken to the mother's family about their problems and says that her family are aware that she has a hot temper and behaves impulsively (Par 36-45);

g.In January 2015 the father's working hours were cut back to 20 hours a week. He agrees that he saved money to purchase a toy helicopter for $1,800.00. He denies allegations that he sexually assaulted the mother in front of the children. He says the parties separated in 13 February 2015 and between that date and April 2015 he saw the children regularly on a daily basis. He would return the mother and the children back to their home and then return to his mother's home where he was staying. He denies that he behaved in an aggressive manner towards Ms Farrelly on 18 March 2015. The mother had stayed the previous night and they had relations and also had dinner together with the children. He says they were playing a wrestling game on the lounge and attempted to engage the children. He later received a telephone call from the Police who advised him to attend (omitted) Police Station. After hearing his version of events the Police took no action in regard to allegations made against him. He says the mother told him that she was crying to the Police and that they believed her, that she was acting and that the Police believed this (Par 46-57);

h.At the end of March 2015 the father travelled to (country omitted) with his mother and returned in early May 2015. He denies the allegations that he had divorced the mother and says that he contacted her regularly from (country omitted). Upon his return he saw the children again most days and by mid May 2015 the children were living half with him and half with the mother who had a room at (omitted) in (omitted). The mother moved to a rental property at (omitted) where the father paid the bond and gave her all the furniture. He denies the allegation that he offered to give her $3,000.00 for quick sex. He denies that he threatened to kill the mother. In July 2015 the mother approached the father to give her $12,000.00 and she would sign the children over. He met her on 14 July 2015 and gave her $12,000.00 in cash and then attended his solicitor’s office where the mother signed Consent Orders along with an Acknowledgement confirming that she was entitled to obtain legal advice. The father says he paid the $12,000.00 because he was concerned about the children living with Mr S. The Family Court failed to make the Consent Orders and the mother then withdrew her consent. The children resided in the sole care of the father between 14 July 2015 to 18 September 2015 and the mother did not see the children very often during that period (Par 58-68);

i.The parties continued to communicate regularly by message and phone. The mother contacted him on several occasions to come to the house because she was scared. He denies offering $50.00 to have sexual relations with her. He denies throwing $250.00 in the face of the mother when purchasing the pram and denies saying he would burn the pram and her inside her car as well. He admits complimenting her on her appearance when they attended Court on 18 September (Par 69-75);

j.In July 2015 the father burnt the pram at (omitted) in a park about 6 hours beforehand and left the burnt pram on the front lawn of the mother but did not see her. He wanted her to feel shame at her actions. He left the pram at her home at about 2:00am. The Police came to his home the next day and he told them what he had done with the pram and he then attended the Police Station which he did the next day and he was charged with stalk and intimidate and handed an Apprehended Violence Order. The matters came before the Court on 18 September 2015 at (omitted) and he entered a plea of guilty and consented to the Apprehended Domestic Violence Orders (Par 77-82);

k.On 14 August 2015 the mother attended at the preschool and removed the two girls. She attempted to remove Y from school but the Principal refused. She returned the children and they continued to reside with the father (Par 83-88);

l.Whilst the father was in Court on 18 September the mother went to the home of his mother and collected all 3 children who have been in her care since that day. He did see the children on 7 October 2015 at the (omitted) Medical Centre where the children ran towards him and hugged him. He did not speak to the mother. He left the surgery and the 3 children followed him. He then walked with the 3 children to his car and the children jumped into the car. He tried to close the door but the mother would not let go of the door. The mother was then assisted by a (nationality omitted) person from the chemist and the father told the children to go with the mother. He got them out of the car and gave them to the mother. He had not seen the children since then. He went to the school of Y in Mid-October 2015 and spoke to the Principal who said he was not allowed to see Y and that he should not come back to the school. He has been to Catholic Care to enrol and the first appointment for Intake Assessment is on 18 February 2016 (Par 89-98);

m.The father proposes that the children remain living with the mother, and that Y keep attending (omitted) Public School. He says the girls no longer attend preschool but the mother has a private babysitter. He is happy to assist if required. He proposes that he spend time with the children each second weekend from Friday after school until Sunday at 7:00pm along with half school holidays and religious festivals (Par 99-108).

1. The Court must consider the matters set out in Section 60CC being the primary considerations and the additional considerations referred to in Section 60CC(3) to determine what is in the children’s best interest.

   i.MEANINGFUL RELATIONSHIP

   Section 60CC(2)(a) requires the Court to consider the benefit to the children of having a meaningful relationship with both of their parents. The father says that he prepared meals for the family and washed clothes and washed the children and cared for them. He said the mother on the other hand spent a lot of time on the internet talking to her family and sleeping during the day while the children were in child care. The mother says that she was subject to abuse and aggression, anger, assault and sexual assault from the father during the relationship some of which took place in the presence and/or hearing of the children. The father denies that they ever argued in front of the children. It appears that the mother has been the primary carer of the children though it is difficult to ascertain why the children should be in child care 5 days per week as alleged by the father. The parents agreed at the Child Dispute Conference that the children love each of their parents. The mother acknowledged that the children are missing their father and that they regularly ask about him. There is no dispute that the children will continue residing with the mother and both parties seek Orders in that regard.

   ii.PROTECTING THE CHILDREN FROM HARM

   Section 60CC(2)(b) focuses on the need to protect the children from harm. As stated above the mother alleges that the father was angry, abusive and aggressive towards her in the presence of the children. The father denies such claims and says that the parents were careful not to argue in front of the children. When the Police attended over an incident involving the parties on 18 March 2015 Police enquiries revealed the father was being treated for anger issues and depression. The Police believe that he displayed "a sense of arrogance and it was apparent that he felt he had a right of ownership towards the victim (the mother). He did not understand that it was not appropriate to disregard the victim's request not to attend the (omitted) property whenever he felt he wanted to and without prior arrangement with the victim." The father indicated to the Police that he wished to reconcile the relationship but if she did not wish to do so then "he would make life difficult for her and he would not take care of the children on the weekends to teach her a lesson." The more likely scenario it appears is that the father would act in a way oblivious to the effect upon the children of his anger towards the mother.

   iii.CHILDREN’S VIEWS

   The children are not of an age where their views should be given any weight.

   iv.THE NATURE OF RELATIONSHIPS

   Section 60CC(3)(b) requires the Court to consider the nature of the children’s relationships with their parents and other relevant persons. The relationship between the parents is extremely poor. The mother makes extremely serious allegations against the father both in the Child Dispute Conference and also in her Affidavit material. The mother's allegations are supported to a significant extent by the subpoenaed material from the Police in which it becomes clear that the father has lied to the Police on more than one occasion to avoid his transgressions and/or to exaggerate the behaviour of other parties such as Mr S. It does not appear that any relationship between the parents can be restored even to the extent of co-parenting the children. As set out above and as referred to in the Child Dispute Conference Memorandum both parents acknowledge that the children love each of them. One of the questions for the Court to decide in due course is how the nature of the relationship between the father and the children might affect the children's relationship with their mother in an adverse way.

   v.LIKELY EFFECT OF CHANGE

   Section 60CC(3)(d) requires the Court to consider the likely effect of changes in the children’s circumstances. At this stage, the children have not been spending time with their father. There is little information before the Court about what effect that is having upon the children. The mother proposes the father spend time on a supervised basis through Catholic Care. The father now appears to propose supervised time through (omitted) by way of correspondence between the parties (letter dated 25 November 2015). It is the practice of (omitted) to provide written reports which might be of assistance to the Court in monitoring the behaviour of the children in the care of the father and the father's ability at least on a supervised basis, not to denigrate and criticise the mother.

   vi.ISSUES OF PRACTICAL DIFFICULTY AND EXPENSE

   Both parties appear to reside in the (omitted) so that difficulty and expense should not be an issue. If supervised time is to commence through (omitted) then there will be expense involved for payment of such supervised time. 

   vii.PARENTAL CAPACITY

   The father criticises the mother for having the children in child care five days a week, for spending time on the internet, for sleeping whilst the children were at child care, for sending money back to her family in (country omitted) and for having a relationship with Mr S. The mother makes many allegations against the father in regard to his alleged controlling and abusive behaviour and his assaults upon her. The father is presently being treated for depression and anger management issues. Various Police subpoenaed materials indicate the father would "teach her a lesson," or "I'll show you, I'll show you." On 3 May 2015 the father indicated to the Police that "He would not look after his children.”

   He also told the Police that, "He did not want the children and both himself and his mother did not have the capacity to look after the children as their flats were too small." The parental capacity of the father in particular appears to be significantly lacking as he is prepared to use the children as a weapon against their mother and will refuse their care in an effort to gain control over the behaviour of the mother. 

   viii.ATTITUDES TO THE CHILDREN AND TO THE RESPONSIBILITIES OF PARENTHOOD

   The previous submissions are repeated. The father clearly lacks insight as to the effect of his behaviour on the children.

   ix.FAMILY VIOLENCE

   Final Apprehended Domestic Violence Orders were made against the father on 18 September 2015 in the Kiama Local Court. He consented without admission. From the subpoenaed materials obtained from the Police it appears that on balance with the evidence available and the lack of credit of the father the Court would have imposed such Orders at Hearing. The children appear to have been subjected to family violence.

   x.BEST INTERESTS

   It is in the best interest of the children to live with the mother and spend supervised time with the father to allow the Court time to explore whether it will be in the best interests of the children to spend significant and substantial time with their father. The father is presently being treated by his psychologist for anger issues and depression. The mother advised the Police that she feared an increase in the negative pattern of behaviour of the father back on 18 March 2015. The father's behaviour continued to worsen to the extent that Apprehended Violence Orders were made against him arising from an incident which occurred on 25 July 2015.

2. The Objects of the Act set out in Section 60B are extremely important in this matter in particular and as referred to previously herein in attempting to protect the children from harm. It appears clear that the children are possibly at risk in the father’s household but this needs to be explored further as he appears unable to fulfil his duties and meet his responsibilities concerning the care, welfare and development of the children, or ensure the children receive, under Section 60B(1)(c) adequate and proper parenting to help them achieve their full potential.

10.The Court is required to give a full investigation of the competing Applications before the Court but that can only occur at a Final Hearing. The Court necessarily can only make a shortened enquiry based on competing and untested allegations and what objective evidence might be available. In the case of Goode the Full Court required consideration of Sections 60CC, Section 61D and Section 65DAA in dealing with an Interim Application. The Court is required to consider the competing proposals of both of the parties and make what findings of fact it can based on the evidence supporting such proposals. The Court is not assisted by the fact that neither parent provides any material from supporting witnesses. The Court is assisted however, by the subpoenaed materials.

11.FATHER'S CREDIT

i.On about 25 July 2015 the mother reported a matter to the Police. She had met the father the previous day when the parties became involved in a heated argument. The father had purchased a pram from the mother which she had listed for sale. The mother alleges that the father had made threats to burn her in her car. Early the following morning the mother found the pram burnt out on her front lawn. The father denied any knowledge of the burnt out pram to the Police. Police subsequently viewed CCTV footage which clearly showed the father removing the pram from the boot of the mother's vehicle and placing the pram in the boot of his own vehicle. Sometime during the evening he burnt out the pram and left it on the mother's front lawn. He subsequently acknowledged to the Police that he had lied. Similarly, in his own Affidavit he failed to disclose that he had lied to the Police. He does disclose that he wanted the mother to feel shame for her actions and that was why he did it. He was subsequently charged and convicted of stalk and intimidate and at the same time Apprehended Violence Orders were made against him.

ii.An incident occurred on 3 May 2015 which has been partially described above when the mother was obliged to attend the Police Station to collect the children as the father refused to care for them. The father in his Affidavit refers to being assaulted by Mr S and the Police grabbing Mr S putting his hands behind his back and handcuffing him. There is no indication in the Police Subpoenaed materials that any such thing occurred.

iii.The father refers in his Affidavit material as being $40,000.00 in debt. The father subsequently travels to (country omitted) from the end of March 2015 to early May 2015. He gives no indication how he afforded to take such trip. He was subsequently able in July 2015 to provide the mother with $12,000.00 in cash in exchange for her signing the children over. He indicated that his working hours had been cut back to 20 hours a week from January 2015 though he says he was able to purchase a toy helicopter for $1,800.00 from his savings. The mother says that she paid for the helicopter.

iv.The father objects to Mr S coming into contact with the children. The father says on the one hand that Mr S was his friend but on the other hand that he was aware that Mr S is a regular user of marijuana and prescription drugs and that he has been diagnosed with mental illness including schizophrenia, bipolar and depression and is in receipt of a disability pension due to his mental health issues. The father's Affidavit was received on 27 November 2015 so it was not possible to issue a further Subpoena to the Police with respect to Mr S.

12.ORDERS SOUGHT

The ICL supports Order 3 to 9 as sought by the Applicant mother;

The ICL would also support an Order for supervised time with (omitted) if such an Application is made by the father.

Dated this  2nd  day of  December,   2015

Peter Williamson – Independent Children’s Lawyer.