Francis and Francis

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANCIS & FRANCIS

[2019] FCCA 994

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

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

Applicant:

MR FRANCIS

Respondent:

MS FRANCIS

File Number:

PAC 2503 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

28 February, 1 March 2019

Date of Last Submission:

1 March 2019

Delivered at:

Parramatta

Delivered on:

6 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Forshaw Lawyers

Counsel for the Respondent:

Ms Murphy

Solicitors for the Respondent:	Rosetta Lo Presti
Counsel for the Independent Children’s Lawyer:	Mr Givney

Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

All parenting Orders in relation to the children be discharged.
[X] born … 2004 and [Y] born … 2006 (“the children”) shall live with the mother.
The mother shall have sole parental responsibility for the children.
[X] shall spend time with the father in accordance with her wishes.
[Y] shall spend time with the Father as follows:
(a)Each alternate Saturday from 10 am to 4 pm; and
(b)Each alternate Thursday from after school to 8 pm. During the NSW Gazetted school holiday periods, the time shall commence at 10am and conclude at 4pm pursuant to this Order.
(c)From 10 am to 4 pm on Christmas Eve in odd numbered years;
(d)From 10 am to 4 pm on Christmas Day in even numbered years; and
(e)Each Father’s Day from 10 am to 4 pm.
For the purposes of changeover, as agreed, or in default of agreement:
(a)Where the children’s time with the father is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the children’s school; and
(b)At all other times changeover is to occur at the McDonald’s family restaurant in Suburb A.
Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the hearing or presence of the children or either of them.
Both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other within 24 hours of any change thereto.
Each party shall ensure that the children and each of them are transported to any sporting or cultural activities in which the children or either of them are participating from time to time and which occur at time when the children are in the care of each party together with any training or other tuition relating to that activity.
Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.
Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children or either of them to discuss with the father the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
The mother shall provide to the father, details of the children’s general practitioner, and any other medical specialist, including counsellor or psychologist, that the children may attend upon, from time to time, and the father shall be permitted to contact any medical practitioners/specialists/counsellors to discuss the children’s condition or treatment, and these orders shall be sufficient authority for him to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2503 of 2016

MR FRANCIS

Applicant

And

MS FRANCIS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the children [X] born … 2004 and [Y] born … 2006 (“the children”). [X] is currently in Year 10. The child [Y] is currently in Year 7. Both children attend the School B at Suburb C.

Proposals

The Independent Children’s Lawyer’s (“ICL’s”) proposed parenting Orders were set out in her Counsel’s Case Outline dated 28 February 2019:
1. That all parenting orders in relation to the children be discharged.
2. That [X] born … 2004 and [Y] born … 2006 live with the Mother.
3. That the Mother have sole parental responsibility for the children.
4. That [X] spend time with the Father in accordance with her wishes.
5. That [Y] spend time with the Father as follows:
a. Each alternate Saturday from 10am to 4pm; and
b. Each alternate Thursday from after school to 8pm. During the NSW Gazetted school holiday periods, the time shall commence at 10am and conclude at 4pm pursuant to this Order.
6. That for the purposes of changeover, the parties shall meet at the McDonald’s family restaurant at ___________.
7. That the Mother and the Father are hereby restrained from denigrate the other in the presence or hearing of the children or either of them.
The mother’s proposed parenting Orders were set out in her Amended Response filed 30 January 2019:
PARENTAL RESPONSIBILITY
1. That the mother Ms Francis (the “Mother”) also known as Ms Francis, has sole parental responsibility for making decisions about major long term issues in relation to the children.
AND THAT such matters are to include, but are not limited to the following:
(a)     Current and future education
(b)     Religious upbringing
(c) Health of the children
(d)     Changes in living arrangements of the children that make it difficult for the children to spend time with the other parent.
LIVE WITH SPEND TIME WITH
2. That the children live with the Mother.
3. That the children spend time with the Father according to their wishes, and either in the Contact Centre OR and under the supervision of the Respondent Mother or of an independent contractor from the Suburb D Contact Centre who will supervise in a public venue outside the Centre.
OTHER ORDERS
4. That each parent notify the other as soon as practicable in the event that the child suffers any illness or injury requiring attendance at, or admission to a hospital or requiring specialist medical treatment including the nature of the illness or injury the treating physician’s details and the proposed treatment if any.
5. The Mother and Father notify the other in writing not later than twenty four (24) hours of any change to their mobile number and email address.
6. That for the purposes of communication between the parties with regard to the child each party shall text the other and for that purpose each party shall keep the other supplied with their current mobile number.
7. That the Mother and the Father be and are hereby restrained from criticising the other parent in the presence or hearing of the child or allowing any other person to criticise the other parent in the presence or hearing of the child.
8. The parent with whom the child is living with is to take the children to and from its sporting and other extra- curricular activities or social activities.
9. That the mother shall sign any document necessary to authorise and direct the school to inform the father by correspondence any documents in relation children’s progress, such as reports, photos and copies of school correspondence, newsletter or any other material produced by the school and distributed to parents or relating to the children specifically as he requests in writing.
10.    That the Father be restrained by injunction from attending upon the children’s school and their other school activities.
The father’s proposed parenting Orders were set out in his proposed Minute of Order, Exhibit E:
1. All parenting orders in relation to the children be discharged.
2. [X] born … 2004 and [Y] born … 2006 (the Children) live with the Mother.
3. The Mother have sole parental responsibility for the children.
4. [X] spend time with the Father in accordance with her wishes.
5. [Y] spend time with the Father as follows:
a. each alternate Saturday from 10am to 4pm; and
b. each alternate Thursday from after school to 8pm. During the NSW Gazetted school holiday periods, the time shall commence at 10am and conclude at 4pm pursuant to this Order.
c. from 10am to 4pm on Christmas Eve in even numbered years;
d. from 10am to 4pm on Christmas Day in odd numbered years; and
e. each Father’s Day from 10am to 4pm.
6. For the purposes of changeover, as agreed, or in default of agreement:
a. where the children’s time with the father is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the children’s school; and
b. at all other times changeover is to occur at the McDonald’s family restaurant in Suburb A.
7. Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the hearing or presence of the children or either of them.
8. Both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other within 24 hours of any change thereto.
9. Each party shall ensure that the children and each of them are transported to any sporting or cultural activities in which the children or either of them are participating from time to time and which occur at time when the children are in the care of each party together with any training or other tuition relating to that activity.
10.    Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.
11.    Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children or either of them to discuss with the Father the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
12.    The Mother shall provide to the Father, details of the children’s general practitioner, and any other medical specialist, including counsellor or psychologist, that the children may attend upon, from time to time, and the Father shall be permitted to contact any medical practitioners/specialists/counsellors to discuss the children’s condition or treatment, and these orders shall be sufficient authority for him to do so.

Material relied upon

The mother relied upon the following documents:
a)Amended Response filed 30 January 2019;
b)Notice of Risk filed 23 September 2016;
c)Affidavit of Ms Francis filed 30 January 2019;
d)Affidavit of Ms E sworn 30 January 2019.
The father relied upon the following documents:
a)Amended Initiating Application filed 28 July 2016;
b)Affidavit of Mr Francis filed 22 January 2019.
The following exhibits were relied upon:
a)Independent Children’s Lawyer’s Case Outline (Exhibit A)
b)Family Report of Ms F dated 9 August 2018 and Child Inclusive Conference Memorandum of Ms G dated 29 October 2017 (Exhibit B);
c)Sleeve 17, Documents produced under subpoena by NSW Police – 3 page criminal history (Exhibit C);
d)Trial Plan (Exhibit D);
e)Applicant Father’s Proposed Minute of Order (Exhibit E);
f)Sleeve 11, Documents produced under subpoena by NSW Police – Tabs A.11.1 and A.11.2 (Exhibit F);
g)Sleeve 17, Documents produced under subpoena by NSW Police – Tab 17.1 (Exhibit G);
h)Sleeve 9, Documents produced under subpoena by Region 1 Contact Centre – Tab A 9.2 and Blue tabs R1 – R9 (Exhibit H);
i)Sleeve 10, Documents produced under subpoena by Region 1 Contact Centre – Tabs 10.1 and A 10.2 (Exhibit I);
j)Sleeve 19, Documents produced under subpoena by School H Public School – Blue tab (Exhibit J);
k)Sleeve 3, Documents produced under subpoena by NSW Police – Tabs R1 – R18 (Exhibit K);
l)Sleeve 12, Documents produced under subpoena by Dr J – Tab R1, R4 and R5 (Exhibit L);
m)Sleeve 7, Documents produced under subpoena by FACS Sleeve R1 and R2 (Exhibit M).

Credit and reliability

The Court found the father to be a generally straightforward and honest witness. Ultimately the Court had concerns in relation to aspects of the mother’s evidence, particularly when in conflict with the father’s evidence.
It did the mother no credit that she failed to refer to her own convictions for assault in her Affidavit, in circumstances in which she was alleging that the father was physically violent and should continue to have his time with the children supervised. The Court refers to, inter alia, the mother’s inconsistent evidence relating to the children recently ceasing to spend supervised time with the father at the contact centre, and the Court accepts the ICL’s submissions in this regard. The Court accepts the ICL’s submissions generally in relation to this issue of the credit and reliability of the mother’s evidence.
Where the father’s evidence is in conflict with the mother’s evidence, the Court prefers the evidence of the father.

Evidence

The father is aged 48 years and the mother is aged 47 years.
The parties began a relationship in 2002 and were married in … 2003. They separated on a final basis on 23 January 2015.
The mother has a child from a previous relationship, Ms K born … 1996.
The mother was the primary carer of the children during the relationship. The father assisted the mother, when he returned home from work and on weekends, with the care of the children. The father participated in the children’s schooling life during the parties’ relationship.
In about 2004 the parties had a disagreement about the family business that the father ran with his brother. The police attended the home and spoke with the mother. The father was arrested and charged with assault. An ADVO was taken out for the protection of the mother against the father. The father was also charged with contravention of an AVO.
The father became ill in 2008 due to kidney failure. He commenced dialysis and it became difficult for him to spend significant time with the children.
In 2011 the father took the family for a holiday to the Region 2 for ten days, which was a positive trip for the family.
Shortly after separation in about 18 February 2015, an interim ADVO was made against the father with the mother as the protected person. The mother had alleged that the father had verbally threatened her and the children. In about mid May 2015 the ADVO was dismissed with no evidence being offered. After this event, the father did not contact the mother and he did not spend time with the children until about early 2017. The father commenced proceedings in this Court on 1 June 2016.
In early 2017 the father commenced spending supervised time with the children at a contact centre. After about three to six months the children were more comfortable spending supervised time with the father. The children then spent positive time with the father, supervised at the centre, despite the children and the father having limited activities to engage in. This supervised time has continued up until early 2019.
Since separation the parties have had little communication and they have not had any further significant incidents of family violence.
The father wishes to take the children out to the city, to the movies, to lunch and to spend time shopping together. Historically the father has tried to spend time with the children on special occasions such as birthdays and Christmas through correspondence to the mother’s solicitors, but this has been unsuccessful.
During the parties’ relationship, they argued several times each week. Some of these arguments took place in front of the children. The parties often argued about the father’s employment, as his brother and the father previously ran a family business. The parties were both verbally and occasionally physically violent towards one another.
In about mid-2015 the father attended a church in Suburb C for the first meeting for [Y]’s Holy Communion. The father entered the church hall and sat next to [Y] and the mother. The mother then grabbed the father’s hand and wanted to hold hands. The father was very uncomfortable as the ADVO had just expired and he was worried about what the mother might do. He then walked out of the church hall and the mother followed him outside. The mother then started talking and an argument ensued between the parties. The parties were outside talking for about one hour and then the father left and went home. The Court accepts the father’s version of this incident.
When the child [Y] was about six or seven years old the father lightly tapped her across the back of her head in response to an issue relating to the child eating food. This child started crying and Ms K then called the mother.
Towards the end of the parties’ relationship the father gambled often, but he used his own money and did not take any money from the mother or the children. He used to gamble to relax and try and cope but he did not borrow money from people to gamble.
The father was on dialysis from about 2008 until 2018. He had a dialysis machine at home and he was previously required to undertake kidney dialysis every second day. The dialysis process took six hours. In mid-February 2018 he underwent a kidney transplant. He no longer has to do dialysis.
The father lives in a six bedroom house with his three brothers.
The father commenced the post separation parenting course Keeping Kids in Mind in early May 2016. He completed this course in early June 2016. In early May 2016 the father also commenced an anger management course. This was completed in late June 2016. The father found this program helpful and he applied it in his everyday life.
The father does not currently pay child support. The mother has not sought an assessment through the Child Support Agency. The parties do not have any communication presently. When the father sees the children on special occasions he gives them gift vouchers and sometimes cash. The father is happy to contribute towards costs for the children.
The mother caused the children to be referred to a psychologist Dr J in late October 2017. The mother annexes to her trial Affidavit two reports from this psychologist in relation to each child, dated 10 May 2018.
Despite a request from the ICL to the mother’s solicitors to have the psychologist attend Court to be cross-examined, the psychologist did not give oral evidence. It is not clear from the psychologist’s report how many occasions the children consulted with the psychologist. There was no consultation between the Family Report writer and the psychologist. The psychologist’s conclusions that the children have been suffering from post-traumatic stress disorder and anxiety, including separation anxiety in the child [Y]’s case, are not significantly explained by the psychologist in his brief reports. The psychologist did not meet with the father at any stage. At no time did the psychologist observe the children with the father. The Court attaches little weight to the psychologist’s reports.

The father gave oral evidence.
The father agreed that the attendance of creditors at the family home, in relation to his brother’s business, caused anxiety to the mother and children.
The father agreed that the children presently have no relationship with his brothers, their uncles.
The father agreed that the presence of the children on those occasions when they witnessed the parties yelling, pushing and shoving each other would explain the children’s nervousness towards him.
The father told the Court that he learnt from the anger management course that he participated in to be as patient as much as you could.
The father stated that if the children were spending time with him and they requested to be returned, he would comply with their wishes and take them back to the mother.
The father stated that it did concern him that the children may have thought he had abandoned them after he had no contact with them following the separation. He stated that initially he did not want to hurt the children by seeking to contact them.
The father confirmed that he was unable to spend time with the children following the date of his surgery in February 2018 until about June 2018, by reason of the surgery.
The father confirmed that he had not spent time with the children at the contact centre for the past six weeks as he had been informed by the contact centre that the children would not be attending. The father stated that on the last supervised visit, some six to eight weeks previously, he and the children sat down and played some games. He stated that the children were happy. He stated that the children did not tell him that they were bored and they did not say that they did not want to see him again.
The father stated that he wants to contribute to the children’s financial welfare. He has not yet applied to the Child Support Agency. He is awaiting advice from his solicitor. He is on a disability pension. He is unable to work in employment until he obtains the go-ahead from his doctors following his surgery.
The father stated that he had thought about taking the child [Y] to the movies and shopping if he was to spend time with her on a Saturday.
The father confirmed that none of his brothers have a drinking or gambling problem.
The father stated that towards the end of his supervised time with the children, he and the children had been getting closer and he was connecting better with the children.
The father stated that neither of the children, since spending supervised time with him, had told him that he had a gambling or drinking problem.
The father stated that there were limitations on the activities that he and the children could participate in at the contact centre. They had to “use the same activities”. He stated it was difficult to maintain the interest of two teenage children.
The father agreed that in about the last two years of the parties’ marriage there were regular physical altercations between them. The father would push the mother away in response to the mother hitting him. The children would have seen him pushing the mother on a few occasions. The father stated that he had never complained to the police about the mother hitting him because he wanted to save the marriage and did not want to end up “here”.
In re-examination the father confirmed that his previous criminal convictions were: a common assault offence in January 2004 (sentence being a section 10 bond with an AVO in favour of the mother); a common assault offence in November 2004 (with the sentence being a section 9 bond, with conditions and to comply strictly with the AVO order in favour of mother); and a further offence of contravening the ADVO in November 2004 (with the sentence being a section 9 bond with conditions and to comply strictly with the ADVO order in favour of mother).
The mother gave oral evidence.
The mother stated that she had not read the contact centre notes. She confirmed that the last supervised visit had been on 12 January 2019.
The mother confirmed that the father gave the children a $250 gift voucher each for Christmas 2018. The children spent such vouchers.
The mother stated that the children should spend time with the father. It was important for them to have a relationship with him.
The mother confirmed that she had been convicted of common assault upon the child Ms K on 15 June 2017, the offence having occurred on 17 February 2017. The sentence imposed was a section 10 bond for six months.
The mother further confirmed that on 5 September 2017 she had been charged with common assault, and following a hearing on 5 June 2018 she had been convicted of two counts of that offence. She had been convicted of assaulting her mother and Ms K on 4 September 2017. The sentence imposed was a section 10 bond for 24 months and to comply strictly with “apprehended violence order in favour of Ms L [the mother’s mother] and Ms K”.
The mother confirmed that she had not referred to the above common assault convictions in her Affidavit. She stated this was because Ms K was not the father’s biological daughter and they were irrelevant.
The mother stated that she had not done an anger management course or parenting after separation course because she did not need to and she was doing “fine”.
The mother was asked why she wanted the children’s time with the father to be still supervised. She stated that “that’s what the girls are putting out to me”. She was asked what worried her about the children’s safety when spending time the father. She responded that she had learnt that the father is still easily frustrated and acts on it.
The mother stated that one year ago she had thought that it would be hard on the children to keep going to the contact centre. At that time she knew the children were bored going to the contact centre.
The mother confirmed that her Affidavit did not explain why the children had stopped going to spend supervised time with the father at the contact centre.
The Court asked the mother what her concern was in relation to the children spending unsupervised time with the father. The mother stated that it was the father “name-calling on impulse” and the children not wanting to be exposed to that.
Ms E swore an Affidavit and gave oral evidence in the proceedings, in the mother’s case. The evidence related to an alleged incident at a Holy Communion event involving the parties and the child [Y] on … 2015. The Court found this witness’ evidence to be unreliable. Further, this witness was clearly aligned with the mother, stating that she sees the mother every day and was a close friend. She confirmed that she had not been on good terms with the father at the time of the alleged incident.

The Child Inclusive Conference

This conference was held on 21 October 2016. The child [Y] told the family consultant that the father had been mostly grumpy. When asked why she did not want to see the father, she stated, “because… I’m not sure”. Later, [Y] said she could not recall much about living with the father. She reported that her parents had fought a lot, and both parents had shouted at each other. She stated that she had felt scared during the parental arguments.
The child [X] stated that whilst the father had been mostly grumpy he had been a little kind, but she had to beg him to play with her. [X] was asked if she would like to spend time with the father and she stated that only if her sister Ms K came with her.
[X] stated that she sometimes felt scared of the father because she had seen her parents argue a lot and she was aware that the father had been physically violent towards the mother. She conceded that she had been informed about this violence by the mother, but maintained that this violence had occurred, based on what she had heard of the parental arguments.

The Family Report

The Family Report writer was Ms F. The Family Report was dated 9 August 2018. The Family Report writer interviewed the parties and the children on 19 June 2018. She reviewed relevant Court documents, including material obtained under subpoena in these proceedings.
No party expressed any concerns to the Family Report writer about the father’s mental health.
After the Observations were completed, the father reflected with the Family Report writer, saying that he could play with the child [Y] but [X] avoided him, and that this was a fairly normal interaction for them. The father stated that this was not [X]’s fault.
The father told the Family Report writer that he had not had any alcohol since his recent operation, for health reasons.
The father told the Family Report writer that he was willing to communicate with the mother via email or messages regarding the children’s needs. He stated that the mother had his current telephone number.
The father told the Family Report writer that his relationship with the mother was volatile and the children would have witnessed yelling, and pushing and shoving.
The children were interviewed by the Family Report writer.
The child [X] told the Family Report writer that she found it boring to spend time with the father at the contact centre, and she only went because she had to. She reported that she believed she should have a choice and that the mother had said it was her choice.
[X] stated that if she were forced to spend time with the father, she would want it to be supervised, because he could be angry. She stated, as an example, that he could get upset if he lost a game or if she and [Y] got annoyed with each other.
[X] stated that the mother had said that it was her choice whether to spend time with the father or not, but the mother would be sad if she went. [X] then corrected herself, saying that the mother was not telling her anything about it.
The child [Y] told the Family Report writer that the father had a gambling problem. She could not answer when asked about the things she enjoyed doing with her father. She said that she would feel scared if she was to spend more time with the father, and that the father used to start fights with the mother. However, she declined to speak further about this.
The children were observed with the father by the Family Report writer. The father attempted to engage each of the children in turn. The child [Y] was somewhat more responsive to the father’s attempts at conversation than the child [X]. The father engaged [Y] in a game of hangman and [Y] joined in. The father encouraged [X] to join them, but she did not. The child [Y] used the whiteboard to write messages to the father and she appeared to become frustrated that he was not guessing the word she had put up. The father attempted to engage [X] but she responded minimally. At one point the child [X] smiled at what the father was saying to her and she nodded. When it was time to leave the father hugged [Y] but [X] avoided being hugged.
Under the heading Evaluation the Family Report writer stated, inter alia, that the children were of an age and developmental stage where they were each clearly able to articulate views on their parenting arrangements. Significant weight could be given to [X]’s, and to a lesser extent, [Y]’s views (due to [Y]’s younger age).
The Family Report writer stated that it was possible that the children’s views had been shaped, either intentionally or inadvertently, by the mother’s views. The Family Report writer stated that given the children’s apparent alignment with the mother, and the views they had expressed about adult concerns such as the father’s gambling, it seemed likely that their views had been somewhat affected by the mother’s views.
The Family Report writer stated that the child [Y] appeared to have an ambivalent relationship with the father, whilst the child [X] appeared reluctant to relate to him at all. The Family Report writer stated that at times the father and [Y] appeared to be enjoying playing together, and other times they displayed irritation towards each other. Each child had reported that they would feel happy if they no longer spent time with the father.
The Family Report writer stated that the father’s account of family violence, occurring mutually between himself and the mother, could fit a pattern of situational couple family violence that does not have its basis in the dynamic of power and control, and results from situations or disputes between partners. The Family Report writer stated that if this account is found to have veracity, then it may be important to minimise contact between the parents and set clear boundaries regarding communication between them, in order to protect the children from exposure to parental conflict.
The Family Report writer stated that it appeared that the parties had a very high conflict relationship, and as such, limited communication between them was recommended.
The Family Report writer stated that there had been supervised time for eighteen months. She stated it was acknowledged that this environment might not be conducive to building relaxed and comfortable relationships, but despite this time, the father’s relationship with the children remained tenuous. Supervised contact was not an appropriate long-term arrangement. The Family Report writer stated that if it was determined that time with the father did not present an unacceptable risk of harm to the children, then arrangements to spend time in an unsupervised environment may be considered most appropriate.
The Family Report writer stated that it was not considered necessary for the children to spend overnight time with the father in order to maintain an ongoing relationship with him.
The Family Report writer stated that the child [Y] had expressed that she would feel scared about spending more time with the father. However, she appeared willing to interact with him, and appeared to get some pleasure out of their interactions. The Family Report writer stated that despite her stated wishes, given her current age, it may be beneficial if [Y] was able to maintain a relationship with the father until she is of an age where she is better able to make an independent decision regarding an ongoing relationship. If it is determined that the father does not present an unacceptable risk of harm to [Y], it is recommended that she spend one day on alternate weekends and one evening on the alternating week with the father, unsupervised, doing child focused, mutually enjoyable activities such as going out for dinner or to the movies.
Given [X]’s age, and her behaviours and statements which indicated that she did not want to spend time with the father, forcing her to spend time with the father may cause her to feel resentment, causing further damage to her relationship with the father. The Family Report writer recommended that this child be allowed to spend time with the father according to her wishes if the Court finds that the father does not present a significant risk of harm to her.
Under the heading “Recommendations”, the Family Report writer recommended the mother hold sole parental responsibility for the children; that the children live with the mother; and that the children spend time with the father on alternate Saturdays between 10 am and 4 pm, and on the following Thursday evening from after school until 8 pm.
The Family Report writer gave oral evidence.
The Court does not propose to set out the entirety of her oral evidence.
The Family Report writer stated that should a child not spend time with a parent, it is possible that they may go on to experience self-esteem issues and difficulties forming relationships later in life. She stated that a child’s relationship with a male can be beneficial. She stated that, as a general rule, children like to know both their parents.
The Family Report writer stated that never-ending supervision is not a good outcome and is not appropriate.
The Family Report writer stated that she did not see anything in her observations of the children with the father to indicate a necessity for supervision. She agreed that the length of time that the children had spent supervised time with the father at a contact centre playing the same games indicated the father’s patience.
The Family Report writer told the Court that she had not recommended the continuation of supervision of the children’s time with the father because the children had been seeing the father under supervision for a long time and there had been no concerns, and when she saw the children with the father she had had no concerns. She stated that she had taken into account the subpoenaed material referred to in the Family Report.
The Family Report writer did not agree that she had given insufficient consideration as to the ability of the child [Y] to spend time with the father by reference to her anxiety.
The Family Report writer stated that it was likely that the child [Y] would feel more anxious spending unsupervised time with the father alone. She stated that [Y] would need to receive support regarding anxiety. Such support would come from the parties, as well as professional support through counselling. Family therapy could assist her if her anxiety was significant.
The Family Report writer’s attention was drawn to paragraph 72 of the Family Report wherein the father’s tone was noted by the Family Report writer to sound a little frustrated when he attempted to engage each of the children in turn. The Family Report writer stated that a little frustration was normal and it had not escalated.
The Family Report writer stated that she had taken into account the children’s expressed views of being scared of the father’s anger, but this had been weighed against the option of the children not having an opportunity to have a relationship with the father.
The Family Report writer was asked whether it was in the best interests of the children to continue to see the father in a supervised setting. The Family Report writer stated that the contact centre material indicated that the children were bored, with there being not a lot to do to extend their relationship with the father. The children being forced to go to the contact centre was not likely to increase the positivity of their relationship with the father. In the long term, continued supervision would not have a positive impact upon them.
The Court accepts the evidence of the Family Report writer.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (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 section 60CC, or impracticable.

If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

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

The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The children’s relationship with the father appears to be somewhat tenuous and the child [Y]’s relationship with him appears to be an ambivalent one. Nevertheless, the children did spend a lengthy period of supervised time with the father which was usually positive time. The observation session for the Family Report, in particular between the child [Y] and the father, would appear to be supportive of such positive time previously spent.
It will be a positive outcome for the child [Y] in particular to observe the father engaged in her high schooling process.
The Court accepts the Family Report writer’s evaluation regarding both children, observing that it may be beneficial if the child [Y] is able to maintain a relationship with the father, until she is of an age where she is better able to make an independent decision regarding ongoing relationship. The eldest child [X] is at an age where she should spend time with the father in accordance with her wishes. Nevertheless, it is hoped that she will regularly, if not occasionally, join [Y] in spending time with the father.
The Court takes into account the evidence of the Family Report writer that there are possible negative outcomes for a child who has no relationship with one parent.
The Court gives significant weight to this meaningful relationship primary consideration.

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

There will be no unacceptable risk of harm posed to the children if final parenting Orders are made mainly in accordance with the father’s proposed Orders. That is, inter alia, that the eldest child [X] spend time with the father in accordance with her wishes; that [Y] spend time with the father each alternative Saturday from 10 am to 4 pm, and each alternate Thursday from after school to 8 pm; that [Y] spend time with the father from 10 am to 4 pm on Christmas Eve in odd numbered years and from 10 am to 4 pm on Christmas Day in even numbered years and each Father’s Day from 10 am to 4 pm; and that such time for both children be unsupervised.
Again, the Court attaches no significant weight to the opinions of the psychologist Dr J. The Court accepts the evidence of the Family Report writer.
The Court has taken into account the father’s consistency in attending supervised time with the children over a lengthy period. He attended each supervised session punctually, stayed the whole period, and entertained the children with limited activities being available. His positive behaviour during such lengthy supervised time suggests that the father possesses not insignificant patience with the children in his presence.
The father has previously participated in an anger management course and parenting after separation course. The Court assesses that the father has insight into the emotional need of the children not be exposed to conflict, violence or anger when spending time with them.
The parties were involved in regular verbal disputation during the relationship, often in the presence of the children, and in particular during the last two years of the relationship when there was also mutual physical disputation between them. The Court accepts the father’s evidence in this context. The Court assesses that such disputation constituted situational couple family violence as discussed by the Family Report writer in the Family Report. Again, it did the mother no credit that she failed to refer in her own Affidavit to her past convictions for assault relating to her own mother and other child Ms K, whilst acknowledging that the mother was likely under significant stress at the time of these offences.
The mother’s oral evidence relating to her concerns regarding the children spending unsupervised time with the father lacked substance, including her concern that the children would be exposed to the father’s name-calling on impulse (which the Court does not accept). There is no significant risk that the father will expose the children to family violence if spending unsupervised time with them. The Court does not accept that the father presently gambles or that he is liable to be confronted by creditors for debt enforcement. There is no significant risk that the father will become significantly frustrated or angry (and in relation to this issue of anger, the Court observes that there is no significant material in the contact centre reports that the father exhibited anger towards the children during supervised time spent with them) if spending unsupervised time with the children, such as to cause the children emotional harm. There is no significant risk that the father will be significantly affected by alcohol if spending unsupervised time with the children.
The Court again takes into account the generally positive time spent by the children with the father during the lengthy supervised time, and their lack of fearfulness in joining the father during the observation session for the Family Report interview. The Court takes into account the engagement of the child [Y], in particular, with the father during the observation session for the Family Report interview. The Court takes into account the fact that the children’s views relating to the father have been influenced to a not insignificant degree by the mother’s negative views of the father, whilst the Court recognises that their views have been shaped to some extent by their exposure to disputation between the parents during the relationship.
As to the child [Y] spending the above limited daytime unsupervised time with the father (as proposed by the father), the Court assesses that there is a real prospect that this child will not experience significant emotional harm in spending such time with the father. Inter alia, this child was not exposed to emotional or physical harm while spending lengthy supervised time with the father, and she was also able to relate to the father positively during the observation session for the Family Report interview. According to the Family Report writer, the child [Y] appeared willing to interact with the father and appeared to get some pleasure out of their interactions. The Court would assess that there is a significant prospect that this child will enjoy spending daytime time with the father, as proposed by the father, particularly if she is engaging in activities that she enjoys, such as shopping and going to movies with the father. And again, if her sister [X] could accompany her when spending such time with the father, that would be of further assistance.
The above views of the Court are consistent with the evidence of the Family Report writer.

Section 60CC(3) - additional considerations

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

The Court gives significant weight to the views of the eldest child [X]. As to the younger child [Y], the Court gives some weight to her views but again takes into account the fact that to some extent her views of the father have been shaped by the mother’s negative views of the father.

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

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

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

The Court refers to the additional consideration (i) below.

(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

The mother has provided such maintenance. The father has provided limited maintenance for the children, though he has provided cash gifts for the children on occasion. He has expressed a willingness to provide regular financial support, subject to his ability to earn income, noting his recent surgery.

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

Should the children spend unsupervised time with the father in accordance with the father’s proposals, the Court would assess that there is not a significant prospect that the children or the mother would experience emotional harm. The Court refers to its discussion above under the need to protect primary consideration.

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

Not applicable.

(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

It would appear that the children are developing well in the primary care of the mother.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

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

Whilst the mother did facilitate the children spending regular supervised time with the father, albeit until recently, the mother was probably aware that the children were bored doing the same activities at the contact centre, which was hardly conducive to the positive development of the children’s relationship with the father.
The father failed to take more timely steps to resume spending time with the children following the separation, and the mother was resistant to the children spending time with him.
The mother’s apparent disinterest in fully reading (or rereading) the Family Report and contact centre reports demonstrate an unwillingness on her part to appreciate the positive time spent by the children with the father at the contact centre over a lengthy period, including the father’s positive behaviour during such time.

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

The Court refers to the evidence previously referred to, and the Court’s discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

The Court refers to the evidence previously referred to, and the Court’s discussion above under the need to protect primary consideration.

(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

The father’s proposed final parenting Orders, as opposed to the mother’s proposed final parenting Orders, would be least likely to lead to the institution of further proceedings in relation to the children. Continued supervision of the children’s time with the father is likely to be unproductive for the positive development of the children’s relationship with the father.

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

The mother, in the alternative, sought an Order that any unsupervised time spent by the children with the father would not be spent at the father’s residence, noting that the father lives at his residence with his three adult brothers. The mother referred to the Family Report in this context. The Court is of the view, accepting the submissions of the ICL in this context, that there is a real prospect, based on the material before the Court, that the children’s prospective unsupervised time with the father, in accordance with the father’s proposed parenting Orders, is unlikely to be spent wholly at the residence of the father. There is a significant prospect that the child [Y] will spend time with the father doing enjoyable outside activities. In any event, the Court is not satisfied that any such time spent at the father’s residence will expose the children to a significant risk of harm.

Parental responsibility

The parties have agreed that the mother have sole parental responsibly for the children.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)All parenting Orders in relation to the children be discharged.
(2)[X] born … 2004 and [Y] born … 2006 (“the children”) shall live with the mother.
(3)The mother shall have sole parental responsibility for the children.
(4)[X] shall spend time with the father in accordance with her wishes.
(5)[Y] shall spend time with the Father as follows:
(a)Each alternate Saturday from 10 am to 4 pm; and
(b)Each alternate Thursday from after school to 8 pm. During the NSW Gazetted school holiday periods, the time shall commence at 10am and conclude at 4pm pursuant to this Order.
(c)From 10 am to 4 pm on Christmas Eve in odd numbered years;
(d)From 10 am to 4 pm on Christmas Day in even numbered years; and
(e)Each Father’s Day from 10 am to 4 pm.
(6)For the purposes of changeover, as agreed, or in default of agreement:
(a)Where the children’s time with the father is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the children’s school; and
(b)At all other times changeover is to occur at the McDonald’s family restaurant in Suburb A.
(7)Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the hearing or presence of the children or either of them.
(8)Both parties shall keep the other informed of their residential address, landline and mobile telephone numbers, and shall notify the other within 24 hours of any change thereto.
(9)Each party shall ensure that the children and each of them are transported to any sporting or cultural activities in which the children or either of them are participating from time to time and which occur at time when the children are in the care of each party together with any training or other tuition relating to that activity.
(10)Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.
(11)Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children or either of them to discuss with the father the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
(12)The mother shall provide to the father, details of the children’s general practitioner, and any other medical specialist, including counsellor or psychologist, that the children may attend upon, from time to time, and the father shall be permitted to contact any medical practitioners/specialists/counsellors to discuss the children’s condition or treatment, and these orders shall be sufficient authority for him to do so.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 6 May 2019

[2019] FCCA 994

6 May 2019

Key Legal Topics

Areas of Law

Family Law