Geddes & Cunningham
[2021] FedCFamC2F 326
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Geddes & Cunningham [2021] FedCFamC2F 326
File number(s): PAC 5153 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – interim parenting – best interests of children – Orders made Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Salah & Salah [2016] FamCAFC 100
Cimorelli & Wenlack [2020] FamCAFC 58
Banks & Banks [2015] FamCAFC 36Saif & Saif [2020] FamCA 119
Division: Division 2 Family Law Number of paragraphs: 140 Date of last submission/s: 17 August 2021 Date of hearing: 17 August 2021 Place: Parramatta Solicitor for the Applicant: Mr Reeve Solicitor for the Second Respondent: Ms Vincent Solicitor for the Third and Fourth Respondent: Ms Swan Solicitor for the Independent Children’s Lawyer Ms Rutkowska ORDERS
PAC 5153 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GEDDES
Applicant
AND: MS CUNNINGHAM
First Respondent
MR SHAW
Second Respondent
MS ROBBS (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 NOVEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.X born in 2019 (X) and Y born in 2020 (Y) shall live with the Maternal Grandparents.
2.X shall spend time with the Second Respondent Father as agreed between the Second Respondent Father and the Maternal Grandparents, and in the absence of agreement, from Sunday at 5 PM to Thursday at 9 AM.
3.Y shall spend time with the Applicant Father on two occasions each week, for a period of three hours on each occasion, supervised by the Maternal Grandfather, at times as agreed between the Applicant Father and the Maternal Grandparents, and failing agreement each Monday and Wednesday from 10 AM until 1 PM at the Suburb B Community Centre, C Street, Suburb B, NSW.
4.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by August 2022.
5.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
6.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
7.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
8.The proceedings are adjourned for mention following release of the Family Report to a date in August 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Geddes & Cunningham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This interim hearing relates to the children X born in 2019 and Y born in 2020 (“the children”).
The Applicant, Mr Geddes, aged 32 years, is the biological Father of Y.
The First Respondent Mother, Ms Cunningham, aged 25 years, is the Mother of the children.
The Second Respondent, Mr Shaw, aged in 30 years, is the biological Father of X.
The Third Respondent, Ms Robbs, aged 67 years, is the Maternal Grandmother of the children.
The Fourth Respondent, Mr Cunningham, aged 78 years, is the Maternal Grandfather of the children.
The Applicant Father, Mr Geddes, sought interim parenting Orders set out in his Case Outline filed 13 August 2021 and are as follows:
1.That the Applicant and Respondent have equal shared parental responsibility for the child Y, born 2020 (“Y”).
2.That for a period of 3 months from the date of the Orders, Y shall spend time with the Applicant each Sunday and Monday for a period of 3 hours on each occasion, from 10:00AM to 1:00PM, supervised by the paternal grandmother.
3.That at the conclusion of the initial 3 month period, Y shall spend time with the Applicant each Sunday and Monday for a period of 3 hours on each occasion, from 10:00AM to 1:00PM, unsupervised.
4.That upon Y reaching the age of 1 year old in 2021, Y shall spend time with the Applicant each Sunday from 10:00AM to 6:00PM and each Monday from 10:00AM to 6:00PM.
5.That the Applicant shall spend time with X (“X”) as agreed between the parties and failing agreement, as follows:
5.1. That for a period of 3 months from the date of the Orders, X shall spend time with the Applicant each Sunday and Monday for a period of 3 hours on each occasion, from 10:00AM to 1:00PM, supervised by the paternal grandmother.
5.2. That at the conclusion of the initial 3 month period, X shall spend time with the Applicant each Sunday and Monday for a period of 3 hours on each occasion, from 10:00AM to 1:00PM, unsupervised.
6.That the parties be restrained by injunction from removing the children from the Greater Sydney Region without the written consent of all of the parties.
7.That pursuant to section 62G(2) of the Family Law Act 1975 and Division 15.2 of the Federal Circuit Court Rules, the parties and the children shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia (“the Family Consultant”) on a date and at time/s to be advised for the purposes of the preparation of a Family Report pertaining to welfare of the children Y and X, such report to be released by the Court.
At the interim hearing, the Father sought to amend the above proposed Order 3 to provide for time to occur for a period of 6 hours in view of the travelling time between Suburb D and Suburb E (suburb where the maternal grandparents live).
The Mother and the Maternal Grandparents sought interim parenting Orders set out in their proposed Minute of Order sent to the Court on 1 November 2021 as follows:
Interim Parenting
1.That until and if the children are allowed to relocate to Melbourne, the children X born in 2019 (“X”) and Y born in 2020 (“Y”) live with the Third and Fourth Respondent.
For six months from the date of these Orders
2.That until and if the children are allowed to relocate to Melbourne, the children shall spend time with the Applicant and the Second Respondent as follows:
2.1The child X shall spend time with the Second Respondent as agreed between the parties and failing agreement:
2.1.1X will spend time with the Second Respondent each Sunday at 5:00pm to Thursday at 9:00am.
2.2The child Y shall spend time with the Applicant on two occasions each week, for a period of three hours supervised by the Fourth Respondent at times as agreed between the parties and failing agreement each Monday and Wednesday from 10am until 1pm at the Suburb B Community Centre, Suburb B in the state of New South Wales.
3 Further and in the alternate to Order 2 above, in the event the Court orders time spend with X and the Applicant, that such time is to take place with the child Y supervised by the Fourth Respondent and shall take place each Friday from 10am until 1pm and each Saturday from 10am until 1pm.
From six months from the date of these Orders
4 That in the event that the Court has not yet allowed or has refused to allow the Mother, the Third Respondent and the Fourth Respondent to relocate to Melbourne, Victoria with the children that:
4.1 The child Y shall spend time with the Applicant on two occasions each week, for a period of six hours unsupervised at times as agreed between the parties and failing agreement each Monday and Wednesday from 10am until 4pm with drop off and collection to take place at the Suburb F Community Centre, G Street, Suburb F in the state of New South Wales.
4.2 The child X shall spend time with the Second Respondent as agreed between the parties and failing agreement:
4.2.1X will spend time with the Second Respondent each Sunday at 5:00pm to Thursday at 9:00am.
5.Further and in the alternate to Order 4 above, in the event the Court orders time spend with X and the Applicant, that such time is to take place with the child Y each Friday from 10am until 4pm.
6.That a Family consultant’s report be obtained in accordance with Division 8.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
7.That the matter be transferred to the Federal Circuit and Family Court (Division 1) at the Sydney Registry in accordance with Division 9.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
8.That the Respondent’s application for relocation be listed for hearing _________________.
9.Costs of this application.
10.Such further or alternative relief as this Honourable Court deems fit.
The Second Respondent, Mr Shaw, the Father of X, sought interim parenting Orders set out in his Case Outline dated 16 August 2021 as follows:
In these orders:
A.The 'Father' means Mr Shaw;
B.The 'Mother' means Ms Cunningham;
C.The 'Applicant' means Mr Geddes;
D.'X' means X born in 2019;
E.The 'Child' means X;
F.The 'Parents' and/or 'Parent' means Mr Shaw and/or Ms Cunningham;
G.The 'Maternal Grandparents' means Ms Robbs and Mr Cunningham.
Parenting orders
1.That the interim Orders sought by the Applicant in so far as they relate to X be dismissed.
5 That, pending further order, X live with the Father.
6 That, pending further order, X spend time with the Mother as agreed between the Mother and Father.
7 That, pending further order, X spend time with the maternal grandparents as agreed between the Father and the maternal grandparents.
8 That, pending further order, each parent keep the other informed of;
8.1His and her residential address, contact telephone number and email address and advise of any change to such details within 2 days of a change occurring.
8.2Contact information, important dates and details relevant to the child's education, religious activities, medical appointments and extra curricular activities.
8.3Any significant injury or illness suffered by the child and details of all medical treatment given to the child.
The ICL’s position at the interim hearing was set out on page 1 of the ICL’s Case Outline filed 16 August 2021 and which stated:
(1)The ICL supports the children to remain living with the Maternal Grandparents in the Interim and does not see any unacceptable risk of harm for the children to remain in the Maternal Grandparent’s Care.
(2)The ICL notes that time between Mr Shaw and X should occur as organised between the Father and Maternal Grandparents.
(3)The ICL supports Mr Geddes Father of Y to spend time with Y on a gradual basis starting with day time.
(4)The ICL does not support the separation of the siblings.
(5)The ICL is concerned about the lack of evidence regarding the Mother’s mental health issues.
The Mother and the Maternal Grandparents relied upon:
(a)Affidavit of the Mother sworn and filed on 12 August 2021;
(b)Affidavit of Mr Cunningham (the Maternal Grandfather) sworn and filed on 10 August 2021;
(c)Affidavit of Ms Robbs (the Maternal Grandmother) sworn and filed on 5 August 2021;
(d)Their Tender Bundle (initially 211 pages but reduced to 42 pages);
(e)ICLs Tender Bundle of 34 pages.
The Applicant Father, Mr Geddes, relied upon:
(a)Affidavit of Mr Geddes filed 28 September 2020;
(b)Initiating Application filed by Mr Geddes on 28 September 2020;
(c)Affidavit of Ms Cunningham sworn 20 October 2020;
(d)Response of Ms Cunningham filed on 20 October 2020;
(e)Affidavit of Mr Geddes filed 12 November 2020;
(f)Child Dispute Conference Memorandum dated 3 February 2021;
(g)Amended Initiating Application filed by Mr Geddes on 2 March 2021;
(h)Response of Mr Shaw, filed 3 August 2021;
(i)Affidavit of Mr Shaw filed 3 August 2021;
(j)Affidavit of Ms Robbs filed 5 August 2021;
(k)Amended Response of Ms Cunningham, filed 7 August 2021.
The Second Respondent, Mr Shaw, relied upon:
(a)Response to Initiating Application filed 3 August 2021;
(b)Affidavit of Mr Shaw filed 3 August 2021;
(c)Notice of Child Abuse, Family Violence of Risk filed 3 August 2021.
The ICL relied upon:
(a)Child Dispute Conference Memorandum to Court dated 3 February 2021;
(b)ICL’s Tender Bundle.
The Court notes that on 8 March 2021 these parenting proceedings were set down for interim hearing on 17 August 2021, “the issues being the nature and extent of the children’s time with the Father as well as proposed injunctive relief sought by the Father.” Following mentions of these proceedings on 6 and 13 August 2021, and the contents of the Mother and maternal grandparent’s Amended Response filed 7 August 2021, it became apparent that the Mother sought to also pursue an interim relocation proposal regarding the children (from Sydney to Melbourne, Victoria), however the Applicant Father was not ready to meet such relocation proposal. Accordingly, the interim hearing on 17 August 2021 proceeded in relation to the above competing proposals, with the interim relocation proposal not being dealt with. The Court observes that on 16 August 2021, the Mother and the maternal grandparents filed an Application in a Case seeking interim parenting orders that the mother be granted leave to relocate the children from New South Wales to Melbourne, Victoria; that Application is returnable before the court on 16 November 2021.
EVIDENCE INCLUDING COMPETING ALLEGATIONS
The Applicant Father alleges that he and the Mother commenced cohabitation in 2019 in Melbourne. He alleges they separated around April 2020.
The Applicant Father alleges that he attended the birth of the eldest child and that the Mother and himself named the eldest child. He alleges that for the first nine months of the eldest child’s life he was the primary carer. He alleges in his Affidavit filed 28 September 2020 that he has a very close and loving bond with the eldest child.
The Applicant Father alleges that in late December 2019 the Mother, himself and the eldest child stayed with his Mother until April 2020.
The Applicant Father alleges that the Mother and the Maternal Grandmother had a strained relationship when in September 2020 the Mother took out an AVO against the Maternal Grandmother.
The Applicant Father alleges that his primary care of the eldest child ceased in about September 2020 when the Mother left to stay with her brother. On the other hand, the Mother alleges that she became wholly responsible for the care of the eldest child in about March 2020 when she began working from home.
The Mother alleges that the Applicant Father is also known as Mr Geddes.
The Mother alleges that the Maternal Grandparents live together in the Suburb E even though they separated in 2003.
The Mother alleges that the Applicant Father and the Maternal Grandmother had a verbal argument in relation to the care of the eldest child in late February 2020.
The Mother alleges that the eldest child saw the Applicant Father physically assault the Mother on multiple occasions and heard the Applicant Father verbally abuse her on a weekly basis. She alleges that the eldest child’s naps were often disturbed by the Applicant Father yelling and abusing the Mother.
The Mother alleges that the Applicant Father stayed intermittently with herself and the eldest child from late April 2020 until late September 2020 at Suburb H.
The Mother alleges that the Applicant Father often smoked marijuana in a house at Suburb J. She alleges that the Father told her that marijuana helps him relieve the stresses of looking after a newborn. She alleges in August 2019 the Applicant Father offered to have some acid with the Mother. She alleges that he told her that acid was the best drug he had ever taken in his life.
The Mother alleges that in about late July 2019 the Applicant Father became increasingly angry with the Mother after the Mother had confronted the Father about alleged infidelity of the Applicant Father during the Mother’s pregnancy. She alleges that during an argument with the Applicant Father he told her that he thought he may have a mental illness and would go and see a doctor and get help. The Mother alleges that the Applicant Father consulted a doctor and was diagnosed with depression and mood swings, he was medicated for a month, but discontinued treating his mental health and temper.
Following the parties and eldest child living with the Applicant Father’s Mother at Suburb D in late December 2019, the Mother alleges that the Applicant Father verbally denigrated the Mother’s extended family in front of the Mother.
The Mother alleges that shortly after about mid-March 2020 when she found out she was pregnant, during an argument with the Applicant Father, he pushed her to the ground when she attempted to reach for the eldest child. The Mother alleges that the eldest child was in the Applicant Father’s arms as he pushed her.
The Mother alleges that in late April 2020 she moved out of the Suburb H apartment, with the eldest child living solely with her and the Applicant Father visiting their apartment.
The Mother alleges that the Applicant Father verbally abused her in front of the eldest child.
The Mother alleges that the Applicant Father verbally, mentally and physically abused her weekly and which then progressed to every second day or third day after July 2020. She alleges that he criticised her diet, the state of the apartment or if the eldest child had a slight nappy rash.
The Mother alleges that the Applicant Father, in late August 2020, tried pushing her down the stairs, as the Mother went to leave the apartment at the end of an argument.
The Mother alleges that the Applicant Father in about mid-September 2020 grabbed her wrist, twisted it, scratched the Mother, attempted to pull the Mother to the ground after grappling with her and then kicked her in her shins. The police attended. The Mother alleges that when the police arrived the Applicant Father said to her, “if you say I assaulted you, I will never let you leave with X.” The Mother alleges that she later reported the incident to the police and an ADVO was taken out against the Father. She alleges that the Applicant Father was charged with assault following the above alleged incident. She alleges that she attended the Local Court in about mid-March 2021 where she testified. She alleges the matter was adjourned until about mid-August 2021.
In the Affidavit of the Mother filed 16 August 2021 she made the following allegations.
The Mother alleges that she was in a relationship with the Applicant Father from about March 2019 until 25 September 2020. She alleges that the Applicant Father is the biological Father of the youngest child.
The Mother alleges that the Maternal Grandparents live at Suburb E. She alleges that the children live with the Maternal Grandparents as the Mother is living in Melbourne.
The Mother alleges that before she left Sydney for Melbourne in about early June 2021 the eldest child is spending three nights a week in the Second Respondent Father’s care and four nights a week in the Mothers care. She alleges that more recently the eldest child is spending four nights in the Second Respondent Father’s care and three nights in the care of the Maternal Grandparents. She alleges that the youngest child is spending no time with the Applicant Father.
The Mother alleges that her brother, Mr M, is her best friend and she is close to her family. The Mother alleges that the Applicant Father has been critical of the Maternal Grandmother. The Mother alleges that the Maternal Grandmother has always been a loving and attentive Mother. She alleges that she has never had any issues in her relationships until she met the Applicant Father. She alleges that the Applicant Father drove a wedge between the Maternal Grandmother and the Mother. The Mother alleges that fortunately this no longer exists.
The Mother alleges that she does not receive any child support from either of the children’s Fathers.
The Mother alleges that the Maternal Grandmother flew from Sydney to Melbourne weekly between April and June 2019 to care for the Mother. The Mother alleges that herself and the Applicant Father live separately and that the Mother did not see the Applicant Father for weeks at a time and they had minimal contact. She alleges that she stayed alone in an Airbnb in the weeks leading up to the birth of the eldest child. The Mother alleges that this distressed her greatly as the Applicant Father had promised to take care of her. The Mother alleges that in about mid-June 2019 she found messages on the Applicant Father’s laptop describing sexual relations he had shared with another woman a few nights prior.
The Mother alleges that the eldest child has a very close bond with herself. She alleges that the eldest child has also developed a very close bond with the Maternal Grandparents and the Second Respondent Father.
The Mother alleges that after the eldest child’s birth, she returned to work in early July 2019. She alleges that on one occasion she asked the Applicant Father if he could take the eldest child out as she had a work deadline. She alleges that the Applicant Father left the eldest child with his cousin and her partner about whom the Applicant Father had told the Mother that the cousin’s children were removed from her by DOCS due to substance abuse of ice.
The Mother alleges that the Applicant Father refused to allow the eldest child to eat solids at six months old. She alleges that the Applicant Father told her that feeding the eldest child food from the supermarket was not healthy. She alleges that in late February 2020 the Applicant Father took the eldest child to the beach and the eldest child was badly sunburnt. She alleges that the Applicant Father and the Maternal Grandmother had an argument following the Maternal Grandmother informing him that the eldest child was sunburnt. The Mother alleges that the Applicant Father returned to where the Mother was standing with the eldest child and told the Mother that if she did not take out an AVO on the Maternal Grandmother, he would make the Mother’s life a misery.
The Mother alleges that from about mid-March 2020 she became wholly responsible for the eldest child. She alleges that the Applicant Father verbally abused the Mother after she had fed the eldest child fruit. She alleges that the Father had said to her, “how dare you feed (the eldest child) solid foods and not involve me in the process?”
The Mother alleges that the Applicant Father often removed the eldest child from her arms even if she was in the middle of a task with the eldest child. In this context, the Mother alleges that the Applicant Father verbally abused her skills as a Mother.
The Mother alleges that the eldest child saw the Applicant Father physically assault the Mother on multiple occasions and heard the Applicant Father verbally abuse her on a weekly basis. She alleges that the eldest child’s naps were often disturbed by the Applicant Father yelling and abusing the Mother.
The Mother alleges that in late April 2020 she rented an apartment in Suburb H. She alleges the Applicant Father took the car every day, demobilising her because she could not walk up the hill surrounding her apartment because she could not carry the eldest child in the pram. She alleges that this left the eldest child and the Mother in the apartment all day every day. The Mother alleges that she paid all rent to the Suburb H apartment, where the Applicant Father stayed intermittently from late April 2020 until late September 2020.
The Mother alleges that the Applicant Father would often smoke marijuana in the Suburb J residence in Victoria; the Mother alleges that she and the Applicant Father moved into a residence there in early July 2019. The Mother alleges that she asked the Applicant Father not to smoke marijuana in front of the eldest child with the Father allegedly stating that it helped him relieve the stresses of looking after a newborn.
The Mother alleges that she confronted the Father about his alleged infidelity with women during the Mother’s pregnancy with the eldest child. She alleges the Applicant Father became increasingly angry with her.
The Mother alleges that the Second Respondent Father has been in an equal time arrangement with the Maternal Grandparents (in relation to the eldest child).
The Mother alleges that the youngest child was diagnosed with an enlarged kidney which had fluid in it. She alleges it is being treated with an antibiotic. She alleges that it affects this child’s control of his bladder and results in him urinating frequently. She alleges this child is prone to cystitis which can be painful. The Mother alleges that this diagnosis meant that she had to attend various medical appointments. The Mother alleges that otherwise the child is well.
The Mother alleges that the children are close to each other. She alleges that they are very close to the Maternal Grandparents and had bonded with them.
The Mother alleges that she does not want to be in the Applicant Father’s presence again. She alleges that her experience with him has left her with significant emotional scars.
The Second Respondent Father alleges that he and the Mother commenced a relationship in about mid-2018 and separated towards the end of 2018, and did not live together. He alleges that he had no idea that he might be the biological Father of the eldest child until 14 October 2020.
The Second Respondent Father alleges that the Mother is currently living in Melbourne, having moved there from Sydney in about June 2021. He alleges that the eldest child and Y had been living with her until that time; during this time he had spent overnight periods with the eldest child and who, together with the youngest child, was also spending time with the Maternal Grandparents. He alleges that when the Mother moved to Melbourne, she left these children with the Maternal Grandparents in Sydney. He alleges that shortly after that, himself and the Maternal Grandparents reached an agreement in relation to the day-to-day care of the eldest child such that, generally, the eldest child spends Sunday to Thursday each week with himself, and Thursday to Sunday each week with the Maternal Grandparents.
The Second Respondent Father alleges that the eldest child has not spent any time with the Applicant Father since about September 2020.
The Second Respondent Father alleges that he lives in Suburb K in an apartment. He alleges that the eldest child attends daycare on Monday, Tuesday and Wednesday. He alleges that he has a good relationship with the Maternal Grandparents. He alleges that he discusses with them many matters in relation to the ongoing support of the eldest child, Y and arrangements for the future about those children and how they can continue to have a strong brotherly bond with each other.
The Second Respondent Father alleges that on 14 October 2020, when he was informed that he was the Father of the eldest child, he spoke with the Mother who allegedly told him that she had been in an abusive relationship with the Applicant Father.
The Second Respondent Father alleges that after a paternity test was conducted he found out on 5 December 2020 that he was the eldest child’s biological Father.
The Second Respondent Father alleges that he first met the eldest child on about 9 December 2020 during a two-week visit to Sydney from Melbourne. He alleges that he spent each day with the eldest child during the two-week period.
The Second Respondent Father alleges that he observed on one occasion that the Mother had locked the eldest child in the laundry when he was upset. He alleges that he went and retrieved eldest child after several minutes. On the other hand, the Mother alleges that she did not lock the door but had closed the door and moreover alleges that this room was not the laundry but a playroom. He alleges that he then returned to Melbourne. He alleges he had regular face time calls between the eldest child and himself whilst he was in Melbourne.
The Second Respondent Father alleges that in about mid-February 2021 he moved to Sydney and commenced living in an apartment at Suburb K. He alleges he began to spend time with the eldest child. He alleges that he commenced having overnight time with the eldest child from the second week that he was living in Sydney about 2 to 3 nights a week.
The Second Respondent Father alleges that in early April 2021 the Mother told him that she was going to Melbourne the next day, for the weekend, because she needed a break. The Mother allegedly told him that the eldest child will be staying in Suburb F with the Maternal Grandparents over that weekend.
The Second Respondent Father alleges that in early May 2021 the Maternal Grandfather told him that the Mother was signing a lease on a property in Melbourne and was moving there without the children.
The Second Respondent Father alleges that in about May 2021 he spoke with the Maternal Grandparents about the eldest child’s day care at Suburb L and agreement was reached that the Second Respondent Father would take the eldest child to daycare on the days he attended. He alleges that he told the Maternal Grandparents that he would have the eldest child from Sunday to Thursday going forward each week to which the Maternal Grandparents allegedly agreed.
The Maternal Grandmother alleges that she and the Maternal Grandfather were married in 1990, separated in 2003, and then resumed cohabitation in June 2020. She alleges that she and the Maternal Grandfather have always been close and are very good friends. She alleges that they have a son, Mr M, aged 27 years. She alleges that her family, including the Mother, is very close.
The Maternal Grandmother alleges that she eventually met the Applicant Father, with the Mother, prior to the eldest child’s birth. She alleges that she was the amazed at how extremely submissive the Mother was towards the Applicant Father at that meeting.
The Maternal Grandmother alleges that she and the Maternal Grandfather visited the Mother shortly after the eldest child’s birth in Melbourne. She alleges that they assisted the Mother with accommodation in Victoria. She alleges that the Mother came to visit them in Sydney in the middle of July 2019 with the eldest child and the Applicant Father.
The Maternal Grandmother alleges that she had an argument with the Applicant Father at some time between late February 2020 and mid-June 2020 in relation to the eldest child. The argument had arisen after the Maternal Grandmother had allegedly told the Applicant Father that the eldest child was very badly sunburnt. The Maternal Grandmother alleges that the Applicant Father aggressively swore at her in response.
The Maternal Grandmother alleges that communication broke down with the Mother between about the months of April 2020 and August 2020. She alleges that she and the Mother commenced communicating in about late September 2020 when the Mother left the Applicant Father. She alleges that the Mother and the eldest child lived with the Maternal Grandparents from late September 2020 until the end of November 2020 when the Mother secured a property in Suburb K.
The Maternal Grandmother alleges that the youngest child is in very good health and has met all his developmental milestones. She alleges that between December 2020 and the end of May 2021, the Mother lived in Suburb K and the Maternal Grandfather would be with the Mother during the day from 7 AM until about 6 PM and the Maternal Grandmother would spend most nights with the Mother.
The Maternal Grandmother alleges that the Second Respondent Father and the Mother worked out time spend arrangements between the Second Respondent Father and the eldest child.
The Maternal Grandmother alleges that at about the beginning of 2021 she could see that the Mother was struggling to bond with the youngest child. She alleges that the Mother told her that every time she looked at the youngest child she saw the Applicant Father and had flashbacks of what he did to the Mother. She alleges the Mother told her that she was afraid and did not feel safe in Sydney.
The Maternal Grandmother alleges that the Mother told her, following a short stay in Melbourne by the Mother, that she was tormented by flashbacks of what happened to her when she was with the Applicant Father.
The Maternal Grandmother alleges that the Mother moved to Melbourne in June 2021. She alleges that the children have been living with herself and the Maternal Grandfather since that time. She alleges that the Mother told her that she had spoken to the Second Respondent Father and asked the Maternal Grandmother if she would make arrangements with him to have the eldest child. She alleges that the Mother told her that the Second Respondent Father was also wanting to live in Melbourne and that the Mother and the Second Respondent Father were working things out.
The Maternal Grandmother alleges that the Second Respondent Father, the Maternal Grandfather and herself have made arrangements for the Second Respondent Father to spend time with the eldest child to fit into his new work schedule. She alleges that the eldest child lives with the Second Respondent Father from 5:30 PM on Sunday evenings and returns the eldest child to them each Thursday morning. She alleges that prior to this, it was less formal, and the eldest child lived with the Maternal Grandparents for at least 4 nights per week.
The Maternal Grandmother alleges her belief that the Mother is suffering from postnatal depression.
The Maternal Grandmother alleges that the youngest child’s routine is similar to the routine of the eldest child and that the two children are very close.
The Maternal Grandfather alleges that the Mother, in a distressed state, told him in about mid 2020 that the Applicant Father was abusing her and that she was terrified of him. He alleges that every time he saw the Mother during the period from about late February 2020 to late September 2020 the Mother appeared frightened. He alleges that the Mother contacted him in about late September 2020 and told him that she was escaping from the Applicant Father.
The Maternal Grandfather alleges that from late September 2020 the Mother and the eldest child came to live with the Maternal Grandparents until the Mother moved to Suburb K just prior to the birth of the youngest child. He alleges that they developed a close relationship with the eldest child and that the eldest child also became extremely close to the Maternal Grandmother.
The Maternal Grandfather alleges he is willing to facilitate time between the youngest child and the Applicant Father in Sydney immediately. He alleges that he does not have any ill feelings towards the Applicant Father and alleges that he would express his feelings as neutral.
The Maternal Grandfather alleges that he knows that the Second Respondent Father is against the Applicant Father having a relationship with the eldest child. In this context, he alleges that the Second Respondent Father has told him that he does not want the eldest child to be confused.
Child Dispute Conference Memorandum dated 3 February 2021
In relation to risk factors and family violence, the family consultant stated that the Applicant Father’s account of the incident relating to a current ADVO protecting the Mother from the Applicant Father was that the parents had an argument and the Mother was unable to control herself so he tried to leave and the Mother followed him so he grabbed her wrist to stop her from physically assaulting him. The Mother’s account to the family consultant was that the Applicant Father grabbed her and tried to push her down the stairs.
The Applicant Father alleged to the family consultant that the Mother was verbally aggressive towards him. The Mother alleged that the Applicant Father was verbally and physically abusive and emotionally manipulative and controlling during their relationship.
The Applicant Father reported to the family consultant that he has used cannabis intermittently. The Mother alleged that the Applicant Father was obsessed with acid and that he kept the drug in their home. She alleged that the Applicant Father smoked cannabis on a regular basis.
The Mother reported to the family consultant that the Applicant Father has incredible mood swings. She reported that the Applicant Father was reluctant to seek medical treatment for his mental health and that his mood swings impacted his daily functioning and their relationship.
The family consultant stated that the Mother had reported that she experienced symptoms of borderline personality disorder (BPD) as a result of issues within the relationship between herself and the Applicant Father, including allegations of family violence. She stated that the children spending time with the Applicant Father may have a negative impact on her mental health state which may have an adverse impact on her parenting of the children and this would be of particular concern given the developmental vulnerability of the youngest child
isas an infant.
The family consultant stated that the Mother and the Applicant Father had provided differing accounts of the Applicant Father’s mental health and the impact that this may have on his daily functioning and this may require determination by the Court. She stated that if the Court is concerned about the impact of one or both parents’ mental health on the parenting, the Court may be assisted by a single expert report that explores any mental health diagnoses, recommended treatment and the impact of non-compliance identified treatment, and the impact of any diagnosed mental health conditions on parenting.
Tender bundle material of the Mother and Maternal Grandparents
In an exchange of text messages between the Mother and the Applicant Father (pages 44 – 46), the Mother refers to the Applicant Father’s temper when he disagrees with her and he starts calling the Mother names, with the Applicant Father replying, “true. I was wrong for that and I regret calling you an idiot.… My reaction is out of line… This is you making a bad decision and me getting frustrated when you refuse to hear sense.”
In the police material in relation to the provisional ADVO dated 28 September 2020, there is reference to the Mother’s allegations made against the Applicant Father in respect to an alleged assault upon the Mother by the Applicant Father on 18 September 2020. Inter alia, the Mother alleges that the Applicant Father grabbed her right wrist and twisted it with his left hand, attempting to pull the Mother down to the ground. The Mother alleges that she pulled her wrist away in an attempt to free herself from the grasp of the Applicant Father and in doing so, she felt pain and her wrist began to bleed. In a COPS report created 23 October 2020, the police allege that time stamped photos provided to police by the Mother depict a fresh wound to the Mother’s wrist, contradicting the version supplied by the Applicant Father. The Mother alleged to the police that her relationship with the Applicant Father had been getting progressively worse to the point where she has now been allegedly physically assaulted. The police expressed their concern that further assaults may occur and that an AVO was needed to ensure the safety of the Mother.
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101 the Full Court of the Family Court of Australia (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
[37] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
[68]… 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.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
[80] In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of Orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
[81] Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the Father and the ICL that the Mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
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), and in this regard the Court refers to Banks & Banks above.
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
[95] The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
[96] In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[97] In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The Applicant Father has not yet spent time with the youngest child, Y. It is possible that the youngest child may benefit from the development of a meaningful relationship with the Applicant Father provided it is safe, both physically and psychologically, for him to do so.
Should the Applicant Father begin to spend supervised time with the youngest child on two occasions each week for a period of 3 hours on each occasion, from 10 AM until 1 PM, with such supervision being provided by the Maternal Grandfather, there is a real prospect of the youngest child beginning to develop a meaningful relationship with the Applicant Father.
The Second Respondent Father has a meaningful relationship with the eldest child and that child should benefit from the continuation of that relationship. Should the Second Respondent Father continue to spend time with the eldest child each week from Sunday at 5 PM to Thursday at 9 AM, there is a real prospect of the eldest child maintaining his meaningful relationship with the Second Respondent Father.
The Mother has a meaningful relationship with both children and the children should benefit from the continuation of those relationships. The Mother has been residing in Victoria since about June 2021. Since this time, the youngest child has been living with the Maternal Grandparents in Sydney and the eldest child has been cared for, separately, by the Maternal Grandparents on the one hand and the Second Respondent Father on the other.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
At this interim stage, the Court has a concern in relation to the youngest child, Y, spending unsupervised time with the Applicant Father. In the view of the Court, there is an unacceptable risk of harm posed to the youngest child in spending unsupervised time with the Applicant Father by reason of the real risk that the child will be exposed to verbal abuse, neglect and/or family violence.
In the above context, the Court has taken into account the Mother’s allegations against the Applicant Father relating to:
(a)family violence, including alleged verbal abuse, allegedly perpetrated against her by him.
(b)the Applicant Father allowing a third-party with drug use issues to care for the eldest child on one occasion.
(c)the Applicant Father’s use of illicit drugs,
(d)the Applicant Father’s mental health, including her allegations that the Applicant Father suffers from significant mood swings.
(e)his feeding of the eldest child.
In the above context, the Court also takes into account the Maternal Grandmother’s allegations against the Applicant Father of verbal abuse allegedly directed to her by him. The Court takes into account the allegations of the Maternal Grandparents relating to their observations of the Mother and Applicant Father when in company together. The Court takes into account alleged admissions by the Applicant Father, in text messages to the Mother, of verbal abuse and frustration exhibited by the Applicant Father towards the Mother. The Court takes into account the allegations in the police material against the Applicant Father and observes that there are outstanding criminal proceedings against the Father in the Local Court.
The above unacceptable risk can be addressed by the youngest child spending supervised time with the Applicant Father, with such supervision to be provided by the Maternal Grandfather. The Maternal Grandfather has sworn an Affidavit and he alleges, inter alia, that the children are thriving in the care of the Maternal Grandparents, that he is presently in a position to supervise the Applicant Father’s time with the youngest child, and that he does not have any ill feelings towards him and would express his feelings as neutral.
The Applicant Father proposes for the first 3 months that he spends time with the youngest child and that his time be supervised by the paternal Grandmother. She has filed an undertaking with the Court dated 17 September 2021 which the Court has considered. The Court has not overlooked that the Mother and the Applicant Father spent some time living at the residence of the paternal Grandmother. Nevertheless, the Applicant Father has not adduced any Affidavit evidence from the paternal Grandmother. The youngest child has not ever met the Applicant Father nor the paternal Grandmother. The youngest child will likely be most emotionally comfortable in spending time with the Applicant Father supervised by the Maternal Grandfather with whom the youngest child has a close relationship; such supervised time by the Maternal Grandfather will minimise the risk of the youngest child experiencing emotional distress in spending time with the Applicant Father, again in circumstances where she does not know the Applicant Father or the paternal Grandmother.
The Court has not overlooked the Applicant Father’s allegations as to care he afforded the eldest child, however, the Court’s concerns remain having regard to the above matters discussed under this need to protect primary consideration.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) additional considerations
(3)(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 children are too young to express a relevant view.
(3) (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 discussions above under the meaningful relationship primary consideration. The children would appear to have positive relationships with the Maternal Grandparents.
(3)(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 Mother and the Second Respondent Father have sought to take such opportunities.
(3)(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 and the Second Respondent Father have sought to fulfil such obligations.
(3)(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
The eldest child should not be adversely emotionally affected if the youngest child spends supervised time with the Applicant Father, nor if the eldest child spends time with the Second Respondent Father as discussed above under the meaningful relationship primary consideration. The youngest child, a half brother to the eldest child, is of very tender age, and would still be spending significant time with the eldest child as discussed above under the meaningful relationship primary consideration.
It is convenient at this point to discuss the Applicant Father’s interim proposal to spend time with the eldest child. He has not spent time with the eldest child since about September 2020, over a year ago. There is a significant suggestion, on the material before the Court, that as at that time, that is about September 2020, he may well have had a positive relationship with the eldest child having previously spent some time caring for the child, in conjunction with the Mother. As to the extent of the Applicant Father’s care of the eldest child, there is a dispute between the Mother and the Applicant Father as to the extent of the latter’s care of the eldest child, with the Mother alleging (and the Applicant Father disputing) that she was the eldest child’s primary carer from about April 2020. Bearing in mind the tender age of the eldest child in September 2020, about one year and three months, it is likely that the eldest child’s former relationship with the Applicant Father may well have dissipated to a significant extent. By reference to the above matters, the Court would assess that the Applicant Father is probably a person concerned with the care, welfare or development of the eldest child pursuant to section 65C of the Act and is entitled to pursue an application in relation to the eldest child.
The family consultant stated that given the context of the eldest child’s young age and developmental stage, and the length of time that has elapsed since the eldest child has spent time with the Applicant Father, there may be some difficulties in re-establishing a relationship between the Applicant Father and the eldest child. This may include the eldest child displaying some emotional and/or behavioural difficulties if he recommences spending time with the Applicant Father.
She stated that however, given the reported primacy of their relationship, re-establishing time may provide the eldest child with a sense of continuity of his relationship with the Applicant Father.
The family consultant stated it is highly likely that the eldest child will have some ongoing relationship with the Applicant Father as the Applicant Father is the biological Father of the youngest child, the eldest child’s maternal brother.
She stated that if the Court determines that the eldest child is not at unacceptable risk of harm, then it may be appropriate to consider orders that provide for him to spend some time with the Applicant Father.
She stated that given the eldest child’s current developmental stage, in order to facilitate his relationship with the Applicant Father, he was likely to benefit from spending time with him on a regular basis. She stated that the regularity of the eldest child spending time with the Applicant Father may need to be reviewed given the eldest child is also establishing a relationship with the Second Respondent Father.
The family consultant’s Memorandum was dated 3 February 2021 and related to a Child Dispute Conference held on 27 January 2021. She did not interview the Second Respondent Father. She could not predict the later formation of a meaningful relationship between the eldest child and the Second Respondent Father. There is a significant suggestion, on the material before the Court, that the Second Respondent Father began to spend time with the eldest child, following his move to Sydney, in about February 2021 leading to him spending time with the eldest child from Sunday to Thursday of each week, albeit that it would appear that the eldest child attends daycare on three days during the time he spends time with the Second Respondent Father. Again, the Second Respondent Father, as the biological Father of the eldest child, would appear to have a meaningful relationship with the eldest child. And the Court should also state that when the family consultant conducted her conference on 27 January 2021, a period of about four months had elapsed since the eldest child had allegedly spent time with the Applicant Father. The reality is that now the eldest child has not spent time with the Applicant Father for in excess of one year. Accordingly, the Court has a concern that the opinions of the family consultant (opinions stated in a Memorandum dated 3 February 2021) that the eldest child may well benefit from spending time with the Applicant Father are not grounded with sufficient knowledge of the present circumstances pertaining to the eldest child, including that child not having spent time with the Applicant Father for over a year, and the child now having a meaningful relationship with the Second Respondent Father, his biological Father.
The Second Respondent Father submitted that it could well be confusing for the eldest child to begin to spend time with the Applicant Father in view of the eldest child now having a meaningful relationship with his biological Father, the Second Respondent Father, and likely having no significant relationship with the Applicant Father. The ICL, who at this interim stage did not support the Applicant Father spending time with the eldest child, submitted that relevant and up-to-date expert evidence was required to consider how the eldest child would respond to having in effect two Fathers in his life. There is some force to these submissions. At this very early interim stage, it will not be in the best interests of the eldest child to spend Court Ordered time with the Applicant Father.
(3)(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.
(3)(f) The capacity of each of the child’s parents; and 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
In relation to the Applicant Father, the Court refers to its discussions above under the meaningful relationship and need to protect primary considerations.
The Mother and the Second Respondent Father would appear to have such capacities.
(3)(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
The children appear to be progressing and developing well.
As to the Applicant Father, the Court refers to its discussions above under the primary considerations.
As to the Mother, there is a significant suggestion, on the material before the Court, that she has experienced difficulties with her mental health, albeit that there is also a significant suggestion that the Mother has sought treatment for such difficulties.
(3)(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.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations.
The Applicant Father filed an Amended Initiating Application on 2 March 2021 in relation to, inter alia, the youngest child.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(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 its discussion of the “Evidence including competing allegations” previously in these Reasons in relation to apprehended domestic violence proceedings.
(3)(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.
These are interim proceedings.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
At this very early interim stage, and noting the tender age of the children, it will not be in the best interests of the children to make an order relating to parental responsibility, and ultimately, during oral submissions, it became apparent that neither party nor ICL was seeking an order relating to parental responsibility.
The Second Respondent Father seeks an interim live-with order in relation to the eldest child and seeks an order that the eldest child spends time with the Maternal Grandparents as agreed between himself and the Maternal Grandparents. Whilst the Court acknowledges that since the latter part of this year the eldest child has been spending some four nights each week with the Second Respondent Father, with the balance of the weekly time being spent by the eldest child with the Maternal Grandparents, the Court observes that the Maternal Grandparents time spent with the eldest child historically and to date has been significant, with their relationship with the eldest child being formed prior to the eldest child’s relationship beginning with the Second Respondent Father, and again they enjoy a close relationship with the eldest child. At this very early interim stage, it will be in the best interests of the eldest child to make an Order that he live with the Maternal Grandparents and spend time with the Second Respondent Father each Sunday at 5 PM to Thursday at 9 AM.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following interim parenting Orders:
1.X born in 2019 (X) and Y born in 2020 (Y) shall live with the Maternal Grandparents.
2.X shall spend time with the Second Respondent Father as agreed between the Second Respondent Father and the Maternal Grandparents, and in the absence of agreement, from Sunday at 5 PM to Thursday at 9 AM.
3.Y shall spend time with the Applicant Father on two occasions each week, for a period of three hours on each occasion, supervised by the Maternal Grandfather, at times as agreed between the Applicant Father and the Maternal Grandparents, and failing agreement each Monday and Wednesday from 10 AM until 1 PM at the Suburb B Community Centre, C Street, Suburb B, NSW.
4.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by August 2022.
5.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
6.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
7.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
8.The proceedings are adjourned for mention following release of the Family Report to a date in August 2022.
I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 4 November 2021
SCHEDULE OF PARTIES MR GEDDES Applicant MS CUNNINGHAM First Respondent MR SHAW Second Respondent MR ROBBS Third Respondent MR CUNNINGHAM Fourth Respondent
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