GILLESPIE & GILLESPIE

[2017] FCCA 135

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLESPIE & GILLESPIE [2017] FCCA 135

Catchwords:
FAMILY LAW – Interim parenting – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(3), 65D, 65DAA(3), 117(2A)

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Banks & Banks [2015] FamCAFC 36

Applicant: MR GILLESPIE

Respondent: MS GILLESPIE

File Number: PAC 1731 of 2016

Judgment of: Judge Newbrun

Hearing date: 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Parramatta

Delivered on: 3 February 2017

REPRESENTATION

Solicitors for the Applicant: Mitchell Lawyers

Solicitors for the Respondent: CBD Legal

Solicitors for the Independent Children’s Lawyer: Dignan & Hanrahan Solicitors & Attorneys

ORDERS PENDING FINAL ORDER

1. The children W born (omitted) 2005, X born (omitted) 2007, Y born (omitted) 2008, and Z born (omitted) 2012, shall live with the mother.

2. Subject to Order 4 below, the children shall spend time with the father, as follows:

   (a)Supervised by the Mother’s brother, Mr J, at such place to be agreed between the Father and the said Mr J, or failing agreement at the residence of the said Mr J, for not more than 4 hours on either a Saturday or Sunday of each week, as agreed between the Father and the said Mr J, or

   (b)Supervised by the maternal grandparents, Ms G and Mr P, at the residence of the said maternal grandparents for not more than 4 hours on either a Saturday or Sunday of each week as agreed between the Father and the maternal grandparents.

   (c)That Mr J and the maternal grandparents sign Undertakings in a form prepared by the Independent Children’s Lawyer detailing the nature of their proposed supervision and circumstances of suspension of the Father's time.

   (d)That for the purpose of the children spending supervised time with the Father, as above, changeover shall be effected on the following basis:

   (i)The children shall be collected from and returned to the residence of either of the said Mr J or the maternal grandparents as applicable.

   (e)Should the Father be unwilling to have Mr J and/or the maternal grandparents supervise his time with the children as referred to in the above orders, then the parties shall complete and lodge all necessary documentation to arrange upon an agreed accredited supervising service such as Phoenix Rising for the purposes of the children spending supervised time with the Father for not more than 4 hours on either a Saturday or Sunday of each week, as agreed between the parties. The Father shall be responsible for all fees and costs of the supervised contact payable to the supervising service.

3. That the Independent Children’s Lawyer shall forthwith require on not more than one [1] occasion per month the parties to undergo random urinalysis drug testing (under supervision and chain of custody) with such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the Collection, Detection and Quantitation of Drugs of Abuse in Urine, the results of which are to be provided to the Independent Children’s Lawyer within 48 hours of such request.

4. Following the Father providing to the Independent Children’s Lawyer two [2] clear urinalysis results pursuant to the above order, and having commenced an Anger Management Course (in relation to which he shall provide to the solicitor for the Mother and the Independent Children’s Lawyer evidence of commencement of the course), then the children shall spend unsupervised time with the father as follows:

   (a)Initially, for a period of two months, each alternate weekend from Friday 6pm until Saturday 6PM; and

   (b)Each Wednesday from conclusion of school until 7PM.

   (c)After the initial two month period, alternate weekends from conclusion of school Friday until Sunday 6PM; and

   (d)Each Wednesday from conclusion of school until 7PM.

5. That for the purpose of the children spending unsupervised time with the Father, changeover shall be effected on the following basis:

   (a)That the children shall be collected from and delivered to their school if a school day; or

   (b)If the children are not been collected from or delivered to their school, then the children shall be collected from and returned to the residence of the paternal grandparents.

6. That in the event the Applicant Father fails to undertake random urinalysis testing pursuant to Order 3 above, or fails to provide a clear drug testing result or provides a drug testing result which is positive for use of drugs or non-prescribed medications, then his time with the children pursuant to orders herein shall not commence and/or will be suspended until such time as he provides to the Independent Children’s Lawyer a further certificate confirming a clear drug urinalysis testing result.

7. That in the event the Respondent Mother fails to undertake urinalysis testing pursuant to Order 3 above, or fails to provide a clear drug testing result, or provides a drug testing result which is positive for the use of drugs or non-prescribed medication, then the Applicant father or Independent Children’s Lawyer shall have leave to relist proceedings on 48 hours’ notice.

8. That each party be and is hereby restrained as follows:

   (a)From taking or using any drug or non-prescribed medication whilst the children are in their care or during the period commencing 12 hours prior to the same; and

   (b)From allowing the children to remain in the presence of any person engaging in such behaviour.

9. That the Applicant Father shall attend to the supervision of the children and be present with them at all reasonably practicable times whilst in his care.

10. That each party be and is hereby restrained from denigrating the other party to, or in the presence of, the children, and shall ensure that the children shall not remain in the presence of any person engaging in such behaviour.

11. Neither party shall abuse, threaten or intimidate the other party in email, text message, or any other form of electronic communication between the parties.

12. Liberty to the parties and the ICL to relist the proceedings to the Court’s list on five days’ notice, in relation to any difficulty in implementing the above orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1731 of 2016

MR GILLESPIE

Applicant

And

MS GILLESPIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim parenting hearing concerns the children W born (omitted) 2005 (11 years of age), X born (omitted) 2007 (9 years of age), Y born (omitted) 2008 (8 years of age), and Z born (omitted) 2012 (4 years of age).

2. The parties married in 1999. They separated in March/April 2015 (per the Father), and in around an early May 2015 (per the Mother).

3. Following the separation, the children spent time with the Father on an alternate weekend basis, and at other times as agreed between the parties. It was only on 29 January 2016, that the Mother refused to make the children available to spend time with the Father.

4. In February 2016 the Father was charged by the police with stalk/intimidate and certain firearm offences. He was detained by the police for 10 days in February 2016.

5. On three occasions in March 2016, the Father saw the children at school.

6. On 20 April 2016, the Father commenced the current proceedings.

7. On 26 October 2016 the criminal charges and an Application for an Apprehended Violence Order were dismissed at Liverpool Local Court.

8. The Father works as an (occupation omitted). He is aged 43 years. The Mother’s occupation is stated to be (occupation omitted). She is aged 37 years.

9. On 26 August 2016, the parties consented to the Court dealing with the Father’s interim parenting applications on the papers by way of written submissions.

10. On 6 December 2016, the parties agreed to the children living with the Mother; and the Mother facilitating the children calling the Father on Tuesdays and Thursdays between the hours of 5:30 PM and 6 PM by telephone, with the time of the calls not limited to 30 minutes.

11. On 20 December 2016, by consent, and pending further order, the parties agreed to the children spending time with the Father, supervised by the Mother’s brother Mr J from 10 AM to 2 PM on 24 December 2016, at a place to be agreed between the Father and Mother’s brother, and if not agreed, the residence of the Mother’s brother; and they agreed to the Father being permitted to attend the children’s Nativity plays starting at 6 PM on 24 December 2016.

Material relied upon by parties

1. The Father relied upon:

   a)His case outline dated 26 August 2016;

   b)Submissions dated 23 September 2016 and 9 November 2016;

   c)Amended Initiating Application filed 16 June 2016;

   d)Notice of Risk filed 20 April 2016;

   e)His Affidavits filed 20 April 2016, and 20 December 2016;

   f)An Affidavit of Mr G (paternal grandfather) filed 20 December 2016; and

   g)Copy Advice of Court Results from the Liverpool Local Court dated 26 October 2016.

2. The Mother relied upon:

   a)Her case outline dated 18 November 2016;

   b)Response filed 24 August 2016;

   c)Her Affidavits filed 24 August 2016, and 19 December 2016;

   d)Her Notice of Risk filed 24 August 2016; and

   e)Affidavits of Mr J and Ms G (maternal uncle and maternal grandmother respectively) filed 19 December 2016.

3. The Independent Children’s Lawyer (ICL) relied upon:

   a)His case outline, and written submissions undated; and

   b)Minute of Order of ICL regarding changeover: Exhibit 3 filed by the ICL.

4. All parties relied upon certain exhibits:

   a)Transcripts of criminal law proceedings at Liverpool Local Court dated 24 June 2016, between the police and the Father, dated 24 June 2016 and 26 October 2016: Exhibits 1 and 2.

   b)Subpoenaed documents referred to in Mother’s schedule of subpoenaed documents relied upon: Exhibit 4.

Issues in dispute in the interim hearing/competing proposals of parties and ICL

1. The essential issues in dispute (and the respective proposals) are as follows;

   A) The nature and extent of the time the children should spend with the Father, and when such time should commence.

2. The Father’s Amended Initiating Application seeks, inter-alia, an interim parenting order that he spend five [5] nights per fortnight with the children (in a graduating fashion, after three months), together with other discrete times. However, the Father’s written submissions seek four [4] nights per fortnight.

3. The Mother’s Response proposes that the children’s time with the Father be supervised through a contact centre or with an agreed accredited supervising service, for not more than 4 hours on either a Saturday or Sunday of each week, or as agreed between the parties.

4. In the Mother’s Affidavit filed 19 December 2016, paragraph 13, she states that she is happy for the Father’s time to move to unsupervised time, but only upon a series of clean random urinalysis.

5. In closing oral submissions by the Mother’s solicitor on 20 December 2016, the solicitor for the Mother submitted, inter alia, that following the Father providing two months of clear urine results (to check for illicit drug consumption), and having commenced an Anger Management Course, the Mother would be content for the children to spend time with the Father on an unsupervised basis, and did not object to the paternal grandparents assisting in changeovers.

6. The ICL proposes interim parenting orders, inter alia, that the children live with the Mother; that they spend time with the Father each alternate weekend from after school Friday until 6PM Sunday, and each Wednesday from the conclusion of school until 7PM.

   B) As to parental responsibility, whether the Mother should have sole parental responsibility for the children, as sought by the Mother.

7. The ICL proposes that the issue of parental responsibility be left for determination at a final hearing. The Father seeks no interim parental responsibility order.

8. The ICL proposes that he be entitled to require the parties to undergo random urinalysis drug testing; that the parties be restrained from using non-prescribed medication. There is no objection by the parties to this occurring.

Agreed or undisputed relevant facts

1. The Father operated an (omitted) business and for some time during the relationship worked from an office in the family home. The Mother would assist with office work.

2. The separation of the parties occurred in about May 2015. The Father states in his Affidavit that after the separation, for some six months, the children would stay with him at his (omitted) address every fortnight for two nights (Friday/Saturdays). He states that from time to time, the Mother would come with the children and stay at this residence.

3. The Father states that for the period between the separation and 18 September 2015, the parties were getting along, they were talking and arrangements for when the children would spend time with the Father were good.

4. In about September 2015, according to the Father, the Mother told the Father that he could only have supervised visits with the children and the only place that they could stay overnight was with the paternal grandparents. This occurred on three occasions. The Father saw the children on his birthday on (omitted) 2015, and then spent one Sunday in the Christmas school holidays with the children, and then, towards the end of the school holidays, the children spent a Saturday night and Sunday with the Father at the paternal grandparent’s home.

5. The father visited the children in early January 2016 at the maternal grandparent’s home.

6. At the end of January 2016, the Mother refused to make the children available to the Father.

7. The Father saw the children on several occasions at their school in March 2016. Apart from this contact, the children have not spent time with the Father including telephone contact since the end of January 2016, however the Court notes that the parties agreed, on 20 December 2016, for the Father to spend some supervised time with the children on 24 December 2016, and that the Father was permitted to attend the children’s Nativity play at 6 PM on 24 December 2016.

8. On 3 February 2016, the Father was charged with stalk/intimidate related offences by the police. He remained in police custody for 10 days because he was unable to meet a condition of bail, namely to surrender certain firearms that he possessed. The Father states that he has owned firearms for over 20 years but has not actively participated “in the sport” for some years. He states the firearms are now in police custody.

9. The last occasion that the children spent time with the paternal grandparents was in about mid-January 2016.

10. The Father states that he has no history of violence or of committing any violent crimes. He states the only matters he has on his criminal record are driving related. He states that he has never been violent towards or harmed the Mother.

11. The Father states that the paternal grandparents have indicated to him their preparedness to “assist, wherever and if required.” The Father states that his parents are content to facilitate contact and collect the children as required. The paternal grandfather states the willingness of he and his wife to facilitate changeovers and supervise the children’s time with the father if needed. The mother has no objection to the paternal grandparents assisting with changeovers.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia 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:

   (a)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 paragraph 100 their Honours amplified their comments and said:

   (b)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.

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] 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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. 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.

6. 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.

7. 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).

8. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest 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).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and it 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.

10. 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 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

1. 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 and 65D.

The Best Interests of the Children

Section 60 CC considerations

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

1. The evidence before the Court indicates that the Mother has been the children’s primary carer in their lives and that the Father has substantially contributed to their upbringing as well.

2. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

3. There is a significant risk that if the children continue to not spend regular time with the Father that their meaningful relationship with him may be detrimentally affected. Similarly, such a risk exists if they were to spend supervised time with him for a considerable period.

4. Subject to the children being safe in spending unsupervised time with the Father, it is important, so as to maintain their meaningful relationship with the Father, particularly in light of the significant period post September 2015 to date that they have not spent regular time with the Father, that they resume spending unsupervised time with the Father as soon as possible.

5. The Court gives significant weight to this 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.

1. The Court has considered all the allegations made by the parties against each other relating to asserted family violence. The court does not propose to set out each and every allegation, but does refer to certain alleged incidents as set out below.

2. The Mother states that at the time of the separation, in about early May 2015, the Father was doing drugs and becoming unpredictable. She states that she recalls prior to separation, the Father would spend around $1, 000 per week on ice. The Mother asserts that she knows that the Father has a history of recreational drugs with cocaine and marijuana.

3. The Mother states that around May 2015 she asked the Father to move out of the home as she could not tolerate his behaviour any more. The Mother states that after separation she invited the Father to the home to see the children as he was welcome in the home. She states that the children would ring the Father and invite him for dinner. The children would ring him in the morning, the afternoon and before they would go to bed.

4. The Mother asserts that on 19 September 2015 she observed the Father in a bedroom at a relation’s home using illicit drugs with an unknown woman. The Mother became upset and walked back to her car where the children were waiting to leave. She asserts that the Father followed the Mother and started verbally abusing her. She asserts that the Father lunged at her causing her to lose her balance and fall backward onto the car. She states that the children witnessed the Father’s aggressive behaviour towards her.

5. The Mother alleges that towards the end of November 2015, beginning of December 2015, she attended upon the Father’s residence, entered the premises and was looking for a necklace in the Father’s room. The Father appeared and there was a physical altercation between the parties following which the Father ejected the Mother from the premises. The Mother asserts that the Father, a short time later, punched the side of the car in which the children were sitting.

6. The above incident was the subject of Local Court proceedings at the Liverpool Local Court and which were concluded on 26 October 2016.

7. In evidence before the Court is the transcript of those proceedings, in particular a transcript of the parties’ sworn oral evidence in those proceedings.

The Mother’s oral evidence at the Liverpool Local Court

1. The Mother stated in cross examination that on the day of the incident, but prior to the incident she had met the Father at a dress shop as previously arranged. When the Father arrived at the dress shop the Mother was in attendance there with the children and a friend.

2. On leaving the dress shop, the Mother states that she verbally abused the Father and accused him of stealing a necklace (previously purchased by the Father). The Mother left with the children, and at that point, she did not tell the Father that she was going to his premises at (omitted).

3. The Mother agreed that she went to the Father’s premises to recover the necklace, and left the children waiting in the car outside the premises. She proceeded into the Father’s bedroom and began searching for the necklace. The Father confronted her and the Mother demanded her necklace.

4. The Mother then the left the premises and proceeded to the car in which the children were sitting. A short time later, at the front gate of the premises, whilst the Mother and the children were in the car, the Father returned the necklace to the Mother. At that point the Mother again verbally abused the Father claiming that he was still retaining other jewellery belonging to the Mother. The Mother stated that the Father banged her car window and then gave her the necklace. She then left in the car. The Mother stated that she was cranky because she believed the Father had stolen her jewellery from her house. She agreed that she was not going to leave the Fathers premises until she got her necklace and jewellery.

The Father’s oral evidence at the Liverpool Local Court

1. The Father stated that after the separation and up to September 2015 the Mother brought the children to spend time with him each alternate weekend at his premises at (omitted).

2. The Father stated that, after the Mother refused to leave his bedroom, he took hold of the Mother’s shoulder and forced her out of his bedroom. (It is noted that the Mother’s oral evidence stated that she had already left his bedroom when this occurred).

3. The Father states that when the parties spoke to each other at the front gate with the Mother and children in the car, he had asked the Mother to leave the premises as the children had seen enough.

4. The Father states that he hit the window of the car after the Mother had verbally abused him asserting that she was not going to leave the premises until she got her jewellery. The Father had hit the window as he wanted the Mother to take the children away from the situation, and that he did not hit the window to scare her.

Other evidence

1. The copy Advices of Court Results dated 26 October 2016, show the following results for the police charges/applications brought against the Father:

   a)stalk/intimidate intend fear physical etc harm (domestic): not guilty after hearing;

   b)Application for Apprehended Domestic Violence order (on behalf of the Mother): the application for an apprehended violence order is withdrawn and dismissed. The application against the Father is withdrawn and the summons is dismissed;

   c)Destroy or damage property (DV); Contravene prohibition/restriction in AVO (domestic) (2 contraventions); matters withdrawn and dismissed.

2. The Mother asserts that in December 2015 the Father came to her residence so that they could attend the wedding. The Mother did not want to attend the wedding. The Father lost his temper and the children locked themselves in the Mother’s bedroom. The Mother asserts that at this time the Father became irate and threw items around the house.

3. The Mother asserts that the Father sent abusive messages to the Mother through the children’s telephone, and that the children read part of these messages.

4. The Mother asserts that she is “aware that (the Father) is doing “ice” and that is his drug of choice.

5. The Mother denies that she uses illicit drugs. The Mother states that although she does not use illicit drugs she would be happy to do drug testing, to ensure that the Father would participate in drug testing. She states, “I wanted him to be clean so he can see the children unsupervised. I did not trust (the Father) with the children if he was under the influence of drugs.” The Mother states that she has seen the Father get violent and abusive under the influence of drugs.

6. The Mother states that she asked the Father on 7 occasions in November and December 2015, to undergo drug testing but the Father did not take up the request.

7. The Mother states that the children attend counselling with a clinical psychologist at (omitted). She states that the children started to have this counselling prior to the ADV0 being obtained by the police.

8. The Mother states in her Affidavit filed 19 December 2016, that she has concerns as to the safety of the children if they were to be supervised by the paternal grandparents. She states, inter-alia, that she does not believe that they can keep the children safe, and that she has witnessed the Father intimidate and do what he pleases and not listen to them.

9. The Mother states that if the Court was to find that there is no present risk to the children, then changeover should occur at (omitted) police station or the school. She does not want the Father coming to her home. She states there is currently no ADVO in place to protect her. She also does not want the Father’s family members coming to her home.

10. The Affidavit of the Mother’s brother Mr J, inter-alia states that he is prepared to supervise the children’s time with the Father. They have a friendly relationship with the Father. They are prepared to supervise his time on one [1] occasion per week at their home or at an outing if weather permits. He and his wife are prepared to assist with any changeovers.

11. The Affidavit of the maternal grandmother, inter-alia, states that she and the maternal grandfather have a very close relationship with the children. They have an amicable relationship with the Father. She and the maternal grandfather are prepared to supervise the Father’s time with the children. They are prepared to supervise his time on one [1] occasion per week at their home.

12. The Father alleges that the Mother has used drugs in the past. In paragraph 83 of his Affidavit he sets out a text message from the Mother to himself in which the Mother states that she doesn’t need drugs from the Father, she has seen “(omitted)” yesterday. “So I’ll ring him to bring some…”

13. The Father acknowledges that the Mother has alleged against him drug misuse. He attaches to his Affidavit a pathology report in respect of urinalysis collection dated 1 March 2016, which was negative for illicit drugs.

14. The Father asserts that on 20 September 2015 he had a telephone conversation with the Mother and the Mother abused him for having an affair. He asserts that at this time the Mother broke a mobile phone.

15. The Father expresses concern that the Mother is trying to use the children against him and exposing them to dialogue between the parties.

16. In text messages between the parties in early October 2015, the Father informs the Mother that he is waiting outside to see the children. The Mother told the Father the children were asleep. The Mother asked the Father to leave. She stated that if the Father wanted to call later, she would be happy to organise time “today” for the Father to spend time with the children.

17. In the Father’s Affidavit filed 20 December 2016, he states that he recently spent time with the children in the following circumstances:

    a)On 17 November 2016 he attended Mass at a (omitted) church for the child X’s first (omitted) and he sat with the child and Mother in the church. After the mass the Father stayed back and spent some time with the children.

    b)On 18 November 2016 the Father attended the children’s school for the school assembly and award ceremony; the child Z was aware of the Father being present. After the assembly, the Mother invited the Father to stay to watch the girls rehearse for a Christmas mass performance. Altogether the Father was present at the school for about 2 ½ hours.

    c)On 23 November, 2016 the Father went to the children’s school about 3PM to see the children. The Mother arrived at about 3:45PM to pick up the children.

    d)On one December 2016 the Father attended the children’s school and spent about half an hour with the children.

    e)On 2 December 16 the Father attended the children’s school to watch the girls in rehearsals.

    f)On 7 December 2016 the Father attended the children’s school and spent about half an hour with the children.

    g)On 10 December 2016 the Father attended the children’s school for a community mass and barbecue, and the Father spent some time of the children.

    h)On 13 December 2016 the Father attended the children’s school and spent about half an hour with the children and the Mother present. Later he attended the school to watch the children perform in a Christmas concert.

    i)On 15 December 2016 the Father attended the children’s school and saw them briefly.

    j)On 16 December 2016 the Father attended the children’s school and washed children rehearse for the Christmas Eve mass.

    k)On 16 December 2016 the children invited the Father to McDonald’s restaurant. He spent some time with them at that place in the presence of the Mother.

    l)On the 17 December 2016 the Father met the children and the Mother at a shopping centre and spent time together for several hours.

Subpoenaed documents

1. The court has considered all the subpoenaed documents tendered by the Mother.

Discussion

1. The evidence before the Court indicates that the parties have experienced significant conflict with each other post about September 2015 for a significant period (though the Court notes that in the weeks leading up to Christmas 2016 the parties appeared to act together appropriately in the presence of the children), and it is important that in relation to any time to be spent by the children with the Father, that the children not be exposed to any possible conflict between the parties.

2. It is not without relevance that despite the Mother’s assertions that the Father was spending around $1,000 per week on the illicit drug ice prior to the separation she permitted him, post-separation, to spend unsupervised time with the children at his residence at (omitted) each alternate weekend, with overnight time on Friday and Saturday nights, up until about mid-September 2015 (and from time to time the Mother would come with the children herself and stay at the Father’s residence), when the Mother’s attitude changed and this unsupervised time ceased at her insistence.

3. Thereafter, the Mother insisted that the Father spend time with the children only at the paternal grandparents’ home. This occurred on three occasions. The Father saw the children on his birthday on (omitted) 2015, and then spent one Sunday in the Christmas school holidays with the children and then towards the end of the school holidays, the children spent a Saturday night on the Sunday with the Father at the paternal grandparents’ home.

4. As to the necklace incident of 30 November 2016, being the subject of criminal police proceedings against the Father at the Liverpool Local Court, being concluded on 26 October 2016, the Court notes that the Father was acquitted. As the Mother submits, that is not the end of the risk analysis in relation to this incident that the Court needs to conduct for the purposes of these proceedings, as the criminal proceedings are subject to the higher criminal standard of proof. Whilst it was quite inappropriate for the Father to make physical contact with the Mother in his residence and thereafter bang the car window in the presence of the children, the Mother should not have taken the children to the Father’s residence in her quest to recover her necklace and jewellery in an angry state.

5. The Father, at paragraph 52 of his Affidavit filed 20 April 2016, states that he has never been violent towards or harmed the Mother. The Fathers does not expressly deny the Mother’s allegations, inter alia, that post separation on at least several occasions he exhibited angry behaviour (such as yelling) towards the Mother and in the presence of the children. The Mother does refer to the children at certain times being fearful of the Father’s irate behaviour.

6. The Court notes that numerous allegations made by the Mother against the Father (e.g. surreptitiously watching the Mother, and the Father paying people to follow the Mother) lack particularity and evidential support.

7. The Court notes that there is no allegation against the Father that he has been violent towards the children, including no allegations of verbal abuse towards them.

8. Whilst the Court is presently unable to make findings of fact in relation to the Mother’s allegations of threats and family violence of a physical nature perpetrated by the Father against her (apart from the necklace incident), in the presence of the children (eg an alleged incident of 19 September 2015 referred to by the Mother; in this context, it is noted that the Mother alleges that there were witnesses to this incident yet there is no supporting affidavit evidence from them), it would appear that there is probably some substance to the Mother’s allegations that post-separation on occasions the Father has exhibited angry and irate behaviour towards the Mother and in front of the children. Whilst it is not totally clear, there is a not insignificant suggestion in the Father’s text message evidence that post-September 2015, when the Mother ceased to facilitate regular time between the children and the Father, that the Father became extremely frustrated and upset towards the Mother accordingly.

9. In relation to the allegations of the Father’s illicit drug use, the Court notes that the subpoenaed records of DFCS, relating to the Mother’s report to that body on 7 October 2015, indicate that the Mother is not 100% sure that the Father is using ice, although she is sure that he is using marijuana.

10. The Court notes the subpoenaed records of the family GP indicating, inter alia, that the children were experiencing anxiety in relation to the parties’ relationship breakdown, and proposed therapy for them. The Court notes the negative drug screens for the Mother in early November 2015. The psychologist report of 11 January 2016 refers to the hostility between the parties.

11. In relation to the Mother’s allegations of the Father’s illicit drug use and her concerns in that respect, the clinical notes relating to the Father of 21 October 2015 refers to the Dr’s history taken from the Father that he “will try to stop drugs” and there is reference to urine toxicology. This clinical note relating to the Father clearly provides some factual support to the Mother’s assertion that the Father, at least post-separation, was using illicit drugs and indicates that there probably is a need to protect the children from the risk of neglect in spending unsupervised time with the Father should the Father be ingesting illicit drugs. At this interim stage, the court is of the view that this need to protect issue can be dealt with by requiring the Father to provide at least two [2] clear urinalysis tests before being able to spend unsupervised time with the children, together with an order entitling the Independent Children’s Lawyer to administer ongoing requests to the parties to undertake urine and drug tests and, in the face of positive tests, providing for a suspension of such time; the Court notes that the Mother is content for unsupervised time to commence in these circumstances. The Court is of the view that there should be no unacceptable risk in the children spending unsupervised time with the Father following the provision of such clear urine results and the Father having commenced an Anger Management Course again noting the proposed orders of the Independent Children’s Lawyer regarding drug testing.

1. It is appropriate that the Mother also be made subject to the drug testing orders in view of the evidence contained within the Father’s text message evidence relating to the Mother and possible drug use, and again noting the Mother’s willingness to undertake such tests.

2. The Court has considered the subpoenaed records tendered from NSW Police. The records variously reveal certain denials by the Father. The court proposes to make protective orders that each party be injuncted from sending abusive or threatening communications to the other party.

3. In relation to this need to protect primary consideration, the Court refers to its proposed orders at the conclusion of these Reasons for Judgment; the Court is of the view that the proposed orders will adequately protect the children from the risk of being exposed to abuse, neglect or family violence, whilst spending time with the Father and remaining in the primary care of the Mother.

4. The Court also 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

1. The Court refers to the various positive times that the children have spent with the Father post-separation to date, often such time spent at their request.

2. The children have expressed to the ICL that they wish to spend time with the Father; again the Court refers to the positive time spent by the children with the Father post-separation to date and their requests to spend time with him in this context.

3. Evidence before the Court also indicates that the children wish to spend time with the Father in the absence of conflict between the parties which past exposure to conflict has caused them anxiety.

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)

1. The children have a close relationship with the paternal and maternal grandparents and the Mother’s extended family, including her brother.

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

1. The Mother asserts that the Father, prior to the separation in about May 2015, was spending little time with the children and the Mother. The Mother asserts that after separation she would encourage the Father to spend time with the children but he was in effect disinterested. This is disputed by the Father, and there is not insignificant evidence of his desire post-separation to spend time with the children and his frustration and upset towards the Mother at such time not been facilitated by her.

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

1. The Mother asserts that the Father does not pay any child support. The Father’s position as to this additional consideration is not totally clear, although there is no suggestion that post-separation and up until September 2015 that he was not adequately maintaining the children whilst the children were in his care.

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

1. The Court refers to the meaningful relationship primary consideration discussed above.

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

1. There is no such difficulty nor expense.

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

1. Each of the parties have such capacities subject to the Court’s discussion under the need to protect primary consideration discussed above.

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

1. The Mother states that the children are continuing to have counselling through a mental health plan.

2. The Mother states that the children are overall doing well at school.

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

1. Subject to the Court’s discussion above under the need to protect primary consideration, each party has demonstrated such appropriate attitudes.

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

1. The Court refers to the need to protect primary consideration discussion above.

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 evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. The police obtained a Provisional Apprehended Violence Order against the Father on about 29 January 2016, on behalf of the Mother.

2. On 23 February 2016 an interim ADVO issued against the Father, with the protected person being expressly stated to being the Mother.

3. In the Mother’s Affidavit, she asserts that the police varied the interim order above to include the children but it was then varied again by the Father and the children were removed.

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

1. These are interim proceedings.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The presumption of equal shared parental responsibility probably does not apply by reason of the family violence incident involving the Father banging the car window (see the discussion above in relation to the necklace incident under the need to protect primary consideration).

2. At this interim stage, the Court is not satisfied that it will be in the best interests of the children to make an order that the Mother have sole parental responsibility for major decisions affecting the children. The Court notes the positive evidence from the Father that in the weeks leading up to Christmas 2016, the parties acted civilly towards each other in the presence of the children, particularly at times when the Father attended the children’s school events suggesting some prospect that in the not too distant future these parties may well be able to communicate appropriately and reach agreement between themselves in relation to significant matters affecting the children. At this interim stage, the Court does not propose to make any express order in relation to parental responsibility.

Summary

1. Evaluating the above primary and additional 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 children to make interim orders as follows:

   (1)   The children W born (omitted) 2005, X born (omitted) 2007, Y born (omitted) 2008, and Z born (omitted) 2012, shall live with the mother.

   (2)   Subject to Order 4 below, the children shall spend time with the father, as follows:

   (a)Supervised by the Mother’s brother, Mr J, at such place to be agreed between the Father and the said Mr J, or failing agreement at the residence of the said Mr J, for not more than 4 hours on either a Saturday or Sunday of each week, as agreed between the Father and the said Mr J, or

   (b)Supervised by the maternal grandparents, Ms G and Mr P, at the residence of the said maternal grandparents, for not more than 4 hours on either a Saturday or Sunday of each week, as agreed between the Father and the maternal grandparents.

   (c)That Mr J and the maternal grandparents sign Undertakings in a form prepared by the Independent Children’s Lawyer detailing the nature of their proposed supervision and circumstances of suspension of the Father's time.

   (d)That for the purpose of the children spending supervised time with the Father, as above, changeover shall be effected on the following basis:

   (i) The children shall be collected from and returned to the residence of either of the said Mr J or the maternal grandparents, as applicable.

   (e)Should the Father be unwilling to have Mr J and/or the maternal grandparents supervise his time with the children, as referred to in the above orders, then the parties shall complete and lodge all necessary documentation to arrange upon an agreed accredited supervising service, such as Phoenix Rising, for the purposes of the children spending supervised time with the Father for not more than 4 hours on either a Saturday or Sunday of each week, as agreed between the parties. The Father shall be responsible for all fees and costs of the supervised contact payable to the supervising service.

   (3)   That the Independent Children’s Lawyer shall forthwith require on not more than one [1] occasion per month the parties to undergo random urinalysis drug testing (under supervision and chain of custody) with such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the Collection, Detection and Quantitation of Drugs of Abuse in Urine, the results of which are to be provided to the Independent Children’s Lawyer within 48 hours of such request.

   (4)   Following the Father providing to the Independent Children’s Lawyer two [2] clear urinalysis results pursuant to the above order, and having commenced an Anger Management Course (in relation to which he shall provide to the solicitor for the Mother and the Independent Children’s Lawyer evidence of commencement of the course), then the children shall spend unsupervised time with the father as follows:

   (a)Initially, for a period of two months, each alternate weekend from Friday 6pm until Saturday 6PM; and

   (b)Each Wednesday from conclusion of school until 7PM.

   (c)After the initial two month period, alternate weekends from conclusion of school Friday until Sunday 6PM; and

   (d)Each Wednesday from conclusion of school until 7PM.

   (5)   That for the purpose of the children spending unsupervised time with the Father, changeover shall be effected on the following basis:

   (a)That the children shall be collected from and delivered to their school if a school day; or

   (b)If the children are not been collected from or delivered to their school, then the children shall be collected from and returned to the residence of the paternal grandparents.

   (6)   That in the event the Applicant Father fails to undertake random urinalysis testing pursuant to Order 3 above, or fails to provide a clear drug testing result or provides a drug testing result which is positive for use of drugs or non-prescribed medications, then his time with the children pursuant to orders herein shall not commence and/or will be suspended until such time as he provides to the Independent Children’s Lawyer a further certificate confirming a clear drug urinalysis testing result.

   (7)   That in the event the Respondent Mother fails to undertake urinalysis testing pursuant to Order 3 above, or fails to provide a clear drug testing result, or provides a drug testing result which is positive for the use of drugs or non-prescribed medication, then the Applicant father or Independent Children’s Lawyer shall have leave to relist proceedings on 48 hours’ notice.

   (8)   That each party be and is hereby restrained as follows:

   (a)From taking or using any drug or non-prescribed medication whilst the children are in their care or during the period commencing 12 hours prior to the same; and

   (b)From allowing the children to remain in the presence of any person engaging in such behaviour.

   (9)   That the Applicant Father shall attend to the supervision of the children and be present with them at all reasonably practicable times whilst in his care.

   (10)     That each party be and is hereby restrained from denigrating the other party to, or in the presence of, the children, and shall ensure that the children shall not remain in the presence of any person engaging in such behaviour.

   (11)     Neither party shall abuse, threaten or intimidate the other party in email, text message, or any other form of electronic communication between the parties.

   (12)     Liberty to the parties and the ICL to relist the proceedings to the Court’s list on five days’ notice, in relation to any difficulty in implementing the above orders.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  3 February 2017