Green and Townsend

[2013] FamCA 844

FAMILY COURT OF AUSTRALIA

GREEN & TOWNSEND [2013] FamCA 844

FAMILY COURT – CHILDREN – Interim orders – determination as to the child’s primary residence pending further order – consideration of relevant principles – family intervention by Department of Family and Community Services – Departmental and other concerns as to the father – issue as to separation of siblings – in child’s best interests that child live with mother and father have supervised time with children.

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

Marvel & Marvel [2010] FamCAFC 101
Goode & Goode [2006] FamCA 1346
MRR & GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Green

RESPONDENT: Mr Townsend

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3527 of 2013

DATE DELIVERED: 26 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

SOLICITOR FOR THE RESPONDENT: John Spence & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. Leave is granted to the Applicant to file and serve a Subpoena to the Department of Family and Community Services on short notice, with the documents to be returnable to the registry at 11:30am today.

2. Leave is granted to the parties to inspect documents produced on Subpoena by the Department of Family and Community Services today.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. All previous parenting orders in respect of the child B born … 2004 shall be suspended with the exception of Orders 7 to 10 of the Orders made on 23 May 2007 and as subsequently varied.

2. The mother shall have sole parental responsibility for the children B born … 2004 and C born … 2012 (“the children”).

3. The said children live with the mother.

4. Each party must:

   (a)contact Interrelate Suburb D or Relationships Australia Suburb E or such other agency or entity as may be approved by the Independent Children’s Lawyer upon application by the parties (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the father;

   (b)       attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)       comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

5. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Order 9 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

6. The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days’ notice.

7. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to have contact with the children on not less than two occasions each week at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

8. The mother must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

9. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 9, then contact shall occur at the times that are offered by the Contact Centre.

10. The time the children spend with the father under Order 9 is to be supervised by the Contact Centre and the father must pay the reasonable fees for the supervision on each occasion of supervision.

11. The father must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.

12. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then the Independent Children’s Lawyer may on 7 days written notice to the other parties and the Court restore the matter to the list. 

13. If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

14. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

THE COURT FURTHER ORDERS THAT:

1. The mother is authorised and permitted to travel internationally with the children B born … 2004 and C born … 2012 for such period as is provided for in Orders made on 23 May 2007.

2. The mother is authorised and permitted to apply for and receive an Australian Passport for the said children without first obtaining the written consent of the father.

3. The matter is adjourned to Tuesday 1 October 2013 at 12:00 pm for further directions before the Registrar.

4. The father be restrained by injunction from approaching or contacting the said children by any means whatsoever except as provided for in the Orders made today except with the written consent of the mother or Court Order.

5. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

6. The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

THE COURT NOTES THAT:

(a)It is proposed by the Independent Children’s Lawyer that the Department of Family and Community Services Case Worker Ms F will inform the child B of the Orders made today.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3527  of 2013

Ms Green

Applicant

And

Mr Townsend

Respondent

REASONS FOR JUDGMENT

1. On the 26 September 2013 the Court delivered extempore reasons for judgment.

The Proceedings

1. These are parenting proceedings commenced by the applicant mother in relation to the children B, born in 2004 and C, born in 2012. 

2. The mother’s application was filed on 19 August 2013 and in that application she sought final orders that, in summary provided:

   a)That all previous parenting orders in respect of the child B be discharged;

   b)That the mother have sole parental responsibility for the said children;

   c)That the said children live with the mother.

3. In that same application the mother sought interim orders that provided, in summary, as follows: 

   a)That all previous orders in respect of the child B be suspended with the exception of orders 7 to 10 of orders made on 23 May 2007;

   b)That an independent children's lawyer be appointed to represent the children;

   c)That the mother have sole parental responsibility for the children;

   d)That the children live with the mother;

   e)That the children spend no time with the father until further order; and

   f)That the mother be at liberty obtain passports for each of the children to facilitate her overseas travel in accordance with orders made in May 2007.

4. The father, in his response filed on 16 September 2013, sought orders on a final basis as follows:

   a)That all parenting orders in respect of the child B made in 2007 be retained;

   b)That an independent children’s lawyer be appointed to represent the interests of the said children;

   c)That the father spend time with the child C every alternate Friday from 9:00 am until Wednesday at 5:00 pm on the same schedule as the child B, and at other times as agreed between the parties.

5. The father sought interim orders that provided:

   a)That all parenting orders in relation to the child B be retained;

   b)That an independent children’s lawyer be appointed to represent both children;

   c)The father spend time with the child C as referred to above; and

   d)That the child C live in Australia at all times except as agreed between the parties or provided by Court order.

6. In support of her orders, the mother relied upon her affidavits, filed on 19 August 2013 and 25 September 2013. 

The mother’s evidence 

1. The mother was born in 1973 and she is presently 40 years of age.  She is a permanent resident in Australia, although she was born in the Country G.  The father was born in 1975 and is presently 38 years of age. 

2. The parties commenced a relationship in December 2000, separated on the first occasion in May 2005, recommenced residing together in about September 2007 and, after a somewhat on and off relationship, separated on a final basis in about July or August 2012.

3. There are two children of the parties’ relationship: B, born in 2004 presently aged nine and a half years of age and C, born in 2012, presently aged 15 months. 

4. Final parenting orders were made between the parties in relation to the child B on 23 May 2007.  They provided that:

   a)The mother and father have equal shared parental responsibility for the child;

   b)That there be a shared care arrangement in relation to the child during school term and school holidays; 

   c)That the mother be permitted to take the child to Country G once each calendar year for a period of not more than four weeks during July and/or August in each year, and otherwise from December 2010 once every three years for a period of four weeks covering the Christmas school holiday period; and 

   d)Ancillary orders were made in relation to the mother’s travel to facilitate the father being informed as to travel details.

5. The orders of 23 May 2007 were subsequently amended, in a minor way, on 6 June 2007. 

6. The mother and the father trialled a further reconciliation of their relationship in about February 2012. They lived together on and off over a period until about August 2012 when there was an incident involving, the mother asserts, domestic violence in respect of which the father was removed from her home by the police. 

7. The mother says that prior to separation she was both B and C’s primary caregiver.  She was engaged in part-time employment for most part.  The father worked full time and was the primary financial provider for the family.

8. Since separation B has been living and spending time with the father on a 50/50 basis with changeovers occurring at school each week on a Friday.  The child C has continued to live with her since separation, and C has generally spent time with the father on a day basis each Tuesday and Thursday, and additional days as agreed between the parties.

9. The father has since moved to Suburb H and since this time changeovers have occurred at the father’s home.

10. The mother says she feels uncomfortable during those changeovers as, as a consequence of past history, she is fearful of the father and his conduct towards her when they come in contact with each other.

11. The mother says that numerous issues and difficulties have arisen since their more recent separation, including the father’s ongoing physical and verbal abuse of her at changeovers, continual disagreements regarding the child B’s routine and schooling, the nature of the father’s financial contribution towards the children, the father’s refusal to attend parenting courses, and the father refusing B necessary medical treatment.

12. The mother says that in early 2013 the Department of Family and Community Services became actively involved in their family.  The parties were assigned a child protection case worker for the children and a child case work manager.  The parties were primarily engaged with Ms F from the Suburb I Community Service Centre.  Following the parties’ final separation, they entered into an agreed temporary parenting arrangement, referred to by the mother as a parenting plan. That plan it seems was brokered by and under the guidance of the Department.

13. The plan provided for the child B to live with the paternal grandmother in Western Australia and, during that time, to attend the J School at Suburb K, Western Australia, where the paternal grandmother was a teacher.  There were certain arrangements in relation to the parties’ communicating with the child during his absence and it was proposed that the child would return to live with the mother on 27 September 2013, that being tomorrow. 

14. The child travelled, pursuant to the interim parenting plan, to Perth on 15 July 2013 and a perusal of the child’s local schooling records reveals that the school recognises the child’s absence as an approved absence from that school. 

15. The mother gives a detailed history of the parties’ relationship, although the Court is not concerned with allegations prior to orders made on 23 May 2007, but, particularly in the context of this interim matter, is concerned with matters of more recent history. 

16. In December 2008 there was an incident at the father’s home at Suburb I.  The mother was assisted to leave that property by officers of the New South Wales Police Service and, as a consequence of what transpired on that day and an assault on her by the father, she attended her medical practitioner, Dr L at Suburb M, and a certificate was provided to the New South Wales Police Service detailing the findings in relation to the mother shortly after when she attended the GP.

17. The mother complained to her general practitioner of pain on the left side of her face, occipital headache, thoracic back pain and right upper arm pain.  On examination, there was tenderness anterior to her left ear, tenderness of her occiput and neck, a left upper chest bruise some two and a half centimetres in diameter, and small scattered bruises on her left upper arm, and a five centimetre bruise on the rear of her right upper arm.  She also had tenderness on both sides of her lower ribs.

18. The mother then refers to an incident in December 2011 where she asserts that the father chased her car in his car along the Princes Highway for about 20 minutes. 

19. The mother says that in March 2012 the father moved into her home.  Subsequently, after an incident shortly thereafter, he was removed from the home by the New South Wales Police and the mother was able to return to that home the following day. 

20. The mother says that during the resumption of their relationship the father continually abused the child B, calling him names such as “fucking dickhead, fucking moron” and saying “you’re an embarrassment to the [Townsend] family.” 

21. The mother had an ongoing fear and concern as to the father’s irrational and uncertain behaviour. 

22. The mother says that there have been many incidents between the father and her at changeovers in relation to the child C between January 2013 and April 2013, primarily involving the father being verbally aggressive and intimidating towards her in front of B and in front of the father’s parents. 

23. As a consequence of the conflictual relationship between the parties, the mother obtained a final apprehended violence order on 3 July 2013.  A copy of that order is exhibited to the mother’s affidavit and, among the usual statutory orders, also prohibits the father from attending within 100 metres of the mother’s residence.

24. The mother says that historically she has made complaints in relation to the father’s violence and conduct towards her and the children to various people and organisations, including the New South Wales Police Service, her counsellor, Suburb I Family Services, her doctor, the Victims Compensation Tribunal and the Department of Family and Community Services.

25. The mother exhibits to her affidavit a report, dated 13 August 2007, provided by the N Hospital Community Health Service that outlines and is supportive of the mother’s assertions in relation to the father’s conduct.

26. The mother says that she is otherwise in good health.  

27. The child B suffers from continual compacted bowels which has been a circumstance of the child’s health for about the last four or five years.  She says the child suffers from extreme levels of anxiety which she has been informed is largely as a consequence of the conflict between the parties and, in particular, the father’s behaviour in relation to the mother in the presence of the child, and in relation to the child himself. 

28. The mother says that she has explored a number of possible explanations for the child’s anxious and behavioural manifestations.  In 2010 the school suggested that the child may suffer from ADHD and the mother sought to make arrangements for specialist intervention.  The father would not consent to that intervention.

29. In 2013 the child’s school suggested that he be referred to the O University Research Institute for Children.  Once again, the father would not consent to the child engaging with this service. 

30. The mother is uncertain as to the father’s mental health and physical health, although she expresses concerns that he may suffer from some mental health issues due to his erratic violent behaviour and illogical behaviour.  She says that during the time that they resided together the father regularly drank alcohol to excess and at times smoked marijuana in the child B’s presence sometimes on a daily basis.

31. The father has recently engaged with counselling but that seems to touch upon issues arising from his behaviour issues and not mental health issues if any. 

The child B

1. B is presently enrolled in year 4 at P School.  He is experiencing significant difficulties at school both behaviourally and academically.  His results and his behaviour have deteriorated each year, however, this year, 2013, has been the worst year academically. 

2. The child’s school reports have been provided on subpoena and it is clear that as a consequence of a perusal of the child’s mid-year 2013 report that there are issues in relation to his behaviour. 

3. The school reports in the child’s mid-term report that:

   When expressing ideas the child responds in an argumentative manner, displays a disrespectful attitude towards teachers and his peers.  When completing independent work tasks he is easily distracted and regularly off-task.  Often puts little effort into his work and his samples of work do not accurately reflect his ability or understanding.  He frequently engages in attention-seeking behaviour often to the detriment of his work and the work of those around him.

4. In terms of his social development the school report notes that:

   He rarely takes pride in his work, rarely completes tasks in class, rarely is responsible for his belongings, and rarely borrows from the library. 

5. It is clear that the child requires some intervention, the nature of which is yet to be explored. 

The mother’s circumstances

1. The mother presently lives in a rented home through community housing. 

2. The child B has his own bed and bedroom and the youngest child, C, sleeps in a cot in her room. 

3. The children have extra-curricular activities, undertaking swimming and the mother has adequate assistance in relation to supervision when required. 

1. The mother is not in employment but is in receipt of Centrelink benefits and a modest sum of $44 per fortnight from the father in relation to the support of both children.  The mother owns a car and is able to transport the children accordingly. 

2. In terms of overseas travel which is the subject of the mother’s interim orders she says that pursuant to the 2007 orders she has been permitted to travel overseas to Country G to see her family once every three years.  She has not travelled back with the child, B, at all since the orders were made.  She has plans to travel to Country G to see her family this Christmas and would like to start booking tickets but the father has failed to provide his consent for the necessary passports for the children. 

3. The mother has engaged with her case worker at the Department of Family and Community Services and says as part of the plan recommended to her she intends to seek a psychologist to undergo continuing therapy. 

4. The mother is aware of her lack of present family supports as it appears that her supports are in the Country G. The mother has put her name down for group services at that centre and she’s waiting for a placement to become available so that she can engage accordingly. 

The father’s evidence

1. The father relies upon his affidavits filed on 16 September 2013 and 26 September 2013. 

2. He agrees with much of the history in terms of the parties’ on and off cohabitation.

3. The father takes issue with many of the factual allegations made by the mother particularly as to allegations relating to his conduct in relation to the mother or in relation to the child, B. 

4. The father says in relation to his present circumstances that following the more recent separation in August or September of 2012 he moved into his grandparent’s home at Q Street, Suburb H.  He had previously apparently stayed there when his grandparents went to Western Australia. 

5. He is self-employed as a consultant and works from home but in addition to whatever income that generates is in receipt of Centrelink benefits.  The father gives evidence of the various dates and occasions on which he has spent time with the youngest child C, and also in relation to the child B, pursuant to the orders that were made in May 2007.  He says insofar as his evidence is inconsistent with that of the mother that his evidence is accurate.

Objective material

1. Regrettably, in the context of these proceedings the Court is not able to make factual findings other than is supported by extraneous documents that support the evidence provided by each of the parties.

2. The father on 18 September 2013 attended a meeting at the Department of Family and Community Services and was informed that the Department’s position was that the child, C, is young and as the child has spent more time with the mother the Department wanted C to live with the mother.

3. He was further informed that the Department wanted the children to stay together and hence the child B would stay with C who lives with the mother.  

4. The father was further informed of the Departmental concerns in relation to B’s anxiety and particularly insofar as conflict arose during changeovers in relation to the child.  Somewhat unusually in relation to a matter that comes on before the Court on short notice the Court has some objective material on which it can rely.  Substantially that material comprises documents produced on subpoena by the Department of Family and Community Services. 

5. The Independent Children’s Lawyer has referred the Court to an interview conducted with the child B by the case worker, Ms F on 8 May 2013.  A detailed record of that interview comprises documents produced on subpoena in sleeve 2 produced by the Department of Family and Community Services.  In that interview the child was taken to the relationship between he and his mother and the father and the circumstances that pertain to their respective homes. 

6. In relation to his mother the child when asked: “Does she cook?  Is she funny” says: “What can I say.  She makes me do my homework, gave me my TV.  She has a beautiful house and gave me a guinea pig.” 

7. When asked to describe his mother he described her as: “Happyish although sometimes when I do naughty stuff she isn’t.” When asked what doesn’t he like about his mother, the child responds: “A lot of homework and she gives me a time limit.”

8. When asked to comment about his father and what he liked about his father he described a bigger backyard, that he had a TV in his room.  When asked for an adjective that would describe his father he says: “Well, he doesn’t make me do my homework which I like, what can I say.”

9. When asked for other words he described the father as: “Funny and nice but so is mum.  At times she’s nice but when she makes me do my homework she’s not.”

10. Disturbingly, when asked about the father’s accommodation he described the house in these terms: “A land mine outside my door, shootings in [Suburb H].  When mum and dad pick up [C] they might get shot.  One of my relatives might get shot.”

11. When asked about what he doesn’t like about his father: “When I get a smack on the bum.”

12. He also described concerns about the home:  A fire alarm always ringing, worried about the house is going to be set on fire. When asked to describe his feelings at the home he said: “Lonely, scared when I go to sleep.  I can hear possums.”

13. The interview clearly demonstrated that the father administers physical discipline to the child by smacking him on the bum.  When asked: Does he say anything?  The child says: “he says “Don’t do that again”.  He yells. Go to your room.  Sometimes he will lock me in the laundry in the dark.” 

14. When asked what he says when his father yells at him he says to his father: “Dad, stop.”  When asked: Does his father lose his temper?  The child says: “Yes, it happens a lot.  He doesn’t scream like hell but screams three quarters of the way.”

15. When asked: “Are you scared dad will hurt you?” The child says: “No.  He said he would never hurt me.  His screaming makes me nervous and jiggle.  I don’t like it.”

Departmental concerns

1. Otherwise, the Court is assisted by a letter, contained in the Department of Family and Community Service’s documents, that bears the date 19 September 2013, and is a letter addressed to the father at Q Street, Suburb H and signed jointly by Ms F, the case worker, Suburb I Community Services and Ms R, Manager, Case Work, Suburb I Community Services. 

2. The letter follows a meeting with the father on 18 September 2013 in an attempt to formulate and finalise a child protection case plan for the children, C and B. 

3. The letter notes that there were also meetings on 28 August 2013 and 21 August 2013 for this purpose. The father is informed in that correspondence as follows:

   As you are aware we were unable to finalise the case plan and the meeting was terminated by [Ms R].  The reasons for this included your insistence that there are no current child protection concerns in relation to your parenting and behaviours and that [Ms Green] is solely responsible for any issues of concern pertaining to your children.  During our meeting you disputed all issues raised spoke over both [Ms R] and I, did not provide us with opportunities to explain our views, accused us of colluding against you with [Ms Green] and expressed a belief that we did not have the children’s best interests at heart.  

4. The letter continues in the following terms:

   As raised during our meetings the concerns currently held by Community services include: 

   i)[B] has suffered from anxiety and stress due to his exposure to disagreements between you and [Ms Green]; 

   ii)in May 2013, [B] was chewing his lips and had a graze around his mouth from licking so much.  He was verbalising wanting to kill himself and he wanted to die and drew pictures related to death.  [B] had difficulties concentrating at school and was breaking out in rashes; 

   iii)exposure of both [B] and [C] to arguments and conflict between yourself and their mother which has involved yelling, swearing and kicking objects, etcetera; 

   iv)that you have perpetrated domestic violence against, [Ms Green].  Exposure of [B] and [C] to you speaking negatively about their mother in their presence; 

   v)that you discuss adult issues with [B] which gives him a sense of responsibility for your well being; 

   vi)you have unresolved issues from your youth which impact on your parenting style and result in you having unrealistic expectations of [B] which increases his anxiety; 

   vii)you have limited understanding on how your behaviours and anger impact on others including [C] and [B]. 

   viii)at different times you have not permitted [B] to engage with health and welfare professionals for his physical and mental well being;

   ix)there have been reported instances where you have screamed and berated [B] at school and on one of those occasions held him against a wall. 

5. The letter goes on to inform the father:

   At our meeting we advised that our recent referral to child protection counselling service for you was declined.

6. The father tells the Court through his solicitor today that he has in fact now engaged in such counselling and has attended two sessions as at today’s date. 

The Law

1. The nature of interim proceedings is such that the Court has little opportunity to make determinations as to fact.  In this regard the Court refers to Marvel & Marvel [2010] FamCAFC 101, where at [120] the Full Court said as follows:

   As has frequently been emphasised, interim parenting proceedings and orders made as a consequence as a temporary but necessary measure until all the evidence can be tested, evaluated, and weighted at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficulty and often for very good reason a conservative approach or one which is likely to avoid farm 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 interest of their child or children.  Interim parenting proceedings are frequently modified or changed after a final hearing, and any allocation of parental responsibility made on interim hearing is disregarded at the final hearing. 

2. The relevant principles relating to parenting and interim parenting procedures are set out in Goode & Goode [2006] FamCA 1346, and that pathway has more recently been confirmed in MRR & GRR [2010] HCA 4.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the legislation. The Court incorporates those objects and principles into this, the Court’s reasons for judgment. 

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the children as the paramount considering. 

5. Section 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child. 

6. Section 61DA provides that when making a parenting order the Court must apply a presumption that it’s in the best interests of the child or children for the children’s parents have equal shared parental responsibility.  That presumption does not apply where there are reasonable grounds to believe the parent has engaged in the abuse of the child or family violence, section 61DA(2). 

7. In interim proceedings where the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order, section 61DA(3), or if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests, section 61DA(4). 

8. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility this triggers the operation of section 65DAA that requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests or reasonably practicable. 

9. The application of the presumption in interim proceedings has been referred to in Goode (supra) at [56] and at [106-107] of Marvel (supra).

Best interest considerations

1. The Court is required to have regard to the best interests considerations as a before the Court can apply those considerations to the statutory pathway. 

2. As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53, the Court will look firstly to the best interests consideration set out in section 60CC in regard to the additional considerations.

3. The relevant additional considerations set out in the section are:

4. Any views expressed by the child or children:  there was no evidence before the court of any cogency or evidence the court could afford any weight to as to the views of the subject children who are both of tender years.

5. The nature of the relationship of the children with each of the children’s parents and other persons:  the nature of the relationship has been referred to above. More particularly since 2007 the eldest child, B, has been in what appears to be totally inappropriate shared parenting arrangements with reference to his age. The likely result of that is reflected in the child’s school reports.  There is no doubt that the child has a substantial and significant relationship with both parents, but that relationship is coloured by the underlying conflict between the parents, particularly as it relates to the father’s conduct referred to above. The Court has concerns about the ongoing relationship of the child with the father if it should continue in the context of the present arrangements.  There are no such concerns in relation to the relationship of the child with the mother. 

6. The extent to which each of the parents has failed or has taken the opportunity to participate in decisions about the child, spend time with the child, and communicate with the child.  The background circumstances relevant in this consideration are referred to above, and they are not determinative of this interim issue. 

7. The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.  There is reference in the Court’s reasons for judgment above as to the current child support circumstances.  The Court can make no comment other than what the current arrangements are.  The Court is not aware as to the particular financial circumstances of each of the parties other than referred to above. 

8. 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 parents or any other child or person with whom he or she has been living.  A primary consideration in these proceedings is that the children should remain together.  C is very young.  It appears that the child, B, is somewhat protective of his younger sister, and his relationship with that child is important to B.  The mother seeks an order that the father spend no time with either of the children, and the Court is not satisfied that such an order is appropriate in all the circumstances.  It’s important to maintain the relationship between the father and B in a controlled circumstance, and it is important to maintain the relationship between the father and the young child, C, to ensure that the relationship which is at the moment very early in terms of time continues to grow and develop appropriately whilst the Court further investigates the final orders to be made in these proceedings.  The changes sought by the mother is sought by her in protective circumstances where she says that the child, B, is at risk as a consequence of the ongoing conflict and the implementation of the current orders.  The Court is satisfied that that is a circumstance that is relevant to the Court’s determination, and notwithstanding that the orders proposed to be made by the Court will disrupt the father’s relationship with the children in the short term, the effect of such change may well be to give the child, B, some breathing space so that he can gather together some sense of ongoing stability that may assist him in terms of what have been behavioural and health issues at the moment that have not been the subject of specialist intervention.

9. The practical difficult in expense of the child spending time with and communicating with parents.  The parents live in reasonably close proximity.  The child B attends school close by and the orders that are proposed to be made by the Court will facilitate time with the father where there is no practical difficulty or expense involved in such happening. 

10. The capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs.  The weight of the evidence as it is particularly from the Department impugns the father’s capacity in relation to the child, B, in this regard.  No such complaint is made in relation to the father and the child, C, although there is a very strong inference arising from the evidence that she has been present when there has been conflict between the parties as described by the mother.  The Court has serious and ongoing concerns in relation to the father’s capacity to understand and acknowledge the underlying difficulties in his behaviour and attitude to, not only the mother, but to both of the children who are subjected to the ongoing conflict.  In this regard the Court is satisfied that it is appropriate to limit the father’s contact with the children so that they will not be adversely affected by these inadequacies until they are addressed by him with proper counselling or therapeutic intervention. 

11. The maturity, sex, lifestyle, and background of the children.  This is relevant in the context of the child, C, being so young and the bond that the child, B, has with C which is indicative of an order being made to ensure that the children are together, and in circumstances where they spend time with the father they do so together. 

12. The attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents.  The Court is satisfied that criticism can be levelled at both parties in relation to what has transpired since the orders of 2007.  They have remained in a conflictual relationship.  The inference being that mostly that has been generated by the father’s attitude and conduct, however neither of them has sought any therapeutic intervention to try and address those issues in their relationship in circumstances where they must both have been aware of the adverse impact of the behaviour and the exposure of the children to that conflict, in particular to the child, B.  A proper assessment of this factor will await a final report and final determination. 

13. Any family violence involving a child or members of the child’s family.  There are allegations made by the mother in this regard, supported by medical evidence and Departmental deliberations. The Court is satisfied that the father has perpetrated violence on the mother and that the child B has been exposed to same. A detailed determination awaits final hearing.

14. There is a family violence order in place that has been referred to in the reasons of the Court referred to above. 

15. Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.  These are interim proceedings.  There is a significant issue between the parties as to the orders of May 2007 continuing so the Court can have no regard to this factor. 

16. Any other fact or circumstance the court thinks is relevant.  There is no such factor. 

The primary considerations

1. The Court turns to look at the primary considerations.

2. The benefit to the children of having a meaningful relationship with both of the children’s parents.  In relation to a “meaningful relationship” the Court has regard to the observations by Brown J in Mazorski & Albright [2007] FamCA 520, as subsequently approved by the Full Court of the Family Court of Australia in McCall & Clark [2009] FamCAFC 92.  A meaningful relationship which is important, significant, and valuable to the children.  It’s a qualitative adjective and not a strictly quantitative one.  It is clear that the relationship between the child, B, and his father in the context of the ongoing conflict between the father and mother is not a relationship that is important and significant and valuable at the moment.  In fact it is destructive to the child both in a physical and psychological sense.  The impact of a relationship of that nature on the child long term causes the Court grave concerns as to the efficacy of an ongoing relationship with the father as contemplated by orders in May 2007, and the Court is satisfied that the relationship needs to be modified to be in circumstances whereby there is a third-party supervision and overview of that relationship for the benefit of the child.  The relationship between the father and the child C can continue in the context of his relationship with B and in those physical circumstances and not otherwise.

1. A consideration of this primary consideration favours the orders proposed to be made by the court for the father to have ongoing supervised time with the children. 

2. The need to protect the children from psychological or physical harm or from being subjected to or exposed to abuse, neglect or family violence. This factor is probably the most determinative factor in this case today.  The Court is required under section 60CC(2A) to give greater weight to this protective consideration.  The nature of those protective considerations have been referred to extensively by the Court in the reasons for judgment set out above, and they are strongly indicative of orders being put in place that are protective of the children from exposure to ongoing psychological harm as a consequence of the conflict between their parents, mostly at the hands of the father, and of course the father’s behaviour in relation to the child B when the child is in his care. 

3. Having regard to all of the above matters, the Court is satisfied that it’s not appropriate for the presumption of equal shared parental responsibility to apply in the context of this interim matter and that the orders made in May 2007 should be suspended.

4. Having regard to the best interests of the children the Court makes the following orders.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 September 2013.

Associate: 

Date:  24 October 2013