Hagarty & Valenza
[2022] FedCFamC2F 95
•1 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hagarty & Valenza [2022] FedCFamC2F 95
File number(s): TVC 838 of 2018 Judgment of: JUDGE CARTY Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – Further interim parenting application – father seeks unsupervised time with four year old child – mother seeks continuation of supervised time at a professional contact service – child has spent only supervised time with father since separation in 2018 and no time since May 2021 – significant distance between parental homes – Mother alleges that father has perpetrated family violence and abuse of her older children – assessment of risk – best interests of child – supervised time to continue – where father seeks leave to inspect Family Report prepared in previous Family Law proceedings involving the mother – mother opposes the application – leave granted subject to conditions – where mother seeks appointment of joint single expert clinical psychologist – where current Family Report is significantly out of date – where father initially opposes appointment of single expert and seeks updating family report – where father agrees in submissions that appointment of clinical psychologist is warranted given complex issues in case and allegations of each party that the other has mental health issues – order for appointment of joint single expert forensic and clinical psychologist made – parties to share costs. Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, Pt VII
Federal Circuit and Family Court of Australia Rules 2021, rr.7.04, 15.13(d)(ii)Cases cited: Goode & Goode [2006] FLC 93-286
Hearne v Street (2008) 235 CLR 125Division: Division 2 Family Law Number of paragraphs: 121 Date of last submission/s: 25 January 2022 Date of hearing: 25 January 2022 Place: Newcastle Applicant: Self-represented Counsel for the Respondent: Ms Graves Solicitor for the Respondent: Walsh Day James Mihal Pty Solicitor for the Independent Children’s Lawyer Legal Aid NSW City H Family Law ORDERS
TVC 838 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAGARTY
Applicant
AND: MS VALENZA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.All previous parenting orders which make provision for the child X born in 2017 (“the child”) to spend time with the father are discharged.
2.Within seven days of the date of these orders the mother and the father shall each do all things necessary to register with the children’s contact service (B Contact Service) at City C (“the service”).
3.Upon acceptance into the service the child shall spend time with the father supervised by the service on at least one occasion each month on such dates and at such times as nominated by the director or the manager of the service.
4.The child shall have electronic communication with the father by Skype or other form of videoconferencing, with such communication to be supervised by the service (including via the City D office) not less than once per fortnight on a day and at a time nominated by the director or the manager of the service.
5.For the purposes of facilitating the child’s supervised time and communication with the father the following provisions shall apply:
(a)The mother shall be responsible to pay the airfare for the father to travel from City E Queensland to City C Tasmania;
(b)The parents shall share equally the fees for the supervision of time and communication between the child and the father;
(c)The father shall be responsible to pay his airfare from City C to City E and, except as provided herein, all other costs and expenses associated with and incidental to spending supervised time with the child in City C;
(d)For the purposes of the child’s communication with the father by electronic means pursuant to order 4 hereto the mother shall deliver the child to the City D office of the Children’s Contact service on each occasion that such communication is scheduled by the service to occur.
THE COURT ORDERS THAT:
6.Pursuant to rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) expert evidence in this matter be given by Dr F and for such purposes the following provisions apply:
(a)Within 14 days of the date of these orders the parties and the Independent Children’s Lawyer shall confer for the purposes of preparing an agreed letter of instruction to the single expert, including a request that the single expert interview and observe the parties and the child and prepare a report to the court;
(b)The parents shall be each be responsible to pay one half of the estimated fees for the single expert, provided that the father shall not be required to pay any more than $4,000.00 in respect of his share of the fees for the single expert, and the mother shall be responsible for payment of the whole of the balance of the fees over and above the $4,000.00 maximum payable by the father;
(c)The parties shall each do all things reasonably required of them by the expert to ensure the timely completion of the report;
(d)The parents and the Independent Children’s Lawyer shall confer for the purposes of providing to the expert a jointly agreed tender bundle of documents produced in response to subpoena issued in this matter, and the tender bundle will be indexed and paginated and confined to documents directly relevant to the issues in dispute in these proceedings, noting in particular the provisions of section 60CC of the Family Law Act 1975.
7.Subject to the conditions set out below, and pursuant to Rule 15.13 of the Rules, the parties are granted leave to inspect the Family Report prepared in proceedings file number … in the matter of Valenza and G. The conditions are:
(a)Order 7, in so far as it grants leave to inspect, is stayed for a period of 14 days from todays’ date;
(b)Within seven (7) days the father shall notify Mr G of these Orders;
(c)In the event that Mr G has an objection to inspection occurring, he is to notify … within a further seven (7) days.
8.The parents and the Independent Children’s Lawyer are granted leave to relist the matter upon 48 hours’ notice to each other party in relation to an issue pertaining to:
(a)the preparation of the single expert report pursuant to order 6 hereto; or
(b)Order 7 hereto relating to the conditional leave to inspect the Family Report in Valenza and G.
9.The costs of each party incidental to the interim hearing on 25 January 2022 are reserved and adjourned to the final hearing.
10.All outstanding interim applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
The child who is the subject of these parenting proceedings is X born in 2017, currently 4 years old. The parents have been in dispute over the parenting arrangements for X for most of her life to date.
The parents each have interlocutory applications before the court and an interim hearing was held on 25 January 2022.
BACKGROUND
The parenting proceedings were initiated by the father on 5 July 2018 when the child was about one year old.
The father says that on a final basis, currently, he intends to seek an order that the child live with him in City E, Queensland.
The mother seeks, on a final basis, that she have sole parental responsibility for the child, and that the child live with her and spend no time with the father.
The child has lived with the mother, and has spent supervised time with the father at City H Children’s Contact Centre, since the final separation of the parents almost 4 years ago. The child has spent no time at all with the father since 30 May 2021.[1]
[1] Father’s affidavit paragraph 88
The father seeks to discharge the current interim parenting orders and he proposes that the child commence spending time with the father on an unsupervised basis.
The mother seeks to vary the existing interim parenting orders, but only to the extent that the child’s time with the father will be supervised by the Children’s Contact Centre (B Contact Centre) at City C each month, instead of supervision by the City H Children’s Contact Centre. The mother proposes that she pay one half of the fees for the supervision of the child’s time with the father, and for the father’s airfare one way from City E to City C, when the child is scheduled to spend time with the father at the Contact Centre.
The father contends that the mother has made numerous allegations about him which are false, and he asks the court to note that none of the mother’s allegations relate to his treatment of the subject child but rather to his treatment of the mother and her older children.
The mother contends that the child is at risk of harm from being exposed and subjected to abuse, neglect and family violence in the household of the father, which risk arises from the father’s conduct towards the mother and her older children during the parents’ relationship.
The untested evaluation of the Family Consultant in the Family Report dated 14 June 2019, includes the following:
“This appears to be a very complex matter. Both parents have made proposals that have potentially serious implications for the wellbeing and future developmental trajectory of [X] and her siblings”[2] and
“There are inconsistencies in the information provided by both parents, and concerns about the psychological/personality presentations of both parents in this matter”[3]
[2] Exhibit E paragraph 219
[3] Exhibit E paragraph 220
This is indeed a high conflict and complex matter, further complicated by the age and developmental needs of the child and the distance between the parental homes.
The father continues to reside near City E in Queensland, where he has remained living since separation of the parents, and the mother and child moved from City H, New South Wales in early 2021 and now reside somewhere in Tasmania, along with the child’s three maternal half siblings.
The matter will likely require a final hearing, and will be listed for final hearing for 3 days commencing on 4 October 2022.
MATERIAL RELIED UPON
Applicant Father
(a)Exhibit A - Outline of Case document filed 17 January 2022;
(b)Affidavit of father filed 11 January 2022;
(c)Exhibit F- page 15 of Tender Bundle prepared by ICL; and
(d)Exhibit G- pages 3-5 of Tender Bundle prepared by ICL.
Respondent Mother
(a)Exhibit B- Outline of Case Document filed 17 January 2022;
(b)Affidavit of Mother filed 11 January 2022; and
(c)Exhibit C – pages 9-25, 26 and 31-57 in Tender Bundle prepared by respondent’s lawyer
Independent Children’s Lawyer
(a)Exhibit D- Outline of Case Document filed 18 January 2022; and
(b)Exhibit E- Family Report prepared by Family Consultant Ms J dated 14 June 2019
THE LEGAL PRINCIPLES – INTERIM HEARING
The manner in which decisions in interim parenting proceedings must be made has been authoritatively determined by the Full Court in Goode & Goode [2006] FLC 93-286. The legislative pathway set out in the Family Law Act 1975 (Cth) (“the Act”) must be followed when the court is making interim parenting orders.
In an interim proceeding the court is not able to make findings on contested factual matters, given that the proceedings are necessarily truncated and there is usually no opportunity for testing of the evidence of the parties and their witnesses by cross examination.
Parenting orders are made under the provisions of Part VII of the Act. The objects and principles from which the provisions of Part VII are to be applied are set out in s.60B of the Act.
In deciding whether to make a parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. (s.60CA).
In determining what order is in the child’s best interests, the court must consider the matters that are set out in s.60CC(2) and (3) in so far as they are relevant.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
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 (s.61DA).
When the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
PROPOSALS OF THE PARTIES
The father’s proposals
The father seeks to spend time with the child, “unsupervised for three (3) consecutive days each month when the Father is available to travel to Tasmania …the last weekend of each calendar month, upon giving the mother no less than fourteen (14) days’ notice in writing of his intentions to do so.”
The father seeks to progress the child’s unsupervised time with him to include 14 consecutive days, including overnight, during the Christmas school holidays, and week about in the term school holidays, with such time to occur in City E at the nomination of the father, and the parents to share the cost of airfares for the child and the accompanying adult.
The father sought an order for the preparation of an updated Family Report by Family Consultant Ms J. The father conceded during submissions that, as each parent contends that the other parent has mental health issues, a single expert report may provide assistance to the parties and to the court, and noting that the Family Report prepared in this matter is dated 14 June 2019.
The father seeks an order that the Family Report prepared in the parenting proceedings between the mother and her former partner Mr G (“the Valenza & G Report”) and concerning the child’s older half siblings, is released for inspection by the parties and the Independent Children’s Lawyer.
Finally the father seeks an order that the mother disclose her address to the Independent Children’s Lawyer within 7 days and that she be restrained from relocating the child from within a 20 km radius of the child’s current town of residence without the written consent of the father.
The mother’s proposals
The mother seeks an order that the parents register at the City C Children’s Contact Centre (“the service”) and that the child spend time with the father supervised each month by the service.
The mother also seeks that the child communicate with the father by Skype supervised by the City D branch of the service. The mother proposes that the costs of air travel to the centre and fees for supervision be shared equally, and otherwise the father pay his out of pocket expenses.
The mother initially proposed an order that the matter to be transferred to Division 1 of the City U Registry of the court for inclusion in a Magellan List, however she abandoned that proposal during the interim hearing. The mother’s Counsel agreed with the submission by the Independent Children’s Lawyer that the matter would likely not satisfy the criteria necessary for inclusion in a Magellan List and, in circumstances where the matter can be listed for hearing in City V in October 2022, the mother was content for the matter to remain listed for final hearing in the City V Registry and remain in Division 2 of the court.
The mother seeks an order for the appointment of Dr F as joint single expert to prepare a report, and that Dr F have permission to inspect the material produced on subpoena in the process of preparing the report. The mother seeks that the parties contribute equally to the cost of preparation of the single expert report.
The mother opposes the making of an order that would require her to provide her address to the ICL within 7 days and she opposes the restraint on moving the child more than 20 km from her current address without consent of the father.
Finally, the mother opposes the release of the Valenza & G Report for inspection by the parties in the current proceedings.
The parents each seek an order that the other parent pay their costs of the interim proceedings
The Independent Children’s Lawyer is opposed to unsupervised time between the child and the father. The ICL submits that the issue of whether the child shall have unsupervised time with the father is a matter more properly considered at the final hearing, having regard to the allegations of risk.
The Independent Children’s Lawyer supports the resumption of supervised time for the child at the City H Children’s Contact Centre once per month, but does not oppose an order for supervised time to occur in City C.
The Independent Children’s Lawyer supports telephone and video communication for the child with the father, and agrees that such communication ought to be facilitated by a neutral third party.
The Independent Children’s Lawyer submits that either an updated Family Report or a single expert report is appropriate noting that the Family Report by Ms J is dated 14 June 2019, and more than 2 ½ years old, and she submits that the circumstances of the child and the parents have changed since the report was prepared.
The Independent Children’s Lawyer does not oppose the release of the Valenza & G report, and notes that issues as to relevance and weight may be dealt with at the final hearing.
AGREED FACTS
The parents commenced cohabitation in about 2012 in City E Queensland.
The mother has three older children from a previous relationship with Mr G who live with her, namely K currently aged almost 18 years, L 15 years and M 10 years.
X is the only child of the parents’ relationship, and she will turn 5 years old in 2022.
The parents separated on a final basis around 26 April 2018. They had lived together in City E QLD until January 2018 when, with the father’s agreement, the mother and the subject child (together with the older half siblings) moved to City H NSW, where the mother was completing her studies.
The father says that his understanding was that the mother and child would remain in City H for six months and then return to City E. The mother reports that, “she let the father believe that the move was temporary to allow her to study…and…’probably’ told the father she would return monthly with [X]. However she said that she never intended to do this because the move was ultimately a plan to escape the father’s violence and abuse of her and the children.”[4]
[4] Exhibit E paragraph 10
The father admits that in late 2018 child protection services substantiated that he did use excessive discipline against a child in his care, but did not assess that this caused ‘significant harm’.[5]
[5] Father’s affidavit paragraphs 20 and 21
In a note produced by Region N Health, during a clinical review meeting in relation to L, it is recorded that the children did not disclose sexual abuse when interviewed by child protection services and sexual abuse was not substantiated.[6]
[6] Exhibit F
Interim parenting orders were made in City E on 26 September 2018, following an interim hearing. Those interim orders provide, inter alia, for the child to live with the mother in City H NSW and spend time with the father supervised by City H Children’s Contact Centre, whenever the father is able to travel to City H (upon 14 days’ notice to the mother), and that the proceedings be transferred to City V.
In February 2019 the father applied for interim orders seeking to spend time with the child unsupervised or alternatively supervised by the paternal grandparents, which application was dismissed.[7]
[7] Father’s affidavit, Annexure H-05, paragraph 23-24
In 2019 the father was charged with offences. The parents agree that the charges did not proceed because the prosecution offered no evidence.[8]
[8] Father’s affidavit paragraph 80, 81; Mother’s affidavit paragraph 53-56
In December 2019 the mother applied for interim orders to relocate with the child to an undisclosed location within 300 kilometres of the Sydney CBD, which was opposed by the father and the Independent Children’s Lawyer[9]. That application was dismissed.
[9] Reasons for Judgment 16 December 2019
Further interim parenting orders were made on 10 February 2020 and, inter alia, effectively permitted the mother, subject to evidence of her employment, to relocate the child to live in the Region O area in NSW, and for the child to spend time with the father, supervised by P Contact Services at Suburb Q not more than once each month for up to 3 consecutive days, with the father to give the mother 14 days’ notice of his intention to travel to the area to spend time with the child.
In early 2020, the court also made restraining orders, pursuant to s.68B, prohibiting the father from removing the child from any school, day care centre, extra-curricular activity or any carer with whom the mother has placed her and restrained the mother from removing the child from Australia without the written consent of the father. The child’s name was placed on the AFP Watch List.
It appears that in early 2021 the mother relocated to Tasmania with the child, although the father says the mother did not confirm that she had moved until mid-2021.[10]
[10] Father’s affidavit paragraph 28
Currently the father lives in Town R, Queensland and the mother lives at an undisclosed address in Tasmania. The child has not spent time with the father since May 2021.
Both parents have completed an intake session with B Contact Centre at City C to enable the use of the Children’s Contact Centre there and dates are available for supervised time to occur from February or March 2022 onwards.[11]
[11] Exhibit C page 57; Mother’s affidavit paragraph
The mother is an Aboriginal woman, through her maternal lineage, from the S People of Region T of Tasmania.[12]
[12] Exhibit E paragraph 3
The matter was listed for final hearing in City V on 3, 4 and 5 March 2021 but was not reached and was adjourned.
Benefit to the child of having a meaningful relationship with both parents
It appears not to be in contention that the child has a meaningful relationship with the mother, who has been the primary carer for the child since separation, and no party seeks, on an interim basis, to disturb the existing arrangement whereby the child lives with the mother in Tasmania.
The Family Consultant notes, from her observation in June 2019, that the father was warm and appropriate in his interactions with the child and that the child responded enthusiastically to the father, and appeared to enjoy her time with the father and demonstrated affection towards him[13].
[13] Exhibit E paragraphs 213-217
The Family Consultant comments that the quality of X’s relationship with the father has undoubtedly been impacted by the irregularity of the time they have spent together.[14] In the two and a half years since the observations were recorded in June 2019, the child’s time with the father has become even more irregular and, as previously noted, the child has spent no time with the father for the past 8 months.
[14] Exhibit E paragraph 223
The child has not had the benefit of maintaining a meaningful relationship with the father, most likely due to her having spent no time with him since May 2021. Before May 2021 the child spent supervised time with the father, although that time was regularly disrupted due to a variety of different circumstances.
It appears that the criminal charges against the father in 2019, the disruptions in 2020 and 2021 due to the pandemic and the mother’s relocation with the child to Tasmania in 2021 have at various times impacted on the opportunities for the child to spend time with the father, and have disrupted the child’s time with the father at the City H Children’s Contact Centre.
The court considers that, pending finalisation of these proceedings, there is likely a benefit to the child of having the opportunity to spend time with the father on as regular a basis as reasonably practicable, given the distance between the parents’ homes. Inferentially the mother agrees, given her proposal for monthly supervised time to occur in City C.
Consideration of the risk of harm to the child from exposure to abuse and family violence in the household of the father and whether supervision will ameliorate the risk
S.60CC(2A) of the Act directs the court, in applying the primary considerations, “to give greater weight” to the primary consideration relating to risk of harm concerns than to the benefit to the child of having a meaningful relationship with both parents.
The mother submits that the father poses an unacceptable risk to X due to his behaviour towards her other children and she fears that he will behave in the same manner with X.[15]
[15] Mother’s affidavit paragraph 58
The mother alleges that from about 2013 the father was “physically, emotionally and sexually violent towards myself and the children.”[16]
[16] Mother’s affidavit paragraph 5
The mother says that X was conceived during an occasion when the father forced the mother to have sex with him.[17]
[17] Mother’s affidavit paragraph 30
The allegations that the mother makes in respect of the father’s treatment of her older children include that he chased K, grabbed K by the neck and threw him to the ground[18], strangled and punched K[19], was cruel to the children and threatened them[20], picked K up, held him over a balcony and threatened to drop him[21], pushed a bike on top of L, and pushed L with such force that the bike fell on top of L[22].
[18] Mother’s affidavit paragraph 6
[19] Mother’s affidavit paragraph 19
[20] Mother’s affidavit paragraphs 15-18
[21] Mother’s affidavit paragraph 35
[22] Mother’s affidavit paragraph 36
The mother alleges that the father behaved in a sexually inappropriate manner towards M and favoured M over the boys[23], and that the father behaved in a sexually inappropriate manner towards the boys.[24]
[23] Mother’s affidavit paragraphs 20 -22, 24
[24] Mother’s affidavit paragraphs 25-27
The mother alleges that the father denigrated her and made racist remarks about her[25] and verbally abused her children.[26]
[25] Mother’s affidavit paragraph 8
[26] Mother’s affidavit paragraph 11
The mother alleges that the father installed security cameras at the house to watch her and the children while he was at work[27], and was controlling of her and the children.
[27] Mother’s affidavit paragraphs 14 and 32
The mother alleges that the father denigrated her older children’s father and prevented M from having a relationship with her father.[28]
[28] Mother’s affidavit paragraph 23
The mother says that she did not report the father’s behaviours to the police during the relationship “out of fear” and that she complained to police as soon as she was able to escape the relationship.[29]
[29] Mother’s affidavit paragraph 39-40
The mother alleges that L and K have each made statements to police, and disclosures to counsellors about the abuse and family violence[30]
[30] Mother’ affidavit paragraph 50
The mother deposes that L suffers from ongoing mental health issues[31].
[31] Mother’s affidavit paragraph 51-52
The father denies that he has engaged in family violence or abuse, as alleged by the mother. He says that he has never been the subject of a DVO, he has never been convicted of physical or sexual assault involving any person, there are no current investigations against him by child protection services or police and he has not been identified as a person causing harm.
The father contends that the mother has not been honest about her mental health and that she threatened to kill herself during the parents’ relationship.
It appears, on the father’s own evidence, that during the parents’ relationship there were occasions when the father’s parenting of his step-children was inappropriate, but the extent to which the father’s conduct posed a risk to the step-children, or caused them harm, is hotly contested.
Issues of risk cannot be ignored for the purposes of this interim decision. Whilst the court cannot currently make an accurate assessment of what risk (if any) the father poses to the subject child, the court cannot simply ignore the mother’s allegations.
As previously noted, the Family Consultant has raised concerns about both parents and has noted some inconsistency in the reports of each of them. There are no definite recommendations made in the Family Report about the final parenting arrangements for the child because it will be up to the court to make findings, following a trial, about the risk of harm issues.
The mother’s allegations about the father’s conduct will need to be explored fully at trial. If the mother’s allegations are proven to be accurate and truthful then that will explain why she insists that time between the child and the father, pending the trial, is supervised. If the mother’s allegations are untrue, or exaggerated, then that raises an issue about the capacity of the mother to provide for the emotional and psychological need of the child to have a meaningful relationship with both parents.
The court, on an interim basis is unable to determine the contested allegations of family violence and abuse, nor the contested allegation that the mother lacks capacity to provide for the child to have a relationship with the father.
Those contested issues are a matter for the final hearing, however the allegations cannot be ignored and the court is required, on an interim basis to make orders that are in the child’s best interests and having regard to the matters which the court must consider, including the matters in s.60CC(2)(b).
The impact of change on the child
The father proposes that the child commence to spend time with him on an unsupervised basis and he says that the change in the child’s circumstances, whereby she has moved to Tasmania and missed out on time with him, warrants the court reconsidering the parenting orders on an interim basis and making orders for the child to spend time with him on an unsupervised basis.
The child has not spent time with the father at all since May 2021, and up until that time any time between the father and the child was supervised. The child has never been cared for by the father, since separation, without the presence of another adult.
The father conceded during submissions that, due to X not spending any time with the father for the past eight months, there would need to be at least a couple of sessions of supervised time, perhaps even three months of supervised time in City C, before X would likely feel comfortable to go with the father for unsupervised time.
The father’s proposal to spend time with the child would see the child be collected after school on a Friday and returned to school on a Monday on the last calendar month of the year, “when the father is available to travel to Tasmania.” There is no evidence by the father as to when he is likely to be in a position to commence spending time with the child in Tasmania, or whether he will be available to travel to Tasmania and spend time with the child monthly as he seeks.
It would be a significant change for X to spend time with the father unsupervised when she has not done so before and when she has not spent time with the father for more than eight months.
The court considers that an order for supervised time in Tasmania to occur monthly will likely lead to more consistent arrangements for the child to spend time with the father and that Skype, or other forms of electronic communication, will likely fill in the gaps between the occasions of face to face time and afford the child an opportunity to rebuild her relationship with the father pending final parenting orders being made after a trial.
Practical difficulty and expense of the child spending time with the father
The distance between parental homes since separation, including more than 1,000km when the mother and child were in City H NSW and the father was in City E QLD[32], and currently where the mother and child are in Tasmania and the father remains in QLD, creates significant practical difficulties and expense for the parents in facilitating the child’s relationship with the father.
[32] Exhibit E paragraph 8
The father submitted that the City H Centre is no longer willing to provide supervision. There was no evidence about that and the court cannot make any finding.
It is not reasonably practicable for the child to travel with the mother to City E each month to spend time with the father, supervised or unsupervised. The expense involved in purchasing return airfares for the mother and the child, likely involving 2 or 3 separate plane trips and 12‑14 hours of travel one way, taking into account connections[33], make the prospect of the child spending time monthly with the father in City E untenable. Inferentially the father accepts this is so, as his proposal is to spend time monthly with the child in Tasmania, when the father is available.
[33] Mother’s affidavit paragraphs 68
Further, the mother deposes that she has no accommodation in City E, fears for her safety there, and that she would have to pay for the accommodation expenses of herself and the child[34].
[34] Mother’s affidavit paragraph 70
A further consideration is the impact on the child’s maternal half-siblings of the mother travelling, including overnight, far away from home each month to facilitate the child’s time with the father.[35].
[35] Mother’s affidavit paragraph 74, 80-81
In order for the father to travel to Tasmania to see the child, he will need to fly from City E. His own proposal to spend time with the child monthly involves him travelling. The mother is willing to pay for the father’s flight from City E to Tasmania, but not the return flight.
X has lived solely with the mother since she was a baby. She is still a young child. The court considers that the child travelling to NSW or QLD to spend time with the father regularly is not appropriate given her young age, the fact that the mother would have to accompany the child, and taking into account the cost of the travel, the accommodation expenses of the mother and the child while in NSW or QLD and the impact of the mother’s time away from her older children, noting that it appears L and K each have special needs.
The court considers, for the reasons set out above, that a continuation of the supervision of the child’s time with the father is in the child’s best interest in the interim, and the court must act protectively and cautiously until any risks to the child can be properly assessed at a trial.
Supervised time for the child in Tasmania is the most reasonably practical arrangement in the interim in the current circumstances of this case.
Section 61DA
No party sought an order for the allocation of parental responsibility for the child in the current interim proceedings.
The court finds that it is not appropriate when making interim parenting orders in this case to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for her.
The court will not apply the presumption, and considers that in view of the allegations of family violence and the extremely poor co-parenting relationship between the parents it is not in the child’s best interests for there to be an interim order for equal shared parental responsibility. As the court will not make such an order then there is no need for the court to consider the matters in s.65DAA.
Updated Family Report or Single Expert Report
The father, during submissions, abandoned his application for there to be an updated report by Ms J and instead adopted the mother’s proposal to engage a single expert clinical psychologist to prepare a report to the court on the relevant issues pertaining to the parenting dispute. The father submitted that he would agree to pay one half of the fees for the single expert up to a maximum of $4,000.00.
The single expert proposed by the mother is Dr F whose professional address is in City U, Tasmania. Dr F is a Forensic and Clinical Psychologist, and her fees for preparation of the report are estimated to be approximately $7,700.00 including GST[36] and the report can be completed from May 2022 onwards[37]
[36] Mother’s affidavit Annexure V02
[37] Mother’s affidavit paragraph 60
The father initially opposed the appointment of Dr F, and he proposed an order, consistent with that sought by the mother in the alternative if the father opposed the appointment of Dr F, for the mother to provide him with a panel of three appropriately qualified experts and he select one. By the end of submissions it appeared that the father agreed that Dr F appears an appropriately qualified expert to undertake the assessment and report and that her estimated fees are within the expected range and reasonable, and that he would not oppose the appointment of Dr F.
Dr F is willing to travel interstate, if required, to interview the father. Given the mother and the subject child and the maternal half siblings live in Tasmania it would appear convenient for the single expert to be located in Tasmania. If required to give oral evidence, the expert can either travel to NSW (subject to payment of expenses and fees) or seek leave to give her oral evidence via electronic means.
The mother’s legal representative submitted that the mother is currently in the process of starting her own business and that her business, whilst in its infancy, is currently generating an income. The mother is not opposed to contributing to the cost of the report by Dr F which is estimated to be around $7,700.00.
The Independent Children’s Lawyer submitted that she will make an application to Legal Aid NSW for funds to contribute to the cost of the report. There is no evidence as to whether that application will succeed.
One of the limitations identified by the Family Consultant in the Report dated 14 June 2019 is that psychiatric evaluations of each parent have not been conducted, noting that each parent raises concerns about the psychological stability of the other parent.[38] The Family Consultant is a social worker and as such not qualified to assess the psychological state of each of the parties.
[38] Exhibit E paragraph 234
The court will likely be assisted by a single expert report that deals with the psychological state of each of the parents and any impact on their respective parenting capacities.
In the event that the parties are unable to agree on the joint letter of instruction to the expert, or if some other issue arises in relation to the appointment, then there will be liberty to apply for further orders and directions to ensure that there is up to date expert evidence available for the trial.
Valenza & G Report
In relation to the issue of the release of the Valenza & G Report dated on or about 7 May 2014, the father submits that that report deals with issues concerning the mother and her older children including during the period from 2012 when the parents commenced their relationship. The father says that report is relevant because:
(c)It will demonstrate inconsistencies between what the mother reported about her relationship with the father in 2014 and what she has said about the relationship since;
(d)It will show that the mother reported to the Family Consultant that M’s father did not want a relationship with M, and had minimal involvement with the boys;
(e)It will reveal what the boys reported to the Family Consultant about their relationship with the father; and
(f)It will show that the mother obstructed relationships between her older children and their father. The father alleges that the mother’s conduct in this case is calculated to obstruct X’s relationship with the father. The father submits that there is a pattern of behaviour by the mother.
The mother opposes leave being granted to inspect the report on the ground that it is out of date and not relevant because it concerns her older children who are not the subject of the current proceedings.[39]
[39] Mother’s affidavit paragraphs 65-66
The Independent Children’s Lawyer does not oppose the father’s application for leave to inspect the report.
Family Consultant Ms J identified that information pertaining the Family Law proceedings between the mother and Mr G may be useful for the Court.[40]
[40] Exhibit E page 3
The Valenza & G Report is 8 years old and may be of limited relevance in the present case however, as the Independent Children’s Lawyer submits, the issue of relevance and weight can be addressed at the final hearing.
The court has not read the report, however considers that it has the potential to shed some further light on the complex issues in this case and, provided the Report is released to the parties for inspection only at this stage and with notice to Mr G, privacy considerations and concerns as to alternate uses to which the information gleaned may be put can be appropriately managed.
In respect to the issue of privacy and any issue as to alternate motives, the court has regard to the decision of the High Court (Hayne, Heydon and Crennan JJ) in Hearne v Street, where their Honours said:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence”.[41]
[41] (2008) 235 CLR 125 at 154[96].
Mother’s address details
No evidence was addressed to the issue of the mother’s address nor the need for restraint on her relocating the child more than 20 km further than her current residence, nor were any submissions made in respect of either issue, and accordingly the court does not propose to make either order on an interim basis given that there is no evidence that such orders are appropriate.
For the reasons set out above the court considers that the interim parenting orders made at the forefront of these Reasons are in the best interests of the child, and that the procedural orders are appropriate to progress this matter to trial without undue further delay.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Dated: 1 February 2022