HARTLAND & HARTLAND
[2020] FCCA 937
•24 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARTLAND & HARTLAND | [2020] FCCA 937 |
| Catchwords: FAMILY LAW – Interim proceedings – parenting arrangements for children aged 7 & 6 – assessment of risk – exposure to family violence – nature of interim hearing – interim intervention order – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA, 68B, 68P, 68Q |
| Cases cited: B & B (1993) FLC 92-357 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 92-286 Mazorski v Albright (2007) 37 FamLR 518 Slater & Light [2013] FamCAFC 4 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MR HARTLAND |
| Respondent: | MS HARTLAND |
| File Number: | ADC 469 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 24 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tinning |
| Solicitors for the Applicant: | Boylan Lawyers |
| Counsel for the Respondent: | Ms Fuda |
| Solicitors for the Respondent: | Comley Legal |
ORDERS
Until further or other order:
The father spend time with the children of the marriage X born in 2012 and Y born in 2013 (‘the children’) each Sunday between the hours of 10.00am and 1.00pm commencing Sunday 26 April 2020.
The time ordered pursuant to order (1) hereof take place at the father’s place of residence A Street, Suburb B.
In order to facilitate each of the first four weekly visits, ordered pursuant to order (1) hereof, the wife’s brother Mr C is to deliver the children to the father’s home at the commencement of the time ordered in the absence of the wife.
At the conclusion of each of the first four visits, detailed in order (3) hereof, the father is to return the children to the mother in the foyer of the Suburb D Police Station.
Thereafter, upon the conclusion of the first four visits, as ordered in orders (3) & (4) hereof the parties are authorised by this order to exchange the children directly between them at a location to be agreed but failing agreement to be at either the front gate/kerb or front door of the father’s home, with the mother to signal her arrival at the property by sounding her horn.
That order (6) of the orders dated 17 May 2019 do continue but subject to the variation that the father is able to be within 50 metres proximity to the mother for the purposes of exchanging the children and spending time with the children pursuant to these orders.
That an injunction be issued restraining the father from having any other person or persons present during the time the children spend with him pursuant to these orders.
The Intervention Order dated 12 February 2019 be varied to the extent that it allows the time spending pursuant to orders (1) to (4) hereof to occur and allows the parties to come within 50 metres of one another for the purpose of facilitating handover.
That a copy of these reasons be provided to the presiding magistrate in the intervention order proceedings currently before the Adelaide Magistrates Court and to the Chief Commissioner of SAPOL.
A family report be prepared pursuant to section 62G of the Family Law Act 1975 to be released to the parties on or before 30 September 2020.
The matter be called over at 10.30 am on 9 June 2020 to be allocated a trial date unless earlier resolved between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Hartland & Hartland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 469 of 2019
| MR HARTLAND |
Applicant
And
| MS HARTLAND |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Hartland and Ms Hartland are the parents of X born in 2012 and Y born in 2013. The parties are in dispute about the extent of time and any conditions, which should attach to it in respect of the children spending time with their father.
From the father’s perspective, after what he perceives as having been a successful period of supervised time, at a children’s contact centre, it is now appropriate for X and Y to start spending time with him, for brief periods of time, on each Sunday, between 10:00am and 1:00pm, without the need for any further supervision, either professional or lay.
Ideally, he would want this time to take place at his home, which is located at A Street, Suburb B. He would agree that no other person be present, other than himself. The mother having been critical of him, in the past, for bringing other family members and friends to earlier supervised sessions.
He asserts that these orders are appropriate, in the light of the current pandemic crisis and can be characterised as being sensitive to the needs of both the mother and X, who has been reported by the mother as having displayed symptoms of anxiety. Whilst he does not accept this characterisation of X and is of the view that the time is appropriate for the beginning of overnight time, he proposes this gradual and caution approach as being an appropriate compromise, given what he recognises is the poor state of the parties’ parenting relationship with one another.
From the mother’s perspective, the children, but particularly X remain emotionally traumatised as a consequence of exposure to their father’s violent behaviour towards them and their mother during the parties’ marriage. As such, she contends that the court must take a very cautious approach to whatever time takes place and ideally it should take place in a public park and be supervised by her brother, Mr C.
This dispute arises at the interim hearing stage. As such, the court cannot resolve factual issues arising between the parties. The chief of which is the nature of the parties’ relationship and whether it was characterised by coercive and controlling family violence, as the mother asserts; or whether the parties each engaged in verbal arguments, with one another, as the father asserts.
It is also the father’s position that the mother has psychological issues and is unable to support the children having a proper level of relationship with him because of her own emotional needs arising from some difficult and tragic events in her past life. On the other hand, the mother asserts that the father suffers from emotional issues arising from his own difficult childhood, the chief of which is difficulty controlling his anger.
In this context, although neither party is medically qualified, each asserts the other should undergo a psychiatric assessment. In these circumstances, it is hardly surprising that the parties have been assessed as having no effective co-parenting relationship.[1] It is evident from the documents filed in the case to date that the parties do not trust one another and continue to harbour resentment regarding the difficult and traumatic circumstances surrounding the end of their relationship. These included a failed business which had adverse financial consequences.
[1] See child dispute conference memorandum dated 14 May 2019 at page 3
Background
The father commenced these proceedings on 7 February 2019. On both an interim and final stage, he seeks that the parties should have equal shared parental responsibility for the children and that they should live with each of their parents, in what is commonly called an equal time arrangement, moving between their parents’ respective homes on each Friday.
The mother responded to this application on 9 May 2019. On both a final and interim basis, she seeks an order that she should have sole parental responsibility for the children and that they should live predominantly live with her and spend time with their father, as the court deems appropriate. But initially, at the time of her response, any time should be at a children’s contact centre,[2] where it would be professionally supervised.
[2] Hereinafter referred to as a CCC
In addition, the mother sought an injunction, pursuant to section 68B of the Family Law Act 1975 restraining the father from approaching her and the children’s residence; denigrating her; removing the children from their school; or physically assaulting, threatening or assaulting her.
It is common ground, between the parties, that the mother has also brought her own private application for a restraining order, against the father, pursuant to the South Australian state legislation, in the Magistrates’ Court. An interim order has been made, which includes X and Y.
The father has contested this application but judgment, in the case, has been delayed due to the COVID-19 crisis. I have also been told that the Presiding Magistrate is awaiting a ruling from the Supreme Court of South Australia, in respect of jurisdictional issues, which apparently relate to the application. Precisely what those jurisdictional issues are and what application they have to these proceedings is unclear to me.
As this brief introduction indicates, the positions of the parties are polarised in the extreme. To a family consultant, who prepared a child dispute conference memorandum for the court in May of 2019, the mother asserted that she believed that the father sought an equal shared care arrangement in order to get back at her.
On the other hand, the father indicated that he had taken responsibility for his behaviour during the parties’ relationship by attending personal counselling and undertaking a Kids Are First course. To the family consultant concerned, he emphasised his view that the children required both parents in their lives and a level of balance and stability.
The father was born in 1980. The mother was born in 1977. They met in 2008 and married in 2011. The mother has two children from an earlier relationship. They are E born in 2004 and F who was born in 2006.
E and F’s father was Mr G. Tragically, Mr G died suddenly, whilst playing sports. After his death, it was discovered that he had a genetic condition known as Hypertrophic Cardio Myopathy, which is a genetically inherited disorder.
The mother has been told that both E and F have a 50/50 chance of developing this condition from puberty onwards. For obvious reasons, this difficult and challenging state of affairs is likely to lead to the mother being highly protective of not only E and F, but also X and Y. This situation is not assisted by anxiety arising from the COVID-19 pandemic.
The father is a self-employed tradesman. It is his case that, during the parties’ marriage, he was able to arrange his work so that he was able to be involved with caring for the children. He asserts that he regularly attended the children’s school and regular extra-curricular activities and was a full on dad.
It is his case that in early 2017, the marriage between the parties fell into difficulty and they separated for a couple of months before reconciling. The parties agree that they finally separated on 11 September 2018. Thereafter, it is the father’s position that he attempted to negotiate with the mother to spend time with the children but she was difficult to deal with.
In these circumstances, he arranged mediation, through H Counselling, in late 2018, in the hope of being able to spend time with the children during the school holidays. He wished to take them to Brisbane for a family reunion. It is his case that the parties were able, ostensibly at least, to reach an agreement in this regard and heads of agreement were finalised.
However, at the last minute, the mother resiled from this agreement on the basis that there was a bad storm affecting Queensland. The father concedes that there was a cyclone in Far North Queensland but for the mother to assert it had any implications for Brisbane is absurd. He asserts that the mother’s attitude to the mediated agreement is axiomatic of her resistance to him having any proper level of relationship with the children, which prior to separation was a strong and loving one.
The mother has deposed that she and the children, during the parties’ relationship, were subject to unpredictable and violent outbursts of anger from the father. In March of 2018, South Australian Police attended at her home as a consequence of a neighbour’s complaint about noise. She also alleges that the father behaved in a controlling manner in respect of financial issues arising out of their joint business interests.
In April of 2018, the mother deposed that X began to suffer alopecia in respect of her eyelashes and eyebrows, which her general medical practitioner attributed to stress. It is her case that it is the father who is the source of this stress. The father would assert otherwise, attributing the difficulty, at least in part, to the mother’s attitude towards him.
The mother also asserts that around about the time of the mediation process, she discovered that her car had been scratched and damaged, which behaviour she attributes to the father. However, although the matter has been reported to the police, he has not been charged with any offense and denies it.
The mother disputes that the father was an involved parent, asserting that it was she who was solely responsible for the care of X and Y and the only involvement the father had in this regard was to berate her as to the standard of care she provided for them.
Essentially, it is the mother’s case that she and the children were constantly on edge, due to the father’s unpredictable and violent mood swings. She also categorises him as being depressed and alcohol dependent. She has provided photocopies of prescriptions, which were provided to the husband. However, these documents are illegible on the court filed affidavit.
The case came into court, for the first time, on 18 March 2019. At this stage, I was advised that the mother’s application for an intervention order had been granted on an interim basis, naming the mother, X and Y as protected persons. The mother had not, at that stage, filed any answering documentation, although she had been served with the application.
It was agreed, at this stage, that the parties would enrol at the Suburb J Children’s Contact Centre and attend a child dispute conference, which was scheduled for 14 May 2019. The father also agreed to obtain a written report, from his treating psychologist, Ms K. In addition, without admission, the father agreed to be restrained by an injunction preventing him approaching the residence of the mother and children or assaulting or denigrating them in any way.
Regardless of the intense dispute, between the parties, regarding the nature of their relationship, it must be the case that X and Y know their father well. They occupied the same household from the date of their respective births until September of 2018. Thereafter, it appears to be the case that the children spent little, if any, time with their father. I am satisfied that this was not as a result of any lack of effort on Mr Hartland’s part.
In this context, Family Consultant Ms L reported as follows, on 14 May 2019, in her memorandum to the court, under the heading Issues for the Children.
“It would appear that X and Y have in the very least been exposed to co-parenting conflict, as well as stress and tension within the family household. Whilst their views are not know, it is recognised that they are likely to have felt confusion and uncertainty as a result of their parent’s separation. They may also feel confused as a result of not having spent any time with Mr Hartland recently, given that he was previously present in their lives. They are likely to benefit from continuing to be provided with an opportunity to discuss any concerns in an independent trusted setting through counselling.”
In this context, Family Consultant Ms L was able to eloquently summarise the dilemma arising for the court, at the interim stage, given the dispute between the parties regarding the issue of family violence, as follows:
·On the one hand, if the father’s narrative was accepted it would be anticipated that the children would be missing their father and therefore should resume some level of contact with him forthwith.
·On the other hand, if the mother’s narrative, regarding exposure to extreme family violence was accepted, then the court needed to proceed with caution.
It was in this context, that orders were made for the children to spend supervised time, with their father, at the Suburb J Children’s Contact Centre. As is well known, there are many demands, on the services of CCCs throughout Australia, from separated families.
In this regard, the Suburb J Children’s Contact Centre is no different to other contact centres throughout Australia. It was only in November of 2019 that the father was able to begin spending time with the children, approximately six months after he had initially enrolled. Accordingly, the level of the father’s relationship with the children has been significantly disrupted.
The Children’s Contact Centre Report
The CCC report is an important piece of evidence, as it contains the only independent appraisal of the children’s relationship with their father. It is also significant because it contains verbatim reportage of their conversations with their father and how they physically and emotionally interacted with him.
Ms Hartland has analysed the report and placed in a recent affidavit the portions of it which support her assertion that X, in particular, has a poor and mistrustful relationship with her father. Having read the entirety of the report, I am concerned that she has been highly selective in this regard and appears to have consciously overlooked any aspect of the report, which is favourable to Mr Hartland.
In addition, in my view, it is significant that very many of the negative comments, made by X, were in response to questions from CCC workers, who inquired after the visits had concluded what were X’s impressions of each visit in the context of gathering feedback from the child. In this context, it is uncertain what was X’s understanding of the nature of this feedback and who would receive it.
In my assessment, X’s impressions, given in feedback to the worker in question were not congruent with the reports of her behaviour with the father during the actual supervised sessions. In these circumstances, in my view, there is at least the possibility that the child is providing feedback, which will be consistent with her mother’s expectation of the visits.
In the lead up to the first visit, which occurred on 24 November 2019, Y was reported as having a big smile at the prospect of seeing his father. X was more non-committal. Thereafter, she engaged with her father and is reported to have smiled at him. I can see no reluctance, on X’s part, from what was reported, to engage with her father.
The second visit, which occurred on 8 December 2019, is one in which the mother relies on X’s comments to the worker concerned, when she said “I don’t know how to feel. I don’t want to be rude and leave … dad has always yelled at us and I have had to deal with it for a long time.”
This report is not consistent with the following passage of interaction, between the children and their father, which occurred approximately half an hour earlier:
“Mr Hartland helped Y with his book. Mr Hartland lay on the floor on his stomach. X went and lay on Mr Hartland’s back with her arms wrapped around his neck, she smiled as she did this. X gave Mr Hartland a neck and shoulder massage as Mr Hartland assisted Y with his activity book. X kissed Mr Hartland’s back. Mr Hartland said, ‘I love you.’ X smiled and said, ‘Love you.’ X looked at Mr Hartland’s necklace. X got out a Lion King book. Mr Hartland began to sing Hakuna matata, the children joined in. All three sang together smiling. Mr Hartland said he was going to take the activity books home with him and bring them back next time and that the children could take the pram and Hot Wheels.”
Time does not permit me to reproduce other aspects of the report, which are in a similar vein. They include other aspects of spontaneous affection, between the father and both children and the children each indicating to their father that they did not want to leave the session. The session of 19 January 2020 began with X hiding from her father as he entered the play room, then jumping out at him and smiling.
The mother places emphasis on a number of incidents where X became frustrated, whilst playing a game with her father, which she apparently lost. The evidence of the worker concerned is that Mr Hartland managed the child’s frustrations appropriately. I personally cannot detect anything of a sinister nature in these incidents.
Contrary to Ms Hartland’s assessment, in my view, the overwhelming theme of the CCC report is positive in respect of the interactions between the father and the children concerned. If anything, the confusion described by X, when she was asked in retrospect about the visit, is consistent with Family Consultant Ms L’s opinion that X and Y had been exposed to co-parenting conflict, which had left them confused.
In my view, although I appreciate that the compiler of the report has not been subject to cross-examination, her observations are not consistent with those of children, who have been emotionally traumatised to the extent that they have become fearful of a parent.
The last visit was on 2 February 2020. Ms Hartland was apparently present, during this visit, in another section of the contact centre. As a consequence, during the last visit, X elected to break her time with her father to reconnect with her mother but then returned to the session with her father. Thereafter, when playing basketball together, X was observed to cuddle her father tightly after she hurt her hand.
Later, X interrupted the visit again and when asked why she didn’t want to go back to her father, she indicated that “he always yelled at us and I don’t feel safe. He is only being nice because people are watching.” Y and the father hugged at the end of their visit and Mr Hartland indicated to Y “tell X Daddy loves her too. Okay”. The supervising worker recorded her final discussion with Mr Hartland in the following terms:
“Mr Hartland said that the visit was not what he expected and he was worried about X leaving. He said it was her Mum getting in her head and controlling the situation. Mr Hartland spoke about being in court soon and felt very anxious and unsettled not knowing about when he will see the children again. Mr Hartland had tears in his eyes during debrief.”[3]
[3] See affidavit of Mr Tinning filed 12 February 2019 at page 21
In summary, the CCC report indicates that the father behaved appropriately during all the supervised visits and the children were each content to exchange embraces and kisses with him. On this basis, I am satisfied that each child has the potential to maintain a meaningful level of relationship with their father and he in turn loves each of the children.
However, the relationship between the parents is obviously extremely poor and they mistrust one another. As a consequence, they do not communicate and therefore have no capacity to jointly formulate any strategy to defuse any possible anxious reaction demonstrated by X. In these circumstances, it is inevitable that the children’s loyalties, to each of their parents, will be strained and confused. This tendency seems to be more apparent in X than Y.
In this context, at least from the CCC report and the mother’s own affidavit material, there is little evidence to indicate that she is able to easily encourage the children to spend time with their father or to take steps to assist them to resolve their emotional tumult, precipitated by the breakup of their family.
Other issues
The case returned to court, following the release of the CCC report on 14 February 2020. The parties were not able to agree on any advance of the father’s time with the children. From the mother’s perspective, her private intervention order proceedings, which were then scheduled for completion before the Magistrates Court on 16 and 17 March 2020, needed to be finalised before any consideration was given to this issue.
The father’s position was that the court needed to move to a regime whereby he could extend his time with the children in a gradual manner. In this prospective he proposed some overnight time, from after school on Friday until 10:00am the following Saturday morning, with the initial handover to take place at the children’s school and the return to take place at the Suburb D Police Station.
He was also anxious that members of the children’s paternal family could start to spend time with the children. In this context, it is important to note that the paternal grandparents had spent a brief period of time, with the children, at the CCC.
It is Mr Hartland’s position that he has no desire to approach the mother for any other reason than to spend time with the children. In these circumstances, he is prepared to agree to an injunction, in wide terms, pursuant to section 68B of the Act.
However, he disputes the factual basis on which the mother asserts that there should be an intervention order and, in this context, he asserts that the inclusion of the children in such an order is a mechanism designed not to ensure their protection but to frustrate his relationship with them.
It is the thrust of his affidavit that he and the mother did have a conflicted and argumentative relationship with one another and he does not resile from the fact that, in the past, he punched a wall. However, it is his case that this occurred when the mother abused him. He also denies that the children were present during the arguments in question.
Essentially, the father would characterise the regrettable incidents between the parties as being situational and mutual incidents of violence, which do no credit to either party, but should not preclude him from having a proper level of relationship with X and Y.
The father also concedes that during the latter stages of the parties’ marriage he was frequently depressed and this was not helpful to his mood. These difficulties were exacerbated by the failure of the parties’ business, which coincided with the end of the parties’ marriage.
As previously indicated, it is a significant element of the father’s case that he has not been charged with any criminal offences relating to the mother and the police themselves did not see fit to instigate their own protection order proceedings on either the mother or children’s behalves.
Although Mr Hartland concedes the police did attend at the parties’ former family home, on one occasion, as a consequence of a disturbance being reported there by a neighbour, it is his case that there is no evidence of persistent police involvement in the life of the family.
Mr Hartland has recently provided a report from his treating psychologist, Ms K, whom he has consulted on eleven occasions between 19 April 2018 and 6 February 2020. Ms K diagnosed the father initially as suffering from moderate levels of depressive symptoms and a low level of anxiety.
She has provided Mr Hartland with supportive counselling and provided him with cognitive behavioural training to assist him managing his distress levels. In one sense, the level of stress in his life has diminished since his separation from the mother, but he has found not being able to interact regularly with his children to be extremely distressing.
It is the father’s position that his willingness to consult Ms K indicates that he is managing his current situation adequately and therefore is unlikely to react in any extreme manner in future. It is also his case that he does not suffer from any significant level of psychiatric or psychological impairment, which represents a risk to the children.
On 14 February 2020, given the intervention order proceedings were anticipated to be approaching conclusion, the proceedings were adjourned until 20 April 2020 for interim hearing. Each party was directed to file an affidavit, following the conclusion of those proceedings. In the meantime, it was ordered that the children spend time with their father, for two hours each month, at a play café subject to the supervision of their maternal uncle, Mr C.
From the father’s perspective, this was an inadequate outcome, and accordingly, he is disappointed that the intervention proceedings have not been finalised and he is apparently no further forward. The mother’s position is that this regime should continue at least until October. In this context, the mother deposes as follows:
“I say that it is my understanding of the comments made in the memorandum of Family Consultant Ms L resulting from the Child Dispute Conference that both the outcome of the Intervention Order proceedings and a Family Assessment Report are necessary before any unsupervised contact should be considered.”[4]
[4] Affidavit of Ms Hartland filed 16 April 2020 at [33]
I do not share the mother’s interpretation of Family Consultant Ms L’s memorandum. She recommended that a family assessment report might be of assistance in due course, to provide information relevant to the children’s views and their relationship with others, within their family constellation, including other family members and siblings.
In terms of her assessment of each of the parties, family consultant Ms L assessed the mother as being anxious and frequently tearful; whereas the father presented as being cooperative and somewhat frustrated by the current proceedings. The only reference to the intervention order was that it was inhibiting the parties’ capacity to have an effective co-parenting relationship with one another.
Ms Hartland has not provided any evidence regarding her current level of psychological functioning, particularly in the context of managing any anxiety. She has provided a letter from X’s teacher, for the first portion of 2020.
The teacher in question reports X as being teary and crying and voicing concerns about feeling upset about Mr Hartland (the father). The triggers for this behaviour have been identified as the weather, as when it is overcast and rainy, it apparently reminds the child of an incident where she felt scared; friends telling her what to do and other unknown triggers.
In addition, the mother has provided a letter from Ms N, a clinical psychologist who has seen X for twelve sessions of therapy, the first of which was on 18 January 2019. The report in question does not provide any specific diagnosis and indicates that Ms N was engaged in developing emotional regulation skills, for X, to help her better manage anger and anxiety, in the context of a difficult parental separation. The mother also reported to Ms N that X had behaved in an angry and aggressive manner, whilst at home.
Accordingly, in my view, in the absence of any definitive family assessment report, which involves X, Y and each of their parents and significant others, it can only be a matter of conjecture if and why X is distressed to the extent that she is. It is not axiomatically the case that it is as a consequence of her exposure to family violence, either emanating directly from the father or, as he would have it, in the context of a mutually abusive relationship between the parties.
In this difficult situation, the primary task for the court is one of assessing risk – on the one hand, the risk of exacerbating X’s anxiety; and, on the other, the risk of her (and indeed Y) being deprived of a proper level of relationship, with their father, on the basis of an uncertain hypothesis.
It would be the preference of the father that he be able to interact, with the children, at his home, which is located in Suburb B. The mother has no personal knowledge of the nature of these premises. However, she objects to them on the basis that, in 2008, when the parties began their relationship, it was her perception that the father did not live in particularly hygienic or child focussed circumstances.
Mr C filed an affidavit, on behalf of the mother, on 16 April 2020. As previously indicated, he is Ms Hartland’s brother and was authorised to supervise the children’s time with their father, at a play café, on separate Sundays in February and May. The third scheduled visit did not take place as a consequence of the pandemic crisis.
Mr C is critical that the father came to each of the visits in question with a retinue of family members and support persons. The father disputes the number of people involved but concedes that he did not come alone. I am not in a position to resolve the numerical controversy. However, at this juncture, in my view, the emphasis should be on the normalisation of the children’s relationship with their father in a conducive and supportive environment.
Mr C appears to have performed his supervisory task in an even handed manner. He describes the play café as being extremely busy as it was full of kids and parents and was very noisy, making conversations hard to hear.
Y embarked upon the visits without any great difficulties, but X was more reticent but was able to be encouraged to come. The children both greeted their father with a cuddle. However, on arriving at the play café, on each occasion in question, the children quickly ran off to play and did not seem to engage particularly intensely with their father. Mr C reports that Mr Hartland provided the children with some food.
The impression, I have from Mr C’s evidence, is that the two visits in question proceeded without any significant incident but that the play café premises were not particularly conducive to any one-on-one interaction between father and children.
It also seems to be the case that the children were distracted by the novelty and fun necessarily implicit in the play café and the presence of a lot of other children. In this sense, I am concerned that the comparatively brief interactions did not have the potential to add a significant level of meaning to the children’s parental relationship with their father.
In particular, I am concerned about the overall artificiality of the interactions in question. In this context, it was not likely to be helpful for Mr Hartland to bring along a number of supporters to the visits in question. Why he chose to do so, is a matter of conjecture for me. However, on balance, even if the play café was available, which it is not at the present stage, I am not convinced it is an appropriate venue to move this difficult case along in a positive direction.
The nature of an interim hearing
By their nature, interim hearings invariably arise against a background of serious family crisis and controversy. Given the urgency arising, such cases have to be listed expeditiously.
However due to the pressure of its business, the court is rarely afforded the opportunity to conduct a lengthy hearing, involving cross-examination of parties, which would enable factual issues to be resolved on the basis of findings of credit, at this interim stage.
In addition, other extrinsic sources of evidence, such as family reports, may not be available, making the determinative task more difficult. Rather, frequently, the court must make various provisional decisions, prior to an exhaustive hearing, in the context of what lawyers categorise as interim hearings.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[5]
[5] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
This is not the kind of case in which there are a large number, if any at all, agreed facts. The parties disagree about just about everything, particularly the prior care arrangements for X and Y; the nature of the relationship itself; and if and why X is distressed.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[6] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[6] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
As I understand the mother’s case, she asserts that X, in particular, has been “exposed to” family violence in the sense envisaged by the section and remains traumatised emotionally. The father disputes that there is any proper evidentiary basis to support such a finding.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[7]
[7] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
By necessary implication, arising from their respective affidavit material, whilst each acknowledge their relationship was difficult, the parties characterise the dysfunction in their marriage differently. It is not possible to make findings of fact in respect of this dispute due to the truncated nature of the interim hearing. However, the court is not in a position to defer its adjudication of any interim issues arising merely because of any evidentiary issues facing it.
In Deiter & Deiter[8], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[8] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [9]
[9] Slater & Light [2013] FamCAFC 4 at [37]
The risk identified by the mother is that X in particular will suffer an exacerbation of her anxiety, with possible long term implications, if she is compelled to spend time with her father in a situation which is not supervised by a person she does not know. Although she does not express it in concrete terms, Ms Hartland also suggests that she herself will have difficulty in dealing with such an outcome – that is one involving the children interacting with their father in an environment with which she is not entirely comfortable.
In B & B[10] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[10] B & B (1993) FLC 92-357 at 79,780
From the father’s perspective, he doubts that there will ever be any situation with which the mother is entirely comfortable for him to spend time with X and Y. As such, it is not appropriate for nebulous concerns about anxiety to become the definitive factor in determining how and in what circumstances he will spend time with the children because this will inevitably lead to an outcome which sees them spending no time with him.
In these circumstances, he would categorise the risk which the court must confront in significantly different terms. He asserts that there is a very real but unacceptable risk that the children will lose the potential to have a warm, intimate and spontaneous relationship with him, which is likely to have long term implications for their emotional sense of identity as they grow into adolescence, on the basis of uncertain and possibly spurious allegations that he represents some species of danger to them.
It is his case that his proposal represents a sensible midway point between the parties’ respective positions in the sense that it will not expose the children to any significant risk of harm but will enable them to re-establish a meaningful level of relationship with him.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Consideration
The legislation is clear that protective concerns, in respect of a child, must be elevated over those considerations relating to a child having a meaningful level of relationship with a parent. In my view, this does not mean that I am not required to give significant consideration to the benefits, which are likely to accrue to X and Y as a consequence of them having a meaningful level of relationship with their father.
At the same time, cases involving allegations of family violence must be closely examined because of the risk exposure to family violence represents to children. In this case, the mother does not point to one specific incident of violence, from which the children are struggling to recover.
Rather, it is her case that there have been a succession of incidents which have been cumulative in their effect. If Y has been exposed in this way, there is no cogent evidence to suggest that he continues to struggle with the adverse psychological consequences of such exposure. The CCC records indicate that he was content to see his father.
I acknowledge that the material in respect of X is more contradictory. I am not in a position to dismiss her teacher and her mother’s concerns but, as I have already indicated, in my view, there are other potential explanations for her expressions of anxiety and these expressions are not congruent with how she actually behaved when spending time with her father, at the CCC.
If the parties’ future interactions, with one another, are circumscribed and no stressors are added to such interactions, it appears to me that the risk of a further incident of family violence, between the parties, occurring in the presence of the children, is a modest one and, as such, not one which should prevent the children having a more meaningful level of relationship than that which is accorded by a brief monthly visit in the somewhat artificial confines of a play café.
In my view, the risk of the children not being able to have a sufficiently developed paternal relationship, as they grow through these important years of childhood, is a very significant one. The children are of tender years. They have spent only very brief periods of time, marked by significant gaps, with their father, in the eighteen months since their parents separated.
The years of early childhood are central to the development of secure and loving parental connections. It is clear from how Y was described at the outset of the first period of time at the CCC that he relished the prospect of spending time with his father.
The two have a meaningful level of relationship with one another, and, in my view, an overall consideration of Y’s best interests dictates that the relationship should be both supported and extended.
Y is 6; X is aged nearly 8. In purely arithmetical terms, the period during which they have not interacted with their father is a significant period of time – around 25% of Y’s life and 20% of X’s. For obvious reasons, the extent of this time must have implications for the warmth and freshness of the children’s relationship with their father.
In developmental terms, it is likely to be helpful to children to have a strong level of relationship with both their father and mother. As a consequence, I am concerned, in the current matter, about the risk of the children’s relationship with their father being diminished further.
The time proposed by the mother, in my view, will not support the maintenance of such a meaningful relationship – it is both too short and too artificial in nature. The question that arises is what are the risks incumbent on the court adopting the regime advocated by Mr Hartland, in the short term?
As indicated above, the risk of the children being directly exposed to an incident of family violence, between their parents, appears modest, if careful thought is given to how handover is managed, possibly involving the use of an intermediary, such as Mr C. In addition, the existence of the section 68B injunction provides a further level of protection for the mother.
The time proposed by the father is modest in its duration. It does not include overnight time. The mother’s allegations of mental illness and alcohol abuse are not independently supported. In these circumstances, the possibility of the children coming to some form of physical harm, whilst at their father’s home appears to me to be extremely remote.
It is the father’s case that X and Y are at the centre of a warm web of relatives on their paternal side. The Act emphasises the benefits likely to accrue to children from interacting with their extended family, particularly grandparents. Such interactions give children an idea of where they fit in amongst the generations. They are important and it is a child’s entitlement to have them, not the prerogative of a parent to withhold.
However, first the children need to consolidate their relationship with their father. Then consideration can be given to introducing wider aspects of the family. For this reason, in the short to medium term, time between the father and the children should be restricted to them.
Mr C seems to have been a moderating influence. However, the question is what does he add to the mix of this case, other than his involvement makes Ms Hartland feel better. There is no evidence to indicate that Mr Hartland has ever behaved inappropriately at any of the previous incidents of supervised time. In addition, even if it was available, I am concerned that the involvement of a play café serves more as a distraction than an assistance in advancing the children’s relationship with their father.
The major unknowable issue is whether X, during a period of time spent with her father, will experience some disabling episode of anxiety, for whatever reason. It is the central feature of the mother’s case, as I understand it, that the risk of this occurring is unacceptable for the court to take, at this juncture.
The fact remains that, at neither the CCC nor the play café has there been such an incident. In addition, such anxiety is not consistent with the child being described, in the CCC material, as having massaged her father’s back and kissed him, amongst other examples of affection.
Given the difficult situation, it is not to be unexpected that a sensitive child, such as X, would not experience some form of anxiety at the prospect of interacting with her father, after such a long interruption and in circumstances where she is well aware that her mother views him with a high degree of hostility.
However, in the absence of some cogent evidence that she is at some form of actual risk of suffering some level of harm, I do not consider that the prospect of such anxiety is a sufficient reason to curtail her level of relationship with her father to the degree advocated by the mother.
Essentially, I have come to the conclusion that the risk of the children not having a proper level of relationship with their father (or, more particularly of that relationship not having the opportunity to grow in the early years of childhood) is greater than the risk arising, possibly, of X being made anxious in some way. In any event, if the child is able to interact with her father and this goes well, the prospect of her being anxious must obviously be much diminished.
In purely objective terms, if the court had to be satisfied that nothing possibly could go wrong in respect of a time spending order, arising between highly conflicted and suspicious parents, it would never be able to make any such order. Necessarily, the court must progress such cases, including, in some circumstances, making an order which has an experimental flavour to it.
It is the father’s view that the mother is either hyper-vigilant in respect of the children or is intent on removing him as an active parent in their lives because of her ill will for him or some other reason, which is not related to X and Y’s best interests. As such, he asserts that there is a real risk that Ms Hartland will sabotage any order the court makes, which will not be in the overall best interests of the children.
In my view, given the manner in which the proceedings have been conducted thus far, the risk of this occurring cannot be regarded as being a remote one. Children interpret their world from the behaviours of those around them, particularly, for obvious reasons, their carers. Young children lack cognitive maturity and insight to interpret the emotions of such individuals, yet take their cues, as to how to react, from such emotions.
Clearly, Ms Hartland is an emotionally vulnerable person, who is deeply suspicious of Mr Hartland. Her mistrust of him may or may not have an objectively reasonable basis in fact. As such, it may be difficult for her to avoid influencing X either consciously or unconsciously. In addition, there is a significant degree of difference between the two possibilities.
If Ms Hartland is actively attempting to estrange X from her father, in my view, this would represent an extremely compromised level of insight into what are the responsibilities of a competent and proper parent. One of the responsibilities of a separated parent is to encourage and foster an appropriate level of relationship between any child concerned and the other parent involved.
If X is unconsciously picking up cues from her mother and reflecting her mother’s anxiety, this is a more difficult issue with which to deal but, in my view, there are ways to approach it. The most important factor, in respect of this issue, must be the objective assessment of the actual level of risk to the child. As I have assessed it, the chance of X being exposed to actual physical risk is slight.
As such, this is a case of fear of fear itself. It should not, in my view, represent a bar to the child being able to consolidate her relationship with her father, which the CCC report indicates has many positive aspects to it. The answer is removing Ms Hartland, as far as possible from handover arrangements and, if at all possible she herself works on the issues which confront her.
I appreciate, given the vehemence with which Ms Hartland has opposed the father’s time with the children being extended, that the orders I propose to make will be controversial. That does not give a party the right to frustrate and oppose them or indeed tacitly support or create any form of co-dependence with the child concerned.
Because of the degree of disagreement between the parties concerned, who are unable to agree on a way forward for their family, it falls to this court to determine what is in the best interests of X and Y. It would be my preference and more conducive for the service of the children’s welfare if Mr Hartland and Ms Hartland could agree on the necessary arrangements but they cannot.
Ms Hartland may, for all I know, be resentful that Mr Hartland has brought her to court and it has determined issues other than she would have wanted and taken a different view as to what will serve X and Y’s best interests to hers. Be that as it may, the law is clear on what are the obligations of a parent, who is subject to a time spending order.
In Stevenson v Hughes[11] Fogarty J expressed the duty as follows:
“It is important…that custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or passive resistance.”
Rather the duty concerned involves active obligations incumbent on a parent to encourage a child to spend ordered time with the parent and if necessary direct the child to attend in compliance with the relevant court order. Positive encouragement and support are what is required not token efforts or the subliminal conveyance to a child that they have a choice to make about time spending and what that choice should be.
[11] Stevenson v Hughes (1993) FLC 92-363 at 79,816
At the end of the day, the time sought by Mr Hartland, at this stage, is modest in its duration – three hours – it is difficult to see how, given what occurred at the CCC that this will result in an unacceptable anxiety burden for either child. It should be capable of being implemented.
Accordingly, I will make the orders proposed by Mr Hartland. At least initially, I propose that Mr C should deliver the children to Mr Hartland’s home. This will be for the first four visits, which will be weekly. At the conclusion of these first four visits, I propose that Mr Hartland return the children, to Ms Hartland, at the foyer of the Suburb D Police Station.
Thereafter, once the arrangements have settled in, the parties can exchange the children directly between themselves at a location to be agreed between them or failing agreement to be at Mr Hartland’s home. I will continue the injunction, agreed by Mr Hartland, subject to the variation that he be able to be in proximity to Ms Hartland to exchange the children.
I am unaware of the physical topography of Mr Hartland’s home, including whether it has a gate or some other form of kerbside demarcation. It will have a front door. Ms Hartland will be able to signify her arrival there by sounding her horn. Although, it smacks of a spy thriller, the children should be able to pass between their mother’s car and the entrance to Mr Hartland’s home and back again, without drama and without any great need for parental assistance. This, after all, is what children do at the school gate, even if they do not wish to attend school. Competent parents are able to manage any difficulties arising.
I have been provided with a copy of the interim intervention order issued by the Adelaide Magistrates Court on 12 February 2019. It was not made following the taking of evidence and no findings of fact have been made. In addition, Mr Hartland is contesting the factual assertions said to justify the making of the order. The Magistrates Court’s finding has been delayed.
The mother, the children relevant to these proceedings and Ms Hartland’s other two children are named as protected persons. However, the order permits contact in accordance with an order of a court exercising jurisdiction under the Family Law Act 1975. In these circumstances, in my assessment, the interim intervention order does not represent any impediment to the making of the orders, which I propose.
In any event, section 68P of the Act authorises the court to make orders inconsistent with a family violence order in certain circumstances. It attaches strict conditions to the exercise of this power. As a consequence, pursuant to the provisions of section 68Q, any portions of a family violence order which are consistent with such a parenting order are rendered invalid.
Pursuant to section 68P(1), if the court makes a parenting order requiring a child to spend time with a person in a manner inconsistent with an existing family violence order it is required to follow the steps stipulated by section 68P(2) :
“(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c)explain (or arrange for someone else to explain) the order or injunction to:
(i) the applicant and respondent in the proceedings for the order or injunction; and
(ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injunction; and
(iv) the court's reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a)the applicant and respondent in the proceedings for the order or injunction; and
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(4)Failure to comply with this section does not affect the validity of the order or injunction.”
The purpose of the orders made by the court, in the current proceedings, is to enable the father to spend time with the children X and Y at his home for a period of three hours, which is not subject to supervision. If necessary, the relevant interim intervention order is varied to allow this time to occur and to authorise the parties to interact with one another, including coming within 50 metres of one another to exchange the children to give effect to these orders.
I am satisfied that such an order will not expose the children to any unacceptable risk of harm and is an appropriate order to be made in all the circumstances currently prevailing for the reasons I have provided. It will assist the court to advance the proceedings herein.
I will order that a copy of these reasons be provided to the presiding magistrate in the intervention order proceedings currently before the Adelaide Magistrates Court and to the Chief Commissioner of SAPOL. I am satisfied that these reasons provide a sufficiently detailed explanation as to why any orders have been made, which are potentially in conflict with the interim protection order.
I am also satisfied that the terms of the current injunction made pursuant to section 68B on 17 May 2019, which the father agrees can continue, provides a proper level of protection for Ms Hartland and as such is appropriate so far as the welfare of the children concerned.
I further note that, pursuant to section 68C a police officer is authorised to arrest, without warrant, any person, whom that officer believes, on reasonable grounds, has breached any injunction made under section 68B.
The final issue remaining concerns the future management of the case. The orders made at the conclusion of this interim hearing are obviously provisional in nature and, given the polarised views each party has regarding the nature of their relationship, it seems highly likely that the matter will have to proceed to trial. Given the current pandemic emergency, such a trial will be allocated for some time in 2021.
At an earlier time, the case was referred to a call-over of matters to fix 2021 trial dates, scheduled to take place at 10.30 am on 9 June 2020.
Given this time frame, Mr Hartland is likely to want to press for an increase in his time well before the anticipated trial date. In addition, as previously indicated, at this stage, there are no plans in place to commission any independent expert assessment of the family. Such an assessment is likely to be essential for such a final hearing.
For the assessment to have any utility, it must involve the expert concerned interviewing the children and observing them interact with each of their parents. Social distancing regulations, arising from the pandemic, restrict these interventions taking place at the current time. Even at the best of times, in the Adelaide Registry, it takes around fourteen weeks for a report to be prepared.
At this juncture, there has been no examination of the parties themselves funding their own private assessment, which may be available sooner, but is also likely to be subject to the current impediments regarding social distancing.
In these circumstances, I will order that a family report be prepared pursuant to section 62G of the Family Law Act, with the report to be available on or before 30 September 2020. I will maintain the current call-over listing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 24 April 2020
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