Hoban and Herbert

[2015] FCCA 3514

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOBAN & HERBERT [2015] FCCA 3514

Catchwords:
FAMILY LAW – Interim parenting – children’s best interests – spend time with arrangements – significant absence of time between the children and father since separation of the parties – interim orders previously made for the parties to engage with a contact service – where the father’s time with the children through a contact service has not commenced – father proposes that he spend limited periods of time with the children with a person present – mother proposes that the father have supervised time with the children – consideration of the basis upon which supervision is suggested as necessary.

Legislation:

Family Law Act 1975, ss.13C, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 67ZBA
International Convention on the Rights of the Child
Evidence Act 1995

Applicant: MR HOBAN

Respondent: MS HERBERT

File Number: SYC 2270 of 2010

Judgment of: Judge Harman

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Parramatta

Delivered on: 12 October 2015

REPRESENTATION

Solicitors for the Applicant: Mr Taleb of Oxford Lawyers

Solicitors for the Respondent: Mr Farah of  Farah Lawyers, Solicitors & Barristers

ORDERS

1. Each parent shall within 24 hours contact (omitted) Contact Service and attend upon that service as soon as is practicable to complete all necessary intake to utilise the service for supervised changeovers (supervision being intended to ensure that the children are presented to spend time with their father and depart with their father without the parties needing to interact with each other and no other purpose).

2. Pending further Order, the father shall spend time with the children X born (omitted) 2006 and Y born (omitted) 2008 from 11:00am until 5:00pm each Saturday first such period to commence forthwith upon the (omitted) Contact Service advising that they are available for changeovers.

3. In the event that the (omitted) Contact Service cannot facilitate changeovers at 11:00am and 5:00pm then changeovers shall occur at such times as can be accommodated but with the intention that the children will spend not less than 6 hours each Saturday with their father.

4. The father’s time with the children shall be spent within the Sydney metropolitan area and not otherwise.

5. The father shall be entitled to telephone and communicate with the children between 5:00pm and 6:00pm each day and with respect to same:

   (a)The father shall initiate such telephone call to the mobile telephone that he has provided to X;

   (b)The mother shall ensure that the mobile phone is switched on, charged and in a mobile service area during that period;

   (c)The children shall be permitted to speak with their father with privacy and without interruption or distraction.

6. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete Family Dispute Resolution following release of the Family Report and no later than close of business 5 August 2016.

7. Pursuant to 62G the Court requests that an updated Family Report be prepared addressing the same terms of reference as previously ordered such report to be available if at all practicable no later than 10 June 2016.

8. The matter is listed for Final Hearing before Judge Harman at 10.00am on 25-26 October 2016 and to continue until completion.

9. In the event that either/any party requires the report writer for cross examination then written notice of that fact is to be given to the report writer/the Director of Family Consultancy services no later than 24 June 2016 and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party they shall cause the proceedings to be relisted and absent notice within 21 days of today’s date the report will be admitted without challenge.

10. Direct the Applicant to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 5 August 2016.

11. Direct the Respondent to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 9 September 2016.

12. Direct the Applicant, should he consider it necessary or appropriate, to file an Affidavit by him and only him answering any material in reply to the Respondent’s Affidavits which has not already been addressed in his evidence in chief no later than close of business on 7 October 2016 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.

13. The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.

14. Direct each party to file a Case Outline directly by email to my Associate no later than close of business 21 October 2016, such Case Outline to incorporate:

    (a)The material that is relied upon by that party, being one Affidavit per witness together with any Affidavit in reply;

    (b)The material from which tender is to be made in that parties case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;

    (c)A chronology of events;

    (d)Statement of agreed facts together with a list of findings of fact which that party suggests are relevant to support the relief they seek and which the Court will be invited to make.

15. Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.

16. Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).

17. In the event that the matter is resolved or in the event that either the above filing directions are not fully complied with by the dates fixed and/or the matter will not be able to proceed or be contained within the allocated hearing time, then the parties are to forthwith relist the proceedings on 7 days’ notice in accordance with Federal Circuit Court protocols, so that appropriate Orders can be made to either ensure that the matter proceeds within the time allocated or vacate the hearing dates and make such further directions as necessary.

18. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 2270 of 2010

MR HOBAN

Applicant

And

MS HERBERT

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve parties who are unable to agree on anything.  They are, sadly, the parents of two children. I express it as sadness because their lack of agreement will impact negatively upon their children on an ongoing basis.

2. The Applicant is the children’s father. The Respondent the children’s mother. 

3. The two children, the subject of the proceedings, are young X, born (omitted) 2006 (and thus nine years of age) and Y, born (omitted) 2008, (seven years of age).

4. A Family Report was completed in this matter some months ago. The Family Report is rapidly ageing. That arises in circumstances whereby upon release of the Family Report the parties have sought adjournment to enable them to seek to “continue discussion with a view to resolving issues”. They have resolved nothing and it is nine months wasted. 

5. By Orders made by consent in June 2014 the parties were ordered to attend a supervised contact service. Whatever has or has not transpired, and neither party is able to put material before the Court that clarifies the difficulties, that time has not commenced. As a consequence these children have, for the entirety of these proceedings, which have been on foot now for well over 18 months, had little time with their father. The only time that they have spent with their father since the proceedings have been on foot would appear to be, at most, four brief periods of an hour to an hour and a half at a time, each period occurring at a public place or in the presence of somebody in the position of supervisor. That compels attention to the curious issue as to the basis upon which supervision is suggested as necessary. I will return to that issue shortly. 

Material considered in dealing with the proceedings today

1. I have considered the Affidavits of each of the parties. Each party has filed, quite recently, an Affidavit in support of their Interim position. 

2. The father’s Affidavit was sworn or affirmed 8 October 2015, the mother’s this morning. How either anticipates that due process is afforded to the other in those circumstances is yet another curious aspect of the matter.

3. In addition I have read the Application in a Case and the Response thereto filed respectively on 10 February 2015 and 4 May 2015, together with the Notice of Risk filed by the father. The mother has failed to file a Notice of Risk and on that basis one might presume that she does not raise any issue of risk for if she did the filing of a Notice is mandated by section 67ZBA of the Family Law Act 1975.

4. In addition, I have read the father’s Initiating Application filed 12 March 2014 and the mother’s Response filed 10 June 2014 together with the Family Report dated 10 December 2014. The Family Report was released to the parties by Order dated 16 December 2014.

5. The Report contains a number of recommendations, including a recommendation that time between the children and their father occur for a period of two hours each weekend under supervision or in a public place for, say, two months before building up over time to include overnight periods and half of school holidays.

6. The children were interviewed as part of that Report. The children’s interviews are set out at paragraph 23 onwards as regards X and paragraph 26 onwards as regards Y. That reported of the children suggests, consistent with the evidence of the parties, some lack of familiarity with their father. 

7. X is described as anxious and not particularly cooperative. She admits at paragraph 24, a fear that her father would not return her should she spend time with him. That is a fear articulated also by the mother. When told that she could see her father with some certainty that she would be returned she is described as “seemingly relieved”. She confirmed with the Report writer that her anxiety regarding non return by her father stems from the father having shown her a home and telling her that he would like her to live with him there. If that has in fact occurred, and it need not be determined by me today, it is ill-advised and unnecessary.

8. When the child met with her father, having at that point in time not having seen him, it would seem, for well over 12 months she allowed her father to kiss her and cuddle her and she sat on his lap for most of the session. She was engaged in various interactions with her father and did not appear particularly anxious in her engagement with him.  She was, however, somewhat resistant and unresponsive, particularly when he sought to be affectionate with her.

9. Y, the younger of the two children, is also described as quiet, although more animated than her elder sister. She stated that she was unaware of why she was attending the Report interview, expressed some apprehension at spending time with her father, and explained that her elder sister had told her that her father had cobras in his yard.

10. She is reported as being open to the idea of spending time with her father, although she indicated that she called her mother’s new partner “dad” but responded positively to the idea of seeing her father for observations later in the day. She is also described as being amused with her father, engaging with him, and whilst she is still somewhat resistant she is far more emotionally engaged with her father than her sister. 

11. At paragraph 29 both parties are described by the Report writer as, “open to gradually reintroducing the children to their father, there is some chance that they will be able to come to an agreement”. That optimism is misplaced.

12. The father’s proposal, by his Application in the Case, is that he spend limited periods of time with the children for the next two months with a person present. Presumably that person would be present for the purpose of supervision, although absent risk articulated by these parties supervision would appear to be to abate the mother’s concerns, whatever they may be and whether founded in reality or not, rather than to achieve any other purpose. The father then seeks to spend time with the children each Saturday from 11:00am until 5:00pm with changeovers to occur at a public place agreed between the parties. These parties do not agree on anything, thus an Order for anything to occur “by agreement” is meaningless.

13. The mother by her Response to the Application in a Case proposes that there would be time each alternate week for two hours to occur at a supervised contact service and for that to continue for six months before time would then occur on Sundays from 11:00am until 5:00pm, again, supervised. The supervisor that is proposed by the mother for time away from a contact centre is unknown.

14. As previously indicated, in June 2014 Orders were made for these parties to engage with the (omitted) Contact Service. That is 15 months ago. Each asserts that they have “done everything necessary” for that time to proceed and yet it has not proceeded. That may be consistent with that which is shown on the website of the Australian Children’s Contact Service Association suggesting that a 12 to 15 month delay awaits those who seek to use subsidised service and six to 12 months for those who are prepared to pay. That is a state of affairs that is entirely inappropriate, one would think, in a first world country focused upon the best interests of the child as the paramount consideration, being Australia’s obligation as a signatory to the International Convention on the Rights of the Child and that Convention being incorporated into domestic law by incorporation as objects of the Family Law Act 1975. 

15. The matter has been stood in the list for some time today to allow these parties, both of whom have lawyers, to seek to achieve a resolution of any issue. None have been resolved. As Robert Louis Stevenson had opined many centuries ago, “compromise is the best and cheapest lawyer”, yet these parties do not choose to compromise. They prefer to remain in heated opposition. Perhaps they are far too aware of advertising for motor vehicles such as that advertised by Mazda, “We compromise all the time. Imagine if we didn’t have to.” These parties seem to have taken that on board to full effect. They refuse to compromise on anything. Similarly, Audi advertise their vehicles under the banner, “Compromise should never be an option.” These parties have taken that on board completely and reject compromise.

16. In any event they have determined for themselves that their right to “access to justice” in an under resourced Court system stretched to breaking point with the “assistance” of their Legal Aid funded lawyers involves the Court making each and every decision for them.

17. To begin with it is curious that it is suggested that supervision is needed at all. The only rational basis that can be inferred for supervision is the significant absence of time between the children and their father since the separation of these parties which was some few years ago. The mother asserts that the parties separated in November 2008, thus seven years ago. On the basis of these children’s ages they were quite tiny when their parents separated and would have little, if any, knowledge of their father when he was reintroduced into their lives more recently.

18. The mother asserts that following separation it was suggested to her that she “obtain an AVO” but none was obtained. The basis for such advice to the mother and the circumstances then presented are not before the Court. The mother suggests that about two months after separation (i.e., approximately January 2009) the father came back to visit the children and stayed at the mother’s home for two nights. The father sought to take the children away from the mother’s presence and the mother opines, “I still refused as I was scared for my safety.” No evidence is led as to what facts or circumstances founded or contributed to the mother’s “fear”. After 2 days the father then returned to or moved to live in (omitted) where he has commenced a new marriage. He would appear to have some relatives there. 

19. The father has more recently returned from (omitted) to live in the (omitted) Sydney region. The mother describes that before returning to Sydney the father would come to see the children no more than every six months or so and their visits with him would be very brief. The infrequency of visits, the mother would suggest, was as a consequence of the father’s lack of interest. The father would suggest visits were infrequent as the mother would not allow him to see the children other than in her presence or the presence of others whom she considered “appropriate”. 

20. By late 2012 when the father returned to Sydney there had been precious little time spent between the father and the children. Time would appear to have then been more vigorously pursued by the father following his return to Sydney. Notwithstanding the vigour of that pursuit, there has continued to be precious little time between the children and their father.

21. The parties attended Family Dispute Resolution. They were unable to agree on a single thing. 

22. The father is suggested to have made certain threats to the maternal grandmother at some point, although the evidence before the Court is in such form as to be offensive of the Evidence Act 1995 and I place no weight upon it. In any event, some months after the threat which the father is suggested to have uttered to the maternal grandmother an Apprehended Domestic Violence Order (ADVO) was obtained by Police on the mother’s behalf not the grandmother’s. The facts and circumstances relied upon in seeking that Order are not before the Court.

23. It is made clear that at the time of the ADVO the father spend some little time with the children, an hour and a half, at the home of a maternal relative. Thereafter, the mother suggests that the girls were somewhat upset and unsettled, particularly as the father had raised with them that they had a baby sibling from his new relationship. Why this is alleged to have upset the children is not expressed. 

24. The time that the father has spent with the children since then has been frugal. It would seem that between late 2013 and mid-2015 no time occurred. Some limited visits were then arranged between the parties through their attorneys. Those visits have occurred at a McDonald’s restaurant for an hour to an hour and a half at a time. It is not suggested anything untoward occurred during those visits when the father would appear to have attended with his new wife and possibly child. At all visits the mother has been present in or about the venue.

1. The father suggests that during these visits the children have given him gifts, interacted warmly with him, written various notes in a notebook, including, “we love you”, and such comments.

2. The mother asserts that following the visits the children have been upset and that one of the children has written a note whilst at scouts or girl guides, “I don’t want to see Mr Hoban [the father] anymore”.

3. What is curious is that the parties suggest arrangements which are not dissimilar and yet they cannot find any compromise whatsoever. What is even more curious is the failure of the mother to articulate any risk.  The best that can be ascertained is two-fold:

   a)Firstly, that the children’s relationship with the father has been dramatically disrupted; and

   b)Secondly, the mother has a concern that the father will depart with the children and not return them.

4. Orders will be made by this Court and should either party fail to comply with them and be found to have failed to comply without reasonable excuse, consequences will flow particularly if an Application subject to the provisions of Division 13A is brought by either party and successfully prosecuted. For the father the consequence would be, should he fail to return the children in accordance with any Order the Court may make, that his time would inevitably be suspended and he would return to not seeing the children.

5. Both parties agree that the children have some desire, limited or otherwise, to interact with their father. The children know he is their father. To the extent that they suggest that they are uncomfortable and concerned that they will not be returned that would appear to reflect the mother’s anxieties. I do not find as a fact that it is so but certainly there is a confluence between the two. There is nothing in the evidence to suggest the father has ever planned to remove the children, threatened to remove them or has, in fact, removed them.

6. The children’s best interests are the paramount consideration. Section 60CA of the Act makes that clear. The extent to which either party may have turned their mind to the children’s best interests is, regrettably, unclear. I must commence from that point and on that basis however.

7. I must then have regard to the objects and principles in section 60B of the Act. The Court must make Orders that ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and that the children are protected from physical or psychological harm as a consequence of exposure of abuse, neglect or family violence. There is no evidence whatsoever that these children require protection from physical or psychological harm on any basis at all let alone as a consequence of exposure of abuse, neglect or family violence.

8. The Court hears and determines proceedings based on the evidence the parties file. The evidence presented is absent any evidence of risk or basis for supervision.

9. The children have a curiosity for a relationship and, albeit in its very early stages, they have a relationship with their father. It has not been practised, or practised in any meaningful way, for the entire period that these proceedings have been on foot and notwithstanding that each of the parents warrants to the Court that they desire that there be a relationship.

10. The mother by her Response proposes on a final basis, no doubt subject to the condition precedent of time having been resumed and recommenced with the father in a safe and appropriate fashion, that the children would spend time with their father each alternate weekend for the day on Saturday together with a continuation of similar, albeit overnight periods, during school holidays. The father by his Initiating Application seeks far more abundant periods.

11. The children having a meaningful involvement with their father cannot be achieved through their continuing to languish on a waiting list at a contact centre. If risk sufficient to warrant or require supervision for the children’s protection were required then that delay would not matter and I would not interfere. However, there is simply nothing presented in the evidence that suggests any risk, unacceptable or otherwise, to the children. Why, in those circumstances the father and those whom he instructs, provided consent to supervision some 15 months ago, with the delay that has followed creating disadvantage to the father and depriving these children of the opportunity of a relationship with their father is inexplicable.

12. It is not suggested these children have ever been exposed to physical or psychological harm by their father, whether through their abuse or that of their mother or any other person in their presence. It is not suggested that the children have been the victims of or exposed to family violence or neglect. There is a startling and glaring absence of any such evidence. 

13. It may be the father that has substantially contributed to delay, although certainly since these proceedings were commenced in March 2014 the father has sought to interact with these children. 

14. Neither party, nor their attorneys, would appear to have done anything to achieving the outcome which their respective Application and Response suggest is in the children’s best interests. 

15. The objects provide that the Court must make Orders that will see children receiving adequate and proper parenting. There is nothing in the evidence to suggest that they do not, or will not, from either parent. 

16. The objects provide that parents should fulfil their duties and meet their responsibilities. In that regard I turn to the principles in section 60B(2) of the Act. They establish certain rights for these children. They are not absolute rights as they are subject to the caveat that the Court must be satisfied that it would not be contrary to the children’s best interests for those rights to be practiced.

17. Children have a right to know and be cared for by both their parents and to spend time and communicate on a regular basis with both of their parents. That is not a right that these parties have fulfilled.

18. The objects and principles would support an immediate commencement of frequent and regular unsupervised time with their father. 

19. I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and if it does apply determine whether it is rebutted. I am satisfied, these being Interim proceedings and the evidence being deficient at this point, that the best that I can do is to apply sub-section (3). I am not satisfied that the evidence available assists me in either determining the application or rebuttal of the presumption and thus I do not propose that it will apply.

20. The parties will each have parental responsibility at such times as the children are in their care and for the reasons that will be discussed by reference to section 60CC(2) of the Act.

21. In turning to section 60CC of the Act I must commence with the primary considerations being the benefit to the children of a meaningful relationship with both parents and the need to protect children from physical or psychological harm through exposure of abuse, neglect or family violence. The latter consideration is prioritised over the former by sub-section (2A).

22. There is simply no evidence that there is a need to protect these children from physical or psychological harm, thus I am left with the primary consideration of the benefit to the children of having a meaningful relationship with both parents.

23. These children do not presently have a meaningful relationship with their father.  For that to occur, a great many things must be present, not only time in which to practice the relationship. The father must demonstrate his capacity, the children must be reassured by both parents through both word and action that they are safe and secure. 

24. A meaningful relationship cannot even be contemplated without time in which to practice it. That is something that these children have been deprived of by their parents, the very people seized with the responsibility for ensuring that their children’s rights are met. The benefit, thus, can commence from this point. 

25. There is nothing in the Family Report, it being part of the untested evidence and nothing higher, which would suggest that these children have a degree of anxiety with respect to their relationship with their father which is significant nor any other apprehension which could not be addressed through mutual support of the parents and through the practice of frugal periods of time which would occur prior to the final hearing of these proceedings. That hearing itself is some considerable distance away. The Family Report will now, inevitably and due to the delay of these parties in seeking but failing to utilise to any good advantage the time they sought for negotiation, require updating. That will be a further cost to the Court and the taxpayers of Australia generated in this instance by the inability of these parents, seized with responsibility for the day to day care of their children and the enlivenment of practice of their rights, including a right to a relationship with both parents, to make genuine or child focused effort to resolve their dispute. 

26. The primary consideration supports relief as sought by, or similar to that sought, by the father. 

Additional considerations

Views

1. The children are suggested by the Family Report to express some reluctance, indeed apprehension, regarding an increase in time with their father, or his reintroduction into their life. It would seem to be largely based around fears that have been generated for them and connected with circumstances which no longer apply, (i.e., the father being less than committed to the relationship and living some significant distance away).

2. I am not satisfied that any significant weight could be attached to that which the Family Report opines as regards the children’s views nor that which the parties opine within their material. The evidence would suggest that these children are influenced by each of their parents whilst they are with them. I would expect nothing more than that the children would demonstrate negativity in relation to their father whilst in the mother’s care and positivity whilst with the father.

Nature of the children’s relationship with each parent and other persons

1. Nothing is known of the children’s relationship with either parent of any great depth. The children have a primary relationship and, no doubt, attachment with their mother. They have a very fractured and developing relationship with their father.

The extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time to communicate with the children

1. The father is criticised on this point. The father is critical of the mother for interfering. Each, perhaps, has some merit in their criticism, however, it does not assist in a prospective determination.

2. These children have a right to a relationship. There is nothing suggested that demonstrates any concern as to that relationship occurring and certainly nothing which would suggest risk to these children as a consequence of that relationship. In those circumstances it is unacceptable and inexplicable that the parties have not been able to come to some compromise, particularly with the assistance of their attorneys. 

3. Abraham Lincoln had opined more than 150 years ago, “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough”. What advice has been given to these parents is not known and need not be. It is privileged. 

4. Assuming advice has been given to compromise, to engage in interests based rather than positional negotiation focused upon the children’s best interest, I accept that resolution is impossible if the parties will not accept advice or if they are fixed in their positions and refuse to compromise. The failure of these parents to compromise is something which has caused significant disadvantage to these children.

Financial support

1. There is no evidence with respect to the father’s Child Support payments or the extent to which either parent meets their obligation to maintain the children. 

Effect of change

1. The effect of change upon these children is positive as regards spending time with their father. What is sought is brief, albeit frequent, non-overnight periods of time. Six hours at a time to be precise. There is nothing to suggest that these children cannot cope with that or to suggest that it would not benefit them.

Practical difficulty and expense

1. I incorporate herein a consideration of section 65DAA(5).

2. These parties live remarkably close to each other being the (omitted) and (omitted) areas respectively. They are about 10 kilometres apart and a very short trip by road or public transport. 

3. The parents’ capacity to communicate and resolve difficulties is entirely problematic. That is so notwithstanding that Orders have been made for them to attend Family Counselling services. The father, at least, has given clear evidence that he has attended. However, it takes each of these parents having a commonality of view and purpose to be able to agree. Clearly they cannot. The mother will be required to attend before Final Hearing to demonstrate compliance with the Order made and, more importantly, hopefully achieve some support, education and assistance so that future communication and co-operation might improve.

4. The impact upon these children of an arrangement of time being put into place for the first time since their parents’ separation that allows them to have each parent involved in their lives is beneficial.

The capacity of each parent to meet the children’s emotional and intellectual needs

1. There is no real evidence to address this factor and each is highly critical of the other. I need not address that evidence. It is not helpful to the decision to be made.

Maturity, sex, lifestyle and background of the children

1. These are young children who have a right, consistent with the International Convention and the objects and principles, to a relationship with each of their parents and having each parent being involved in their lives.

2. I am satisfied this factor supports the father’s relief, particularly as there is simply no evidence whatsoever to suggest past harm to the children or future risk. 

Aboriginality

1. Aboriginality is not relevant.

Parental attitude

1. The attitude of the parents is, again, highly criticised by each and of the other. I need not address the issue beyond that discussed above. 

Family violence

1. There are broad and non-specific allegations raised with respect to family violence. They assert that there has been family violence but with no particularisation at all. Certainly there is an ADVO but without evidence as to the basis for the Order which may, for example, have been made by consent, the existence of the Order at some point in time proves nothing other than the mere existence of the Order.

2. The best that is raised is the suggested utterance of a threat by the father to a maternal relative some three years ago. It is denied. It would not be sufficient to deny these children a relationship with their father.

Family violence orders

1. There are none, although there has been an Order in recent past. It has expired.

Whether it is preferable to make the order that will least likely lead to future proceedings

1. This Interim determination will last these parties until their matter reaches a Final Hearing. That will be close to 12 months away. They will consume further resources and require an updated report. They will not consume further resources in any further Interim Hearing.  These parties have now had the benefit of two. The Orders made in June 2014, whether through the inability of the contact centre with its absence of resources to accommodate these parties or because one or both parties failed to do what was required of them, have achieved nothing. The time since those Orders were made (15 months) has been needlessly and pointlessly wasted by these parents and their attorneys. This time will be the last the parties receive before Final Hearing. 

Conclusion

1. I am not satisfied that there is any need whatsoever for supervision. I propose to make Orders that will see the parties effecting changeovers through the supervised contact service. Again, the website of the Contact Centre Association suggests that there is no real delay, one to two weeks, before these parties can engage in changeovers. One would hope the times that would be ordered, or such times as the centre can accommodate, might be able to commence within that time period. The parties have not made inquiry. The Court has been left to do it on their behalf using the Association website. Accordingly, if there are difficulties the parties will simply need to resolve them. The matter will not be returning.

2. I am not satisfied there need be any further period of supervision. The Family Report, albeit untested, recommends that there should be some brief and limited period of supervision before unsupervised time commences. There have been some recent supervised periods. That will suffice, particularly as there is no evidence suggesting any basis for supervision nor has there been any such evidence led at any time whilst the proceedings have been on foot. 

3. Accordingly, and for the above reasons I make Orders as follows (see Orders).

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  14 January 2016