HOOPER & DYSON

[2016] FCCA 2328

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOOPER & DYSON [2016] FCCA 2328

Catchwords:
FAMILY LAW – Interim hearing – contested residence – best interests of children.

Legislation:

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

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Salah & Salah [2016] FamCAFC 100

Applicant: MR HOOPER

Respondent: MS DYSON

File Number: PAC 660 of 2016

Judgment of: Judge Newbrun

Hearing date: 3 August 2016

Date of Last Submission: 3 August 2016

Delivered at: Parramatta

Delivered on: 30 September 2016

REPRESENTATION

Solicitors for the Applicant: Bell Lawyers

Counsel for the Respondent: Ms Dart

Solicitors for the Respondent: Pigdon Norgate Family Lawyers

ORDERS, PENDING FURTHER ORDER

1. The mother and the father shall have equal shared parental responsibility for the children V born (omitted) 2004, W born (omitted) 2007, X born (omitted) 2008, Y born (omitted) 2010 and Z (“the children”).

2. The children shall live with the mother.

3. The child V shall spend time with the father in accordance with her wishes.

4. The children W, X, Y and Z shall spend time with the father:

   (a)on each weekend where the father is not working, from Friday at 5:00pm until Sunday at 3:00pm; and

   (b)at all other times as agreed between the parties.

5. For the purpose of facilitating the children’s time with the father pursuant to order 4 above, the father shall provide not less than four (4) weeks’ notice to the mother of the weekends he proposes to exercise such time.

6. The Father shall have telephone or Skype communications with the children each Sunday, Tuesday and Thursday between 7:00pm and 7:30pm, and the mother shall ensure that the father has privacy during such calls.

7. For the purpose of the children spending time with the father pursuant to order 4 above, changeover shall occur at McDonalds at (omitted), or at such other places as the parties may agree to in writing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 660 of 2016

MR HOOPER

Applicant

And

MS DYSON

Respondent

REASONS FOR JUDGMENT

1. This was an interim hearing relating to the children of the parties, V born (omitted) 2004, W born (omitted) 2007, X born (omitted) 2008, Y born (omitted) 2010, and Z born (omitted) 2012 (“the children”). In these reasons a reference to “the children” is a reference to the four (4) sons of the parties, and excludes their daughter V.

2. The parties commenced cohabitation in 1998 when they married. The parties separated on 23 June 2015.

3. On 23 December 2015 the mother, without the consent of the father, relocated with the children and V from (omitted) to (omitted). The father remains living in (omitted), and works as an (occupation omitted). The mother works as a (occupation omitted). She is employed by (employer omitted) in (omitted). It is common ground that the drive time between (omitted) and (omitted) is about four (4) hours.

4. The father’s Initiating Application was filed on 15 February 2016.

5. The father seeks interim orders, “in circumstances where the evidence of the mother is that she does not intend to return to the (omitted) area to live”, inter-alia:

   a)that the children live with him;

   b)that the children spend time with the mother each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday, provided that the mother does not remove the children from the (omitted) local government area; and

   c)that V spend time with the father in accordance with her wishes.

   The Court notes that at the interim hearing, the father, through his solicitor, informed the Court that he was content for the children to live with the mother in (omitted) and for the children to spend substantial and significant time with him.

6. The father’s Case Outline, at page 3, states, inter-alia:

   The father makes a proposal whereby in the event that the children live in (omitted) they would continue to live with the mother. It is only in the event that the mother were to remain in (omitted) that he would propose any change to the arrangements.

7. The mother seeks interim orders, inter-alia:

   a)that the children live with the mother;

   b)that the children spend time with the father during school terms each alternate weekend from after school on Friday until 3:00pm on Sunday; and

   c)that the children spend time with the father during each school holiday period as agreed, and failing agreement for the half of each school holiday period in each year.

8. Both parties seek an equal shared parental responsibility parenting order for the children.

9. The mother’s evidence is that it is her desire, irrespective of the interim orders made by the Court, to remain living in (omitted) (see paragraph 83 of her affidavit filed 6 May 2016).

10. The father, in the event that the Court made interim orders providing for the children to live with the mother in (omitted), proposed certain parenting orders set out in Exhibit A. These proposed orders provide, inter-alia, that the children spend time with the father on each weekend when the father is not working, from Friday at 5:00pm until Sunday at 3:00pm, and at such other times as agreed between the parties. The mother, through her Counsel, did not wish to be heard in opposition to the proposed parenting orders in Exhibit A.

Material Relied upon by the Parties

1. The Applicant father relied upon the following documents:

   a)Initiating Application filed 15 February 2016; and

   b)Affidavits of the father filed 15 February 2016 and 27 July 2016.

2. The Respondent mother relied upon the following documents:

   a)Response filed 6 May 2016;

   b)Notice of Risk filed 6 May 2016; and

   c)Affidavits of the mother filed 6 May 2016 and 2 August 2016.

Agreed or Undisputed Relevant Facts

1. The mother states that during the parties’ relationship she was primarily responsible for the children and their day-to-day needs. She states that when the children were babies she was responsible for all of the care tasks. She states that when the children reached school age she continued to be primarily responsible for them.

2. The mother returned to part-time work in July 2014, having completed a (omitted) certificate. For the period from July 2014 to about June 2015, she worked as a (occupation omitted) for (employer omitted) and (employer omitted). She worked one (1) day per week for each company. At that time, the father assisted her with parenting and homemaking tasks, however the parties also employed a babysitter. This babysitter cared for the children when the parties were both at work, which was about two (2) days per week. The mother’s friends looked after the children from time to time, as did her parents.

3. On 23 June 2015, the father moved out of the former matrimonial home at (omitted) and moved into rented accommodation. The mother remained living at the former matrimonial home until she moved to (omitted) in November 2015. The children remained living in the former matrimonial home until 23 December 2015, at which time they moved to (omitted) to live with the mother.

4. On 14 August 2015, the parties attended mediation and reached an agreement. The agreement provided, inter-alia, that the children would continue to live with the mother, and that they would spend time with the father when he was not rostered on for work on certain specified days during certain specified months. Under the agreement the parties agreed to review their agreement on or before 1 December 2015.

5. The father became aware in about October 2015, that the mother wished to relocate with the children from the (omitted) area to the (omitted) area. He sought legal advice and his present solicitors wrote to the mother’s solicitors on 27 October 2015, 26 November 2015, and 22 December 2015, indicating that the father did not consent to any such proposed relocation.

6. In the father’s affidavit filed 15 February 2016, it is stated that he works at (employer omitted). He has a full-time position where he works four (4) 12 hour shifts and then has 5 days off (paragraph 31). It is stated that by reason of the father’s shift work there is no certainty that the father can be available to spend time with the children each alternate weekend (annexure E).

7. In the father’s affidavit filed 27 July 2016, he states that his work involves him working on a number of nights and a number of days within a nine (9) day cycle, followed by a series of consecutive days off. He states that during that cycle, he generally has about one (1) full weekend off per month.

8. The father states that in the event that the children live with him in (omitted), his employer has indicated to him that they would “support” an application that his work change from full-time to part-time work. The father states that this would involve him working two (2) to three (3) days per week on sequential days. He states that in the event that his work roster was to change, this would significantly reduce the impact that his work would have upon his capacity to care for the children on a full-time basis. He states that in the event that he is unavailable, he anticipates that he will be able to rely upon support of other members of his family (including the mother’s parents) to assist him in the care of the children. Finally, he states that he has commenced a new relationship and his current partner ‘Ms F lives in the (omitted) area, and would also be able to assist him in the care of the children when required.

9. The father states that his parents, who live at (omitted) are able to assist him in the care of the children, if necessary.

10. The Court notes the agreement or parenting plan reached between the parties on 14 August 2015 (at a time when, the Court notes, both parties were living in (omitted)) which provided, inter-alia, for the children to continue to live with the mother, and that the children spend time with the father “when he is not rostered on for work” for specific times in August, September, October, and November 2015, including a graduating regime of overnight time each week with the father.

11. Since the separation of the parties in June 2015, and despite the terms of the above agreement or parenting plan, the father’s time with the children has been erratic.

12. The father states that despite the prior agreement made at mediation, the children’s time to be spent with the father under the agreement was not followed, largely because the parties were doing shift work and were not always available at the time set out in the agreement. Rather, the parties would communicate via email or text message in order to organise the father’s time with the children.

13. Since July 2015, and up to early February 2016, the children spent limited time with the father during each month (see paragraph 19 of the father’s affidavit filed 15 February 2016). For example, in September 2015, he only spent overnight time with the children from 18 to 20 September, and overnight on 24 September, and during November 2015 he only had day visits with the children. The Court notes that this erratic time spent by the father with the children occurred during the second half of 2015 when both parties were living in (omitted).

14. The father’s last time spent with the child V was on 17 December 2015.

15. Since at least early January 2016, the mother has been assisted by female nannies to assist in her care of the children.

16. The mother states that following the separation, the father contacted the wife of her boss at (employer omitted). She states that in about June 2015, her boss telephoned her and told her [the mother] that the father had telephoned his wife and told her that he and the mother were having an affair. The mother states that she was not offered any more shifts with (employer omitted) after that incident.

17. The mother states that in early October 2015, her sister’s two (2) year old daughter died after having a seizure. The mother states that she wanted to be able to support her sister and have the support of her family in (omitted), so she started to carefully consider whether moving to (omitted) was in the children’s best interests, as well as herself. In October 2015 the mother was offered a full-time position with (employer omitted) in (omitted) and the mother accepted the position. She commenced employment with (employer omitted) on 9 November 2015.

18. When the mother moved to (omitted), a babysitter, ‘Ms K, moved into the (omitted) property to care for the children. The father spent time with the children for three (3) nights out of every nine (9) nights. The mother commuted back and forth between (omitted) and (omitted). She was able to return to (omitted) about once a week for one (1) day at a time. At the end of the school year, the father spent one (1) week with the children, and on 23 December 2015 the children and the mother moved into rented accommodation in (omitted).

19. The child V, date of birth (omitted) 2004, attends boarding school at the (omitted) School, (omitted) and is in year seven (7). This child, when not at boarding school, lives with the mother in (omitted). The mother states that this child is doing well at school and receiving good marks. She obtained a (omitted) scholarship to attend this college, (omitted). The next three (3) eldest children attend the (omitted) School near (omitted). W is in year three (3), X is in year two (2), and Y is in kindergarten. The mother states that all three (3) boys are doing well at school. The mother states that when living in (omitted), the children were involved in (hobby omitted) and (hobby omitted), and they also did (hobby omitted) and attended church as a family. The mother states that the children have been able to continue these activities in (omitted). Two (2) of the boys also attend a (hobby omitted) at (omitted) every Monday afternoon.

20. In the father’s affidavit filed 15 February 2016, he states that the child Z, aged four (4) years, suffers from bilateral dysplastic kidneys, and he is on a list awaiting transplant. He also suffers from eosinophilic oesophagitis, being an allergy to the oesophagus caused by certain foods, resulting in the child needing to take a prescription only formula. He also suffers from a condition known as 22Q, a dropping of the 22nd chromosome, which causes speech difficulties and learning difficulties and it also affects his growth.

21. In the father’s affidavit filed 15 February 2016, he states that this child has special needs and requires special funding and care.

22. In the mother’s affidavit filed 6 May 2016, she states that this child “is non-verbal, and therefore does not speak”. She refers to the child’s kidney condition, stating that he has renal failure and will need a kidney transplant in the future, however it is not yet known when. She refers to the child’s allergy to many foods and drinks, and that he is on a strict diet; for example, the child cannot drink cow’s milk, and instead must drink a special formula. The child is under the care of a paediatrician at (omitted) Hospital in Sydney. The mother states that throughout the relationship, she has been responsible for attending to all of this child’s medical appointments, and attending toward his special needs, including his diet.

23. The mother states that the (omitted) Region was the first area to introduce the National Disability Insurance Scheme (NDIS). She states that the (omitted) Preschool has a relationship with the Early Childhood Scheme of the NDIS, which provides multidisciplinary assistance to disabled children and their families. The child’s access to the NDIS has been organised through Early Link in (omitted) and he has been approved for a $12,000 multidisciplinary package. Early Link will now organise for the relevant specialist to attend the child’s preschool as and when required. The mother states that she is not aware of the progression of the NDIS rollout in the (omitted) area, however she understands that it has not as far progressed as the (omitted) Region.

24. The child Z attends (omitted) Preschool. He has been provided with a (omitted) three (3) days per week by the (omitted), who attend with this child one-on-one each day he is at preschool. This child attends upon a GP in (omitted). The mother has been informed that there is a paediatrician at (omitted) Hospital who will be suitable for the child. The child continues to attend upon a doctor at (omitted) Hospital in relation to his kidney disorder, about once every six (6) months.

25. Many of the mother’s family members live in the (omitted) area. Her sister and her husband and family, including two (2) children aged nine (9) and six (6), lives in (omitted). The mother states that the children spent a lot of time with their cousins. Further, the mother’s cousin lives in (omitted) and her aunts and uncles living in (omitted) and (omitted), respectively. The children have a close relationship with the mother’s family.

26. The mother is employed full-time as a (occupation omitted) for (employer omitted). She earns a base salary of $80,000 per annum, together with overtime and shift work penalties. From her income she pays for preschool fees, school fees, (hobbies omitted) and the like. The child support the mother receives from the father goes towards grocery expenses for the children and some rent.

27. In the mother’s affidavit filed 2 August 2016, she annexes her timesheets from her employer (employer omitted) for the period from 1 May 2016 to 23 July 2016. The mother states that she works anywhere between 22 hours and 45 hours per week. She states that she has been able to organise her employment so that she is working largely when the children are asleep or at school.

28. The mother lives in a large four (4) bedroom house in (omitted). The nearest major hospital is (omitted) Hospital, which is about a 30 minute drive from their home. The father lives in a three (3) bedroom home in (omitted) and the boys share a room at that house when they spend time with the father.

29. In the father’s affidavit filed 27 July 2016, at paragraph 6, he refers to the consent interim parenting orders made on 6 May 2016. He states that those orders provided for the father to spend three (3) weekends with the children as there were only three (3) weekends during the three (3) month period between 6 May 2016 and 3 August 2016 (the date of the appointed interim hearing) when the father was not working.

30. In the three (3) month period since 6 May 2016 to the date of the interim hearing on 3 August 2016, the children spent 10 nights with the father.

Submissions of the Parties

1. The Court has noted the submissions of the parties in their respective Case Outlines and in their oral submissions to the Court at the interim hearing.

Legal principles

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

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

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

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

3. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

5. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

6. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

7. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

8. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one (1) or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - Meaningful relationship primary consideration

1. The present nature of the child V’s relationship with the father is not clear. This child has not spent time with the father since late December 2015, and is presently not expressing any desire to spend time with him.

2. The other children have a meaningful relationship with each parent and would benefit from a continuance of those relationships.

3. The Court notes the mother’s proposal that the children live with her in (omitted), and her preparedness to adopt the father’s backup proposals (in the event that the mother and children live in the (omitted) area and the father lives in the (omitted) area), set out in Exhibit A, relating to the father spending time with the children: “a) on each weekend where the father is not working from Friday at 5:00pm until Sunday 3:00pm; and b) at such other times as agreed between the parties.”

4. Should the Court make these orders, the children’s meaningful relationship with the father might be detrimentally affected, in particular, by reason of the burden of travel time related to changeovers and its impact upon the children’s time with the father; the father would have to travel between the (omitted) and (omitted) and return.

5. However, the Court notes that despite the father only spending erratic time with the children during the second half of 2015, fairly modest time with the children from January to April 2016 (see paragraph 75 of the mother’s affidavit filed 6 May 2016), and some 10 nights in the three (3) months from 6 May 2016 to 3 August 2016, by reference to the content of the father’s affidavits relating to the positive time spent by the children with him post separation and in 2016, the children’s meaningful relationship with him appears to continue substantially unaffected.

6. Should the Court make an interim order that the children continue to live with the mother in (omitted) and spend time with the father in accordance with the father’s backup proposals in Exhibit A, the Court is of the view that it is likely that the children’s meaningful relationship with the father will continue. In this context, the Court notes the mother’s past and present willingness to facilitate the children spending time with the father since separation to date.

7. The court should note that it is not without relevance that during the second half of 2015, when the parties were both living in (omitted), the parties’ agreement or parenting plan, made in August 2015, could not be followed by the parties by reason of their shift work requirements, and the father, without fault on the mother’s part, could only spend erratic time with the children. To the father’s credit, despite his shift work requirements during this period, he managed to spend time with the children during each month of that period. Nevertheless, this historical reality relating to the father’s shift work requirements and its impact upon his ability to spend regular time with the children may well continue to exist, whether the children are living with the father in (omitted), or if he is spending time with the children pursuant to the terms of Exhibit A, whilst the children live with the mother in (omitted).

8. The Court notes the father’s evidence that his employer has indicated to him that “they would support an application” that his work change from full-time to part-time work, if the children were to live with him at (omitted), however his evidence in this regard does not enable the Court, at this interim stage, to predict the likelihood or otherwise of such an application being successful.

9. Turning to the father’s proposals, that, inter-alia, the children live with him in (omitted); that the children spend time with the mother ‘each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday provided that the mother does not remove the children from the (omitted) local government area’; and that the mother shall collect the children from the father’s home at the commencement of that time and shall return the children to the father’s home at the conclusion of her time; the Court is of the view, at this interim stage, if it accedes to these proposals of the father, there is a real risk that the children’s meaningful relationship with the mother might be detrimentally affected.

10. Historically, whilst noting the father’s own contributions towards the care of the children, including V, the mother has been, and continues to be, the primary carer of the children (and in this context it is not without relevance that on 14 August 2015 the parties agreed for the children to continue to live with the mother). In this context, the Court is mindful of the fact that that the mother too has shift work requirements which often impact upon her ability to spend time with the children during their waking hours, and the Court notes that she has engaged nannies to assist her in the care of children in (omitted). Nevertheless, the mother continues to be intimately involved in the children’s lives, including attending to their medical and other health professional treatment needs.

11. The Court gives significant weight to this “meaningful relationship” primary consideration.

Subsection (2b) - Need to protect primary consideration

1. The Court notes the recent decision of the Full Court of the Family Court of Australia in Salah & Salah [2016] FamCAFC 100 in relation to, inter alia, the Court dealing with competing allegations of family violence at interim parenting hearings.

2. The father does not assert that the children are at risk of harm in the mother’s care.

3. The mother, for her part, alleges that throughout the relationship, the father was physically and emotionally abusive towards her, and he was very controlling, particularly in respect of her employment and finances. She refers to, inter alia:

   a)in 1998 the father threatening her and himself with a knife;

   b)in 2007, when the mother was breastfeeding a child, the father throwing a torch at the mother’s face, breaking a tooth;

   c)in about 2008 the father holding the mother down on the floor of their bedroom with his hands tightly around the mother’s neck strangling her;

   d)in about 2012 the father dragging the mother by her hair around their home;

   e)throughout the relationship the father throwing things at the mother such as keys on multiple occasions; and

   f)the father intimidating the mother whilst verbally abusing her.

4. The mother, in her affidavit filed 6 May 2016, asserts that in 2005 she disclosed the father’s abuse to her GP, and her psychologist. She asserts that the father was prescribed antidepressants by this GP at that time. The mother states that she is concerned that the father has mental health issues.

5. The mother alleges that the eldest child V, now aged 12 years, has disclosed to the mother that the father was physically abusive towards her during the relationship. The mother asserts that this child told her that the father used to hit her. The mother asserts that in about April 2015, this child rang the mother when she was with the father, and was crying hysterically. The mother asserts that this child said to the mother at this time that she was in her room and she wanted to come home, and that the father was screaming at her. The mother asserts that she then heard the father enter the child’s room and yell at her. The mother asserts that since moving to (omitted), that this child has said to the mother, inter alia, that she doesn’t want to see the father. The mother asserts that this child is seeing a domestic violence counsellor in (omitted) which the mother organised. The mother also states that three (3) of the other children, W, X, and Y are also attending counselling in (omitted).

6. In the father’s affidavit filed 27 July 2016, he states that the child W, on the weekend of 12 June 2016, told the father, inter alia, “Dad I want you and mum to stop fighting, it makes me upset.” On the weekend of 9 July 2016, this child told the father, inter-alia, “I feel sad dad that you and mum are fighting … Why are you and mum fighting? It makes me sad dad …”

7. In the mother’s affidavit filed 2 August 2016, at paragraph 18, she states that the three (3) eldest boys continue to attend with their domestic violence counsellor, Ms J. A copy of a report of Ms J in relation to the counselling sessions is annexed to this affidavit. In the report, dated 23 July 2016, Ms J is stated to be an “Accredited Mental Health Social Worker, (omitted) member number: (omitted).” The report’s letterhead is stated as “(omitted), (omitted) and (omitted) Counselling & Psychological Services.” In the report, Ms J states, inter alia:

   W, X, and Y have been referred to me for counselling through Victim’s Services due witnessing ongoing domestic violence from their Father towards their Mother. They attended an initial appointment on the 17^th of March 2016. Since this time the boys have attended six sessions in total.

   It is my opinion that for effective psychological treatment to occur, a sense of safety needs to be ensured. Sometimes when a parent has been a source of threat or danger, to a parent or child, a child can become easily distressed by anything associated with these experiences. It can result in fear, anxiety and uncertainty. Since the boys have moved to (omitted) in New South Wales I am of the opinion that their sense of safety and security has improved allowing them over time to settle at home and school.

   The impact of the domestic violence on the children has included difficulties in a number of areas, such as hypervigilance, dysregulation, low self-esteem and poor coping. For healing to occur it is paramount that the boys feel safe, both emotionally and physically over a long period of time. This is particularly important given that their early experiences taught them that adults can be a source of threat. This sense of safety is most likely to occur through their primary attachment figure.

   Since moving to the area Ms Dyson has been able to access positive supports for all the children, including counselling and referring Y for a Paediatric assessment. The children appear to have now settled into their school and appear to be enjoying having access to many services and activities.

   Now that the boys are feeling safer and more secure it has also allowed therapy to work on building skills in emotional regulation, self-esteem and distress tolerance. This work needs to continue over an extended period of time to become consolidated and for treatment gains to be maintained.

   I am of the opinion that it is important for the children and the family as a whole to maintain their current supports. Furthermore, any drastic changes or upheavals are likely to cause significant psychological challenges for the boys and impact on their treatment gains.

8. The Court notes that the family violence allegations made by the mother are not addressed by the father in his later affidavit.

9. The Court notes the father’s Notice of Risk filed 15 February 2016, in which the father, inter-alia, denies that any child to whom the proceedings relate has been abused or is at risk of being abused, and he states there has not been family violence nor is there a risk of family violence by a party to the proceedings.

10. The Court notes that on pages 4 and 5 of the Case Outline of the father, under the “family violence” additional consideration, it is stated:

    The family violence allegations are not substantiated. The evidence given by a counsellor’s report as to a history of family violence is hearsay, untested and unsubstantiated.

11. The Court notes that in the father’s Case Outline, at page 3, under the “need to protect” primary consideration, it is asserted that the mother’s allegations against the father are “unsubstantiated, uncorroborated and denied.” It is further stated:

    To the extent that the mother does raise allegations against the father, it is noted that the allegations are for the most part very old and in the nine months since the parties separated the father has been seeing the children without incident.

12. The Court also takes into account the mother’s past and present willingness to facilitate the children spending time with the father since separation to date, and that the mother makes no allegation against the father of family violence directed towards the children during that time.

13. Again, the Court notes the mother’s preparedness to adopt the father’s backup proposals, Exhibit A (in the event that the mother and children live in the (omitted) area and the father lives in the (omitted) area), which provide for the children spending time with the father.

14. It is also mindful that the mother intends to remain in (omitted) should the Court make an order that the children live with the father in (omitted).

15. The Court has considered the chronological history of the family violence allegations made by the mother against the father.

16. The Court has noted the mother’s allegations of family violence against the father in respect to the child V, again, which allegations are not addressed in the father’s later affidavit. In this context, it is noted that the father gives no explanation as to the mother’s evidence that V does not wish to spend time with the father at present. The Court notes that this child is seeing a domestic violence counsellor in (omitted), which the mother organised through Victims of Crime. However, the Court notes that the father’s proposed interim order regarding V is that the father spend time with her in accordance with her wishes.

17. As to Ms J’s report, the Court notes that it is not clear from Ms J’s report as to the source of her initial statement in her report that the children witnessed ongoing domestic violence from the father towards the mother; for example, it is not set out in the report as to whether the children apparently witnessing domestic violence was communicated by the mother or the children. The Court also notes that it is difficult to clearly discern from the report how Ms J appears to causally link “the impact of the domestic violence on the children” with their alleged difficulties, including hypervigilance.

18. Nevertheless, at this interim stage, whilst noting the incompleteness in Ms J’s report, and that it remains untested, the Court does take into account the report, including her opinion that it is important for the children and the family as a whole to maintain their current supports; that any drastic changes or upheavals may cause psychological challenges for the children and impact on their treatment gains; and that Ms J’s therapy with W, X and Y needs to continue over an extended period of time to become consolidated and for treatment gains to be maintained.

1. In the circumstances, as discussed above, in relation to this “need to protect” primary consideration, the court is of the view, at this interim stage, that should the children spend time with the father in accordance with his backup proposals, Exhibit A, they will not be exposed to an unacceptable risk of family violence.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court has had regard to the father’s affidavit filed 27 July 2016 relating to his fairly recent conversations with some of the children wherein they told the father that they would like to see more of him and wanted the father to live closer to them.

2. The Court also notes the mother’s evidence, at paragraph 79 of her affidavit filed 6 May 2016, wherein she states, inter alia, that the children are happy to spend time with the father, however she observes that they are always very happy to be home with her and often tell her that they have missed being with her after they have spent time with the father.

3. The Court, whilst noting the fairly tender ages of the children, gives some weight to these views.

(b) Nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The father’s parents reside in (omitted). The mother’s parents, from the evidence, appear to live in (omitted). Inferentially, the children would appear to have positive relationships with the grandparents.

2. The mother also has extended family in the (omitted) region and the children have a close relationship with that family.

(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The Court refers to its discussion above under the “meaningful relationship” primary consideration, in relation to the parties’ respective shift work obligations and their impact upon spending time with the children.

2. Generally, within the parties’ historical work obligations, they have taken up such opportunities in relation to the children.

3(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother asserts that following the separation she was in receipt of family tax benefits which provided her about $300 per fortnight. She also obtained a child support assessment, pursuant to which the father was to pay her $700 per fortnight.

2. The mother asserts that because she was paying all rates and utilities at the former matrimonial home, as well as expenses associated with the care of the children, including school and preschool fees, and extracurricular activity fees, she decided that it would be more financially beneficial for the family if she obtained full-time employment. She asserts that the father told her that he would pay child support, but he would not pay anything else. The mother states that he earns a base salary.

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

1. The Court refers to its discussions above under the “meaningful relationship” and “need to protect” primary considerations.

3(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The Court refers to its discussion above under the “meaningful relationship” primary consideration.

2. With the parties residing in (omitted) and (omitted), those places being some four (4) hours’ drive time apart, there are practical difficulties which impact upon the time that the children can spend with each parent in relation to each party’s interim proposals.

3(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Subject to the Court’s discussion above under the “need to protect” primary consideration, both parties would appear to have such capacities, though it is noted that the mother has been the primary carer of the children historically and continues so to be.

3(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to the child Z’s disabilities referred to previously. It also refers to the supports that he has in the (omitted) area.

2. In the mother’s affidavit filed 2 August 2016, she annexes a report dated 22 July 2016 from Ms A, who is stated to hold a “Bachelor of Education (Early Childhood).” The report is on the letterhead “(omitted) Preschool” and is a report in relation to the child Z. The report states, inter alia:

   Z… started attending (omitted) Preschool 3 days a week on the 28^th January 2016. During this time we have learnt a great deal about Velo-cardio-facial Syndrome -22q11 deletion and the additional needs that accompany this.

   Z’s biggest obstacles so far are his inability to communicate, toileting and eating habits. We are working strongly with [him] on communication. All staff have now completed sign language training and we are currently teaching it to all children in our daily practices to help [him] be able to communicate with a lot more ease. This has been successful and [he] is using a lot more sign language throughout his day, and is able to communicate much more effectively with staff. We are also finding that [he] is trying to form some words and making sounds when using his sign language.

   …

   With regards to the foods [he] is eating - we are working extensively to develop his oral motor skills by encouraging him to eat crunchy foods such as apples and carrots and other similar foods, rather than his preferred hot chips, tinned spaghetti and cream biscuits. He has developed an interest in eating the whole foods which is a major step forward from his previous reliance on formula for nutrition.

   [He] receives an NDIS package which allows us to work closely with Early Links staff who have allocated [him] a speech therapist and an occupational therapist who visit [him] here at preschool. Working so closely with these experts has given us a wealth of knowledge on how to best cater for and develop [his] needs on a daily basis here at preschool. We also receive PDSP funding which is available state wide, which allows us to have a support teacher in the room from 9:30 until 2:30 allowing [him] that additional support he needs throughout the day.

   [He] has adapted to preschool life with ease, he is incredibly social, all the children really enjoy his company and he is never without a friend. [He] has formed strong attachment with his teachers and has no issues expressing how he feels with them. [His] lack of communication has not hindered his ability to let others know what he wants. From the time he started he has used gestures, and really been able to show using expression what he needs or wants. [He] is able to follow routine, limits and knows expectations here at preschool.

3. The Court notes this child’s significant disabilities, and in this context, also notes the mother’s responsibility and attention during the relationship and to date in relation to attending to this child’s special needs, including the provision for support for the child at his preschool and the gains that he has apparently made there to date.

4. The Court notes the father’s evidence (paragraph 34 of affidavit filed 15 February 2016) that should the children the return to live with him in (omitted), “… I expect we would need to find a new school for Z because of his special needs and the fact that he requires special funding and care.”  The father does not adduce any evidence as to the availability of such a school in (omitted) or its environs, or otherwise as to how this child’s special needs would be met if living with the father in (omitted).

5. The Court gives significant weight to this additional consideration in relation to the child Z.

3(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

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

1. Subject to the Court’s discussion above under the “need to protect” primary consideration, the parties’ attitude to the children and to their responsibilities of parenthood appear to have been sound.

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

1. The Court refers to its discussion above under the “need to protect” primary consideration.

3(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

3(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. This was an interim hearing, and it is not possible to meaningfully consider this additional consideration.

3(m) Any other fact or circumstance that the court thinks is relevant

1. The father is critical of the mother for having moved with the children and without his consent to (omitted). In this context, the Court refers to the mother’s evidence relating to her positive reasons for moving to (omitted). The evidence before the Court at this interim hearing suggests that since the separation of the parties, and after the mother’s move to (omitted), she has sought to facilitate the children’s time with the father.

2. The Court refers to the mother’s evidence relating to the establishment and nature of the children’s present lives in (omitted), and its discussion above under the “need to protect” primary consideration, including the evidence relating to the stability that the children’s present routines and health professional treatments are affording them whilst they continue to reside with the mother in (omitted).

3. In the mother’s affidavit filed 2 August 2016, she annexes her timesheets from her employer (employer omitted) for the period 1 May 2016 to 23 July 2016. The mother states that she works anywhere between 22 hours and 45 hours per week. She states that she has been able to organise her employment so that she is working largely when the children are asleep or at school.

4. From the Court’s perusal of the timesheets, it is apparent that the mother’s work commitments from time-to-time prevent her from being at home with the children during their waking hours. In this context, the Court notes that the mother, since moving to (omitted), has organised nannies to assist her in caring for the children.

5. The Court notes the Semester 1 School Reports for the three (3) eldest boys attending (omitted) School; the reports indicate those boys are progressing satisfactorily at this school.

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

1. Both parties seek an equal shared parental responsibility interim order in relation to the children, including V. Noting the disputation between the parties at this interim hearing, and in all the circumstances, the presumption of equal shared parental responsibility should not be displaced, and pending further order, the parties should have equal shared parental responsibility for the children.

2. By reason of the father’s residence in (omitted), and the mother’s residence in (omitted), and noting the mother’s intention to remain in (omitted) should the Court order that the children live with the father in (omitted), as well as the parties’ present respective work rosters and commitments, an equal time arrangement in relation to the children would neither be in their best interests nor reasonably practicable. Similarly, an interim parenting order that the children spend substantial and significant time with either parent would neither be in their best interests nor reasonably practicable.

Summary

1. Evaluating the above discussed primary and additional considerations under section 60CC of the Act, the Court is of the view, at this interim stage, that it would be in the best interests of the children, pending further order, that:

   a)the parties have equal shared parental responsibility for the children V, W, X, Y and Z.

   b)the children live with the mother.

   c)the child V spend time with the father in accordance with her wishes.

   d)the children W, X, Y and Z spend time with the father:

   i.on each weekend where the father is not working from Friday at 5:00pm until Sunday at 3:00pm; and

   ii.at other times as agreed between the parties.

   e)for the purpose of facilitating the children’s time with the father as above, the father shall provide not less than four (4) weeks’ notice to the mother of the weekends he proposes to exercise such time.

   f)that the Father have telephone or Skype time with the children each Sunday, Tuesday and Thursday between 7:00pm and 7:30pm, and the mother ensure that the father has privacy during such calls.

   g)For the purpose of the children spending time with the father pursuant to order 4 above, changeover shall occur at McDonalds at (omitted), or at such other places as the parties may agree.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:       30 September 2016