Insley & Insley
[2018] FCCA 438
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
INSLEY & INSLEY [2018] FCCA 438
Catchwords:
FAMILY LAW – Interim parenting – mother and child in Victoria, father in Wollongong – allegations of family violence – how credit issues and fact-finding is managed in interim hearings – orders in best interests of child.
Legislation:
Crimes Act 1900 (NSW), s.59
Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 67N, 67ZBB
Cases cited:
Deiter & Deiter [2011] FamCAFC 82
Drew & Jensen [2017] FCCA 656
Eaby & Speelman [2015] FamCAFC 104
Enmore & Smoothe [2014] FamCAFC 131
Goode & Goode [2006] FamCA 1346
Marvel& Marvel (No.2) [2010] FamCAFC 101
MRR v GR [2010] HCA 4
Reece & Reece [2011] FamCAFC 24
Salah & Salah [2016] FamCAFC 100
Applicant: MR INSLEY
Respondent: MS INSLEY
File Number: WOC 1079 of 2017
Judgment of: Judge Altobelli
Hearing date: 15 February 2018
Date of Last Submission: 15 February 2018
Delivered at: Wollongong
Delivered on: 13 March 2018 REPRESENTATION
Counsel for the Applicant: Mr Knox
Solicitors for the Applicant: Rita Thakur & Associates
Solicitors for the Respondent: Rebecca Bailey & Associates Solicitors for the Independent Children's Lawyer:
Robertson Solicitors
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
(1)The child X, born (omitted) 2018 (‘the child’) live with the Mother in Melbourne.
(2)The child spend time with the Father as follows:
(a)On each alternate weekend from 10am until 4pm on Saturday and from 10am until 4pm the following Sunday; and
(b)At other times as agreed between the parties in writing.
(3)For the purposes of changeover the Father shall collect the child from and return the child to the Mother's residence with the Maternal Uncle or Aunt to attend as the Mother's agent.
(4)The Father be restrained from removing the child from the State of Victoria without the Mother's express, written consent.
(5)Each party be restrained from denigrating the other party or members of the other party's family in the child's presence.
IT IS NOTED that publication of this judgment under the pseudonym Insley & Insley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 1079 of 2017
MR INSLEY Applicant
And
MS INSLEY Respondent
REASONS FOR JUDGMENT
Introduction
1.These Reasons for Judgment explain the orders that the Court has made on an interim basis in relation to a child X born (omitted) 2015, now aged two years old. X currently lives with his Mother in Melbourne. His Father lives in the former matrimonial home in the (omitted) region of New South Wales.
Background
2.X is 26 years old, and his Mother also 26. They married in (omitted) 2014 and came to Australia in (omitted) that year. The relationship ended on 29 September 2017 when the Mother left the former matrimonial home without notice to the Father, taking X with her to Melbourne where her only family in Australia lives, i.e. her sister and brother-in-law.
Competing proposals
3.At the interim hearing held in Wollongong on 15 February 2018 the Father proposed, through his Senior Counsel Mr Brian Knox SC, a number of alternative orders in relation to X. The proposal is reproduced in full in the first schedule to these reasons. The Father’s primary proposal was that X be returned to the Father’s care, that parental responsibility be shared and that X spend time with his Mother from 9am Friday until 9am Monday in week 1, and then from 9am Tuesday to 9am Friday in week 2. The Father’s first alternative proposal was that X live with his Mother, that parental responsibility be shared and that the Mother and X live in the (omitted) area. In this event, the Father would arrange rental accommodation for X and his Mother in the (omitted) area, adequately furnish the accommodation and meet rental payments. X would spend time with his Father from 9am Friday until 9am Monday in week 1, and 9am Tuesday until 9am Friday in week 2. The Father’s second alternative was that X live with the Mother in the Melbourne area, that parental responsibility be shared and that X spend time with the Father in (omitted) for one week in every three weeks with the Father to collect X from the Mother, and the Mother to collect X from the Father at the conclusion of his time.
4.The proposal of the Mother, advanced by her solicitor Ms Vassallo, was that the proceedings be transferred to the Federal Circuit Court in Melbourne, that X live with his Mother and spend time with his Father on one weekend each calendar month from 10am to 4pm on Saturday and from 10am to 4pm the following Sunday, and at all other times as agreed. The changeover would be at the Mother’s residence but facilitated by the maternal uncle or aunt. The Mother’s proposal is reproduced in the second schedule to these reasons.
5.At the interim hearing X was represented by the Independent Children’s Lawyer, Ms Robertson. Ms Robertson had only just come into the matter. Her proposal was that X spent time with his Father, on a supervised basis, and during day times only. Ms Robertson found it difficult to make submissions to the Court about whether X should be living with his Mother in the (omitted) area, or living with his Mother in Melbourne. Her focus was to ensure that on whichever arrangement, X continued to have a relationship with his Father.
The Evidence
6.In the Father’s case he relied on the following material.
a)Initiating Application filed on 15 November 2017;
b)Notice of Risk filed 15 November 2017;
c)Affidavit of Ms K sworn 13 October 2017;
d)Affidavit of Mr I sworn 13 October 2017;
e)Application in a Case filed 4 December 2017;
f)Affidavit of Mr Insley sworn 4 December 2017;
g)Affidavit of Rita Thakur sworn 11 January 2018;
h)Affidavit of Mr I sworn 11 January 2018; and
i)Affidavit of Mr Insley sworn 7 February 2018.
7.In the Mother’s case she relied on the following material:
a)Response to Initiating Application filed 12 February 2018;
b)Affidavit of Ms Insley sworn 11 February 2018; and
c)Notice of Risk filed 12 January 2018.
8.In the Independent Children’s Lawyer’s case, reliance was placed on the Child Dispute Conference Memorandum dated 12 February 2018.
9.Documents were tendered in evidence as follows:
| Exhibit No. | Description of Exhibit/MFI |
| A1 | FACS documents – S69ZW |
| ICL1 | CDC Memo |
| R1 | Grant of Legal Aid letter for Mother |
| R2 | Letters between parties |
| ICL2 | Cops Event from s69ZW |
| R3 | Photos of the Mother |
| A2 | Police document |
| Court A | Police Brief |
The Applicable law
10.The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
11.The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
12.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
13.If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
14.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
15.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
16.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
17.At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
18.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Review of the Evidence
19.It is important to closely consider the evidence before the Court before seeking to apply the relevant law to this material. The following is gleaned from the totality of the material before the Court.
20.The date of separation was 29 September 2017. On either account of the events, the Mother left the former matrimonial home with X, and without notice to the Father. On the same day, however, and before proceeding to Melbourne where the Mother would live with her sister and brother-in-law, together with X, the Mother was interviewed by (omitted) Police. On the same day an interim Apprehended Violence Order was obtained on the Mother’s behalf by the Police. The first order was a provisional order which protected both the Mother and X.
21.On 6 October 2017, the Court attendance notice that became Exhibit “A2” suggests that the Father was arrested, charged with assault occasioning actual bodily harm domestic violence related, pursuant to s.59(1) of the Crimes Act 1900 (NSW). He was bailed to attend before Wollongong Local Court on Thursday, 12 October 2017.
22.The next event chronologically appears to be the attendance at Wollongong Local Court on 12 October 2017. The provisional Apprehended Violence Order (‘AVO’) appears to have been made into an interim order. The charge against the Father was set down for hearing on 9 March 2018. Indeed, as both the charge and AVO were defended by the Father, it seems as if both were scheduled to be heard on that date.
23.On 31 October 2017 the Father filed an Application in a Case seeking an order under s.67N(2) of the Family Law Act, with a view to ascertaining the location of the Mother and, therefore, X. This application was supported by the Father’s affidavit sworn 30 October 2017. Suffice it to say that the evidence contained in the affidavit went to the issue of the making of the location order. For present purposes, the focus by the Court is on what, exactly, the Father disclosed to the Court about the AVO and criminal proceedings. At paragraph 11 of the said affidavit, the Father quite properly disclosed the existence of the interim Apprehended Violence Order that was made by the Court on 12 October 2017 protecting both the Mother, and X. At paragraph 10 the Father makes what the Court considers to be a rather cryptic reference to, “criminal law proceedings brought about by Ms Insley’s complaint to the police”. He referred to it as, “my criminal matter”. He explained that a plea of not guilty was entered. There is nothing in this affidavit to disclose that the Father had, in fact, been charged with assault occasioning actual bodily harm.
24.Further in support of the said Application in a Case is an affidavit of the Father’s solicitor, Rita Thakur sworn 12 October 2017. It is important to note that Ms Thakur was not representing the Father in criminal proceedings but only in the family law proceedings. Her affidavit likewise makes no reference to the assault charge. It is highly unlikely that a solicitor as experienced as Ms Thakur would not have disclosed in her affidavit the existence of the charge of assault occasioning actual bodily harm if she were aware of the same. This information was clearly relevant to the making of the location order and, indeed, to the making of all subsequent orders. The Court draws the inference that this information was not disclosed in Ms Thakur’s affidavit because she was unaware of the same.
25.On 1 November 2017, the Court made the order under s.67N(2), in Chambers, as well as making an order for substituted service requiring a sealed copy of the documents to be served on the Mother’s sister, with a letter requesting that the said documents be forwarded to the Mother.
26.On 15 November 2017, the Father’s substantive Application in this Case was filed, listed before the court on 6 December 2017. He sought final orders that X live with him and spend time with his Mother, “as agreed between the parties or in accordance with the Court’s orders”. He proposed joint parental responsibility. As interim orders the Father proposed that X live with him, and spend time with his Mother, again, as agreed between the parties, or in accordance with Court orders. At part F of the said application the Father quite properly disclosed the existence of, “Other court cases and orders,” and specifically, “Ongoing cases.” He thus referred to the apprehended violence proceedings in Wollongong Local Court. He makes no disclosure about the assault charges, even though part 49(a) of the said application specifically asks about, “… any ongoing cases ... about ... family violence ...”. This is notwithstanding the fact that his copy of the Court attendance notice specifically describes the charge as being: “Assault occasioning actual bodily harm domestic violence related”.
27.The substantive application was supported by the Father’s affidavit sworn 10 October 2017, filed 15 November 2017. This affidavit makes no reference to the assault charge. The Father was clearly aware of the violence allegations made by against him by the Mother, as these were contained in the apprehended violence orders that he had been served with. Indeed, he refers to the police statement at 22(o) of the said affidavit. It is possibly, indeed likely, that by the time of swearing this affidavit the Father had been served with the Court’s Exhibit A, which is the Facts Sheet and supporting document which probably constitutes the police brief against him in relation to the charge of assault occasioning actual bodily harm. The affidavit contains a number of very specific denials in relation to the allegations made by the Mother against him. In particular, at paragraph 31 he refers to an incident a day or so before the date of separation, when they were both driving in the car. Paragraph 31 of the Father’s affidavit bears reproduction in full:
31.The day or so before Ms Insley left we had an incident when we were driving in the car. I had started work at 2:00am on that morning to go to the (business omitted). I had been at the (business omitted) all morning and then went out to make a wholesale delivery. On my way to make the delivery I went home to pick up either my mum or Ms Insley to come work in the (business omitted) for the afternoon. Ms Insley came out and I started driving us to make the delivery and then on to the (business omitted). While we were driving I said to Ms Insley “Why haven’t you been getting up in the night to look after X?” Ms Insley became angry at my question and she started screaming at me. I was trying to drive and concentrate on the road. I found Ms Insley’s screaming a dangerous distraction. I wanted her to stop. I was feeling very tired after a long day. I said “Shut up” and I flung my arm out towards her in a gesture to say stop. I accidently scratched Ms Insley on the face when I put my arm out towards her. We kept driving and went to work.
28.A reasonable inference to draw from the last four sentences of this paragraph is that the Father was not only aware of the Mother’s allegations that he had physically assaulted her, causing injury to her right cheek, but he had also seen the photographs of the injuries which became Exhibit “R3” which are, in any event, contained in the brief, the Court’s Exhibit A. The Father thus construes the injury to the Mother as being accidental.
29.It must be borne in mind, importantly, that the Father still had not disclosed to the Court the criminal charges against him, let alone the particulars of the alleged assault. A reasonable inference to draw is that he had the Police brief (Court’s Exhibit “A”) and in any event it seems to the Court inescapably clear from Exhibit “A2”, the Court Attendance Notice, that he had been charged, and been granted bail. He had this information, but did not disclose this to the Court.
30.The Father’s application to the Court referred to above, was also supported by affidavits from the Paternal Grandmother and Paternal Grandfather, in each case sworn 13 October 2017, but filed on 15 November 2015.
31.The next relevant documents are affidavits of service which suggest that on 8 November 2017, and no doubt pursuant to the order for substituted service made by the Court, the Mother’s sister had been served with the Father’s documents. Also, on 21 November 2017, the Mother was herself personally served.
32.The application in question came before the Court on 6 December 2017. Two days earlier, however, the Father had filed an Application in a Case seeking orders that the Mother forthwith return X, that X live with the Father and that a recovery order issue. The Application in a Case was supported by the Father’s affidavit sworn 4 December 2017. The Father repeated evidence contained in his earlier affidavit. On reading this affidavit the inference is almost inescapable that he had, by then at least, been served with the Police brief and was well aware of the allegations made against him both in the criminal proceedings and in the AVO. The Father makes no explicit disclosure of the criminal proceedings. There is oblique reference in paragraph 6 where he refers to defending himself in proceedings through the local court (but which could be interpreted as referring to the AVO proceedings) and then annexure C, being an email from what would seem to be the Father’s criminal solicitor to his Family Law solicitor. The email in question is dated 12 October, but even this rather obliquely refers to, “The single charge”.
33.At paragraph 50 of the said affidavit he states: “When I spoke to the police I became aware that Ms Insley had taken an AVO out against me. I was relieved to know that Ms Insley and X were safe but I was completely shocked that she had left.” Of course, what the Father does not tell the Court, even though he is asking for a recovery application, is that he had been arrested on 6 October 2017 for assault occasioning actual bodily harm, and bailed.
34.On 6 December 2017 the Father appeared before the Court represented by Mr Knox SC. A recovery order was pressed, but the Court declined to make the order. Instead, the matter was adjourned to 15 January 2018 for mention. The Respondent Mother was ordered to appear in person failing which a warrant for her arrest would issue. The solicitor for the Father was directed to advise the Mother of the orders made that day and of the likely consequences of her non-attendance on the adjourned date. A watch list order was also made. The matter was adjourned to 15 January 2018.
35.On 11 January 2018 the Father filed a further affidavit that he had sworn on the same day. It provided evidence as to service, communication between the parties, and attempts made to arrange informal contact with X. Also on the same day there is an affidavit from Ms Thakur, the Father’s lawyer, setting out communications she had had with the Mother’s brother-in-law in relation to the case, and attempts to organise contact. Moreover, it refers to discussions with the Mother’s solicitor, Ms Vassallo on 22 December 2017, about contact.
36.The matter came before the Court on 15 January 2018. Ms Smith appeared on behalf of the Mother, as agent for Ms Vassallo. Orders were made about the filing of a Notice of Address for Service. Orders were made by consent in relation to the Father spending time with X. An order under 69ZW subsection (1) of the Family Law Act was made, addressed to the Department of Family and Community Services and New South Wales Police. An Independent Children’s Lawyer was urgently appointed. The Mother was directed to file and serve her documents by 12 February 2018, and the matter adjourned to 15 February 2018 for interim hearing. An Independent Children’s Lawyer was urgently appointed.
37.On 15 January 2018 the Father, through his Senior Counsel, once again pressed for the issue of recovery order. The Court once again declined, but did so on the basis of concern in relation to the allegations made as regards the AVO. The Court was still not made aware, other than in oblique terms, of the existence of the criminal proceedings of the Father. The Court was not made aware of the existence of the photographs of the Mother’s injuries, taken by Police, which became Exhibit “R3”, but which were in, in any event, part of the Police brief that the Father must have received as early as October. None of this information was placed before the Court.
38.Ms Smith submitted that the Mother was seeking a grant of aid, hence the need for the adjournment. Ms Smith explained to the Court that there were certain obstacles in obtaining instructions from the Mother both because she was in Melbourne and financially disadvantaged, but also because of her poor English.
39.Chronologically, the next relevant event took place on 6 February 2018 when the Mother’s solicitor, Ms Vassallo, received a grant of legal aid from the Legal Aid Commission of New South Wales. The letter in question, which became Exhibit “R1”, does state that the effective date of the grant was 24 January 2018. That, of course, is not the same as saying that the Mother’s solicitor had a grant which they should have acted on as from 24 January 2018. It is self-evident that the solicitor did not become aware of the grant of aid until 6 February 2018.
40.On 7 February 2018, the Father filed a further affidavit in which he sets out details of his contact visits with X in Melbourne. These contact visits appear to have gone satisfactorily.
41.On 12 February 2018, a number of significant events took place. Firstly there was a Child Dispute Conference held. The Memorandum became Exhibit “ICL1”. The Memorandum explains that the parents were interviewed separately and, indeed, a reasonable inference to draw from the other evidence is that the Mother participated by telephone. The Memorandum records the allegations made by the Mother, and the denials made by the Father. There is, however, what the Court considers to be an important observation of the Family Consultant recorded on page 2, commencing from line 2 through to immediately before the first dot point on that page. The Memorandum states:
Mr Insley denies the allegations made by Ms Insley about family violence, specifically denied that he hit, kicked or in any way physically abused Ms Insley. He said that his father was financially supporting them at the time when he was setting up a new business and denied that Ms Insley had no access to money saying that she could ask his father and said that his father had bought X an I-pad, with the understanding that Ms Insley could facetime her family after she had completed her duties. He denied that his mother told him to “beat” Ms Insley. Mr Insley used statements that indicated that he had the ability to make the final decision over Ms Insley, including statements “I was the one in charge” of ensuring that X was cared for at night by Ms Insley, was critical of Ms Insley’s attempts to resettle X at night and informed her of what she needed to do, said that “we (this author believes that he meant his mother and him) got him on the bottle” when Ms Insley “was not the best at it (breastfeeding)”. Mr Insley said that his mother was teaching Ms Insley how to care for a baby and that they (he and his mother) discouraged Ms Insley from joining the mother’s group as the paternal grandmother could show Ms Insley all she needed to know about parenting.
42.The potential significance of these observations will become apparent below, when considering the Mother’s allegations about the Father’s controlling behaviour.
43.The Family Consultant also makes some observations in relation to issues for X, in the middle paragraph on page 2, under the heading, “Issues for the children”:
It appears that, from the accounts of Mr Insley and Ms Insley, that Ms Insley was X’s primary carer. The parents agree that Ms Insley would get up to care for X through the night (Mr Insley said that he would often have to wake Ms Insley to X crying) and that Mr Insley would work, leaving the house at 3am and returning at 7pm. He said that although he would return through the day, sometimes for up to three to four hours to check on Ms Insley and X, he agrees that Ms Insley’s role was to care for X. He said that his mother supported Ms Insley in caring for X and would take X when need be. Ms Insley said that she was responsible for caring for X and said that Mr Insley and the paternal grandparents were working all day and she was left home alone.
44.The final paragraph of the Memorandum, appearing on the third page, states as follows:
On an interim basis, the history of care for X and the allegations about family violence appear to be central issues for consideration by the Court. There are both shorter and longer term concerns about how X will maintain a significant and substantial relationship with the parent with whom he does not live with. The parents are each encouraged to further consider their proposals to support X having a relationship with the parent who he is not primarily living with.
45.On 12 February 2018, the Mother filed her Response, together with her affidavit that had been sworn in Melbourne the previous day. The Mother sets out detailed evidence of the violence that she alleges was perpetrated by the Father, his controlling conduct, as well as conduct of other members of his family. She also gives evidence about her personal and financial circumstances and in particular that she did not speak English, that she was Centrelink dependent which was limited to a special payment in the sum of $265 per week, and that her only other income was child support in the sum of $29.50 per week. She deposed to her dependence on her sister and brother-in-law, her only family in Australia.
46.The matter came before the Court for interim hearing on 15 February 2018. It was, from the Court’s perspective, only on that date that all of the material that has been summarised before, became apparent. In particular, the Court notes, that the existence of the criminal charge against the Father that, being generous to him, had only been disclosed in an oblique sense, became clear to the Court. The existence of the police photographs of the victim’s injury only became apparent from Exhibit “ICL2”. The existence of the Police brief only came before the Court because the Court asked for it and it was produced by the Father.
The Cases Summarised
47.The Father characterised the Mother’s actions in removing X from the family home, and relocating to Melbourne, as a unilateral relocation to an unfamiliar environment, removing X from his Father and the paternal grandparents, who have been an integral part of his life. He strenuously denied the allegations of violence made against him, and was very critical of what he perceived as the Mother seeking to avoid her responsibilities in meeting his case, and then complying with the orders made. In particular, the Father’s case raised questions about the Mother’s credit. The supplementary written submission provided to the Court at the hearing highlighted what the Father asserted to be significant inconsistencies in the evidence of the Mother as regards her allegations of violence and abuse.
48.The Mother’s case was that the separation, removal of X, and relocation to Melbourne was all motivated by seeking to avoid the risk to her, and to X, of exposure to family violence perpetrated by the Father, and members of the Father’s family. Her case emphasised that the Mother was the primary carer for X given the Father, and his parents’ extensive involvement in their family business. Her case emphasised that it was not possible for the Mother to remain living in the (omitted) because of her lack of proficiency in the English language, and her isolation from her only family, which was found in Melbourne. Thus, for the Mother to return to the (omitted) would cause extreme hardship but, perhaps more importantly from her perspective, put her in continued fear about her safety and wellbeing, and that of X.
49.The Independent Children’s Lawyer’s case expressed concerns about the serious allegations made by the Mother, albeit denied by the Father. The Independent Children’s Lawyer was concerned about how X could continue a relationship with his Father if he were to remain with his Mother in Melbourne, but also with the logistical challenges for the Mother and X if they were forced to return to the (omitted).
Observations about the Evidence
50.In the Mother’s affidavit she deposed to speaking virtually no English at all. It was also plain from her evidence that her only family in Australia was her sister and brother-in-law in Melbourne. Her assertion, therefore, that she had no other family or friends in Australia that she could rely on seems well grounded. In Senior Counsel’s supplementary written submissions, Mr Knox SC quite properly concedes at page 4 that the Mother lacked proficiency in the English language and was distant from her immediate family.
51.The Court accepts that there were formidable challenges confronting the Mother, who could not speak English proficiently, and who was living in Melbourne and seeking to respond to a proceeding in Wollongong which involved obtaining a New South Wales grant of legal aid, and giving instructions to a family lawyer in the (omitted) region. The Court accepts no criticism directed to the Mother or indirectly to those representing her, about the delays in obtaining instructions and filing her evidence.
52.Senior Counsel for the Father quite correctly pointed the Court towards the inconsistencies, for example, between the Mother’s affidavit, what she is recorded as having told the Family Consultant in the Child Dispute Conference Memorandum and the Police reports. It is possible that these inconsistencies will take on a much greater role at a final hearing. Even then, however, the reality of the Mother’s lack of proficiency in the English language must be taken into account. The Mother must have given instructions to her solicitor, and spoken to the Police, and participated in the Child Dispute Conference, using an interpreter. Whether that interpreter was duly qualified, or not, is unknown. The Court cannot rule out the possibility, therefore, that in a case like this where lack of English proficiency is a conceded fact, the inconsistency might be explained, in part of in whole, by reference to this issue.
53.The Mother’s lack of proficiency in the English language also provides, at least in part, a plausible explanation for why there are so few pre-separation reports about the violence that the Mother alleges that she suffered. It must be borne in mind that the Mother’s evidence is that she was totally dependent on those around her to, in effect, engage with the world. But it was those very people who, the Mother alleges, were the perpetrators of the violence and abuse against her. It is hardly surprising, in the circumstance, that there is no corroborative evidence of her allegations of violence and abuse. A possible added complexity in this case was that the Mother’s uncertain immigration status may have added to the difficulties she had in knowing her rights, being able to exercise her rights, and then to access the services available to assist her. The evidence indicates, for example, that she was only able to make the report to the Police with the assistance of her sister. The Court must not lose sight of the possibility that this case involves a complex cultural dynamic the full implications of which are yet to be understood.
54.It is important to recognise that there is clear evidence of an injury that was perpetrated by the Father on the Mother. She says that he assaulted her. He says that it was accidental. The criminal charge that the Father faces, assault occasioning actual bodily harm, suggests the Police believed there was substance in the Mother’s allegations. The Court expresses its concern in relation to the Father’s disclosure about the criminal charge. It was never explicitly disclosed in his evidence. There is inexplicit indirect reference to it, but never by the Father himself. Given that the Father was seeking a recovery order, and thus bore a substantial duty of disclosure, the Court expresses concern about this: see Drew & Jensen [2017] FCCA 656.
55.Even the Father’s evidence about how the Mother came to suffer what appeared to be a scratch injury on her cheek raises concerns. In his affidavit of 4 December 2017, paragraph 47 item “n” on page 13, he states:
I admit that I caused a scratch on Ms Insley’s cheeks while we were driving in the car. This was not because I was reaching over to grab her hair but rather because I was putting my hand out saying to her, ‘Shut up,’ and while doing this I accidentally scratched on her face.
56.In the next paragraph, paragraph 40(a) he deposes to the argument between the in the car. He says:
Ms Insley became angry at my question and she started screaming at me. I was trying to drive and concentrate on the road. I found Ms Insley’s screaming a dangerous distraction. I wanted her to stop. I was feeling very tired after a long day. I said, ‘Shut up,’ and I flung my arm out towards her in a gesture to say, ‘Stop’. I accidentally scratched Ms Insley on the face when I put my arm out towards her.
57.This Court finds the Father’s evidence quite disturbing. If, as the Father asserts, he found the Mother’s screaming, “a dangerous distraction,” why did he not stop? Why refer to the fact that he was “very tired after a long day”, almost in apologetic terms. When he “flung [his] arm out towards her,” there is a strong sense in which he seeks to communicate at least frustration, but probably anger. Why was it necessary, one might ask, to fling out his arm as a gesture to say stop? The Court observes that the Mother does not appear to enjoy a monopoly on inconsistent evidence, with the Father in paragraph 47(n) referring to, “putting my hand out,” but in the next paragraph: “I flung my arm out.” The Father’s own account seems inconsistent with his assertion of an accidental blow to the Mother’s face that resulted in scratches on it. Even on his account, the striking of the Mother does not appear to have been entirely by chance as he seems to suggest by describing it as an accident.
58.The Mother’s affidavit contains detailed depictions of the controlling behaviour that she experienced in the Father’s household, and perpetrated by the Father, and his family. These allegations are, of course, denied by them. The Child Dispute Conference Memorandum dated 12 February 2018, however, provides an interesting perspective on these allegations. On the second page the Family Consultant makes this observation about the Father:
Mr Insley used statements that indicated that he had the ability to make the final decision over Ms Insley, including statements, ‘I was the one in charge,’ of ensuring that X was cared for at night by Ms Insley, was critical of Ms Insley’s attempt to resettle X at night and informed her of what she needed to do, said that, ‘We (this author believes that he meant his Mother and him) got him on the bottle.’ When Ms Insley, ‘Was not the best at it (breastfeeding)’. Mr Insley said that his Mother was teaching Ms Insley how to care for a baby and they (he and his Mother) discouraged Ms Insley from joining the Mother’s group as the paternal grandmother could show Ms Insley all that she needed to know about parenting.
59.The Court accepts that a Child Dispute Conference Memorandum only provides to the Court preliminary expert advice, and that any views expressed or recommendations made are, of necessity, limited. The passage above, however, is an observation and record made by the Family Consultant. The Court accepts that at a final hearing the Father may wish to contend that the record is inaccurate, and may wish to cross-examine the Family Consultant. It is important to note, however, that the Memorandum came into evidence without objection and no submission was made as to the inaccuracy of anything recorded that was attributed to the Father.
60.In those circumstances, this Court believes itself entitled, therefore, to make the following observations. The Father was clearly aware of the Mother’s complaint that she had no access to money. With respect to the Father, he merely confirms that this is the case by saying that she could ask his Father for money. Further, the Father explains that his Father purchased an iPad for X, so that the Mother could FaceTime her family, after she had completed her duties. One might understand the Mother’s concern about control, given that the iPad was purchased for a three-year-old child, rather than herself, but on the basis that she could FaceTime her family, “after she had completed her duties.” The statements that the Father used are entirely consistent with the Mother’s assertion of feeling controlled by him. The Father was plainly, and openly, critical of the Mother’s care of X at night, even though the totality of the material before the Court strongly suggests that the Mother was responsible for the care of X not just at night but for most of the day as well, in between undertaking, “her duties.” The Mother’s concerns about not being allowed to breastfeed X are not all that inconsistent with the Father’s statements about what seems to be an alliance between his mother and himself in weaning X off his Mother’s breast. The Father’s statement that he discouraged the Mother, “from joining the Mother’s group,” is again not inconsistent with the Mother’s experience of the Father’s behaviour as being controlling.
The Challenge of Fact-Finding in this Case
61.This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
62.If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
63.In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
64.Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but 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. The Full Court stated that 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. Nonetheless, the Full Court warned, findings must be couched with circumspection.
65.The Full Court in Marvel& Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
66.In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
67.In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
68.At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
69.The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
70.The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
71.In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
72.In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
73.Applying that law to the facts of the case as presently before the Court, the Court must consider the likely impact on X of ignoring, or failing to act, on the Mother’s allegation. His Mother would be placed in a situation that, for whatever reason, she considers unacceptable because of the fear that she would experience. The Mother is clearly X’s primary carer. It cannot be in X’s best interests to so expose the Mother.
74.Even in a case like this where the facts are so contested, the Court must adopt the course that is likely to avoid harm to X. In circumstances where the Mother is his primary carer, the Father’s proposals for X to live with him are clearly problematic. The Court would have to completely disregard the Mother’s allegations, which it is not willing to do.
75.The significance of the Child Dispute Conference Memorandum must not be minimised. In the Court’s view, it contains statements by the Father in the nature of concessions which are consistent with the Mother’s allegations about controlling behaviour.
76.In assessing the risk to X, and indeed to his Mother, the Court cannot ignore the objective evidence of the Mother’s physical injuries, and the Father’s rather selective disclosure (and indeed, nondisclosure) of the criminal charge against him. These factors increase, in the Court’s mind, the likelihood of the occurrence of future events, whether it be the controlling conduct as alleged by the Mother or physical manifestations of violence and abuse. The risk is therefore increased, even before considering the likely impact on X and his Mother, of the Father’s proposals. It is no wonder, with respect, that the Independent Children’s Lawyer proposed supervised contact with the Father.
77.The evidence has been subjected to critical scrutiny. The inconsistencies in the Mother’s evidence are duly noted. Nonetheless, there are plausible explanations including the lack of the Mother’s proficiency in English, and her isolation.
78.In short, the material before the Court, in its totality, and even when viewed critically, does support the Mother’s concerns about family violence and abuse, including controlling behaviour, and suggests that the Court must take a conservative, careful approach to avoid both the Mother, and X, being re-exposed to such behaviour. In this Court’s mind, this rules out any proposal that involves the Mother returning with X to the (omitted), and most certainly rules out X going into his Father’s care.
Orders in the best interests of X
79.The Mother concedes that X has a meaningful relationship with his Father. The material before the Court confirms this. Having regard to the Court’s observations above, the question is whether X can continue to have a meaningful relationship with his Father if he continues to live with his Mother in Victoria. Whilst the situation will be less than ideal, it is nonetheless possible that that meaningful relationship will continue if the Father is prepared to regularly spend time with his son in Melbourne, pending a final hearing.
80.The Court is satisfied that, on the facts of this case, the only way to protect X from the risk of exposure to family violence is if he remains living with his Mother in Melbourne where she feels safe, and where she is best supported by the only family that she has in Australia.
81.X appears to have a good relationship with the paternal grandparents, and there seems no reason why they should not also be able to spend time with X, albeit it in Melbourne.
82.Whilst the Father has been very critical of the Mother’s actions in unilaterally relocating X, the Court’s concerns expressed above lead it to conclude that the Mother’s actions were quite understandable under the circumstances. Her proposal that X only spend one weekend each calendar month with the Father is conservative, and if the Father is ready, willing and able to travel down each alternate weekend, there appears no reason why this should not take place.
83.X has already experienced one significant change in his circumstances, i.e. the move to Melbourne. The impact of this is mitigated by the fact that he continues to be primarily cared for by his Mother who now appears to be well supported in an environment that she finds non-threatening. On the evidence, there is no reason to once again change the circumstances by ordering X back to Sydney.
84.There are formidable obstacles in terms of practical difficulty and expense. If the Mother were forced back to Sydney, even having regard to the Father’s quite generous proposal to pay her accommodation and bond, for a period, the Mother would remain isolated, and concerned for her safety and X’s safety. Her only income is a Centrelink emergency payment in the sum of $265 per week. Given the Father’s offer of assistance, she could probably get by, but only minimally so.
85.The Court accepts that there are significant issues of practical difficulty and expense for the Father spending time with X in Melbourne. However, the Court infers that his financial circumstances are much stronger than that of the Mother’s. His offer to pay the Mother’s accommodation is consistent with him having the financial capacity to meet the cost of the same. The same inference may be drawn in relation to his legal representation, which included Senior Counsel on numerous occasions.
86.Issues of parental capacity, and parental attitudes, are best left for a final hearing. Even on the Court’s limited finding about violence and abuse, there must be reason to concerned about the Father’s parental capacity, and attitudes to parenting.
Parental responsibility
87.The Mother seeks no order in this regard. The Father seeks equal shared parental responsibility. There is no necessity to make this order at this time. Whilst the order was sought by the Father, no submissions were put in support of the same.
Supervision?
88.The Mother’s proposal did not involve the Father’s time with X being supervised. The existing interim order only refers to the Father and the paternal grandparents, thus suggesting at least implicitly, that they supervise his time with X. The Independent Children’s Lawyer’s proposal was that the Father’s time be supervised, but it was a proposal made very late. The precise basis of this is unclear, unless the need for supervision is integral to the Independent Children’s Lawyer’s suggested cautious approach. It is significant however that the Mother did not propose supervision. The risk to X is not so much that he will be removed from the Mother’s care, or even from Victoria, but rather, the Court believes, that X will be exposed to the Father’s attitudes about the Mother. This risk is mitigated, however, by the frequency and duration of X’s time with his father, and his young age. No supervision will be imposed in the circumstances.
Spends time with orders
89.The Court believes that in order for X to have a meaningful relationship with his Father, he would need to spend time with him more often than once per month. If the Father can travel down to Melbourne each alternate weekend, he should have the option of spending time with X, broadly in accordance with the Mother’s proposal which was 10am till 4 pm on the Saturday and Sunday, but it will be on alternating weekends, rather than once per calendar month. The Mother proposed the changeover be at her home but facilitated by the maternal aunt and uncle. As she is content with this proposal, the Court accedes to the same.
Change of venue
90.A change of venue to Melbourne is sought by the Mother. The focus of the interim hearing was on other matters. The Court will hear short oral submissions from the parties about this before ruling on the issue.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 13 March 2018
Schedule 1
PROPOSED ORDERS
The husband seeks the following:
1.That the child X born (omitted) 2016 be returned to the husband's care and thereafter the husband shall be responsible for the child's day to day care, welfare and development.
2.That both parties have equal shared parental responsibility for the long term care, welfare and development of the child.
3.That the child spend time with the wife as follows:
(a)From 9.00am Friday until 9.00am Monday in week 1.
(b)From 9.00am Tuesday until 9.00am Friday in week 2.
In the alternative:
4.That the child live with the wife.
5.That both parties have equal shared parental responsibility for the long term care, welfare and development of the child.
6.That the wife reside in the (omitted) area.
7.That the husband arrange rental accommodation for the wife in the (omitted) area and the husband shall ensure that the accommodation is furnished and adequate for the wife's needs and further the husband shall be responsible solely for the rental payments for the wife's accommodation.
8.That the husband have contact with the child as follows:
(a)From 9.00am Friday until 9.00am Monday in week 1.
(b)From 9.00am Tuesday until 9.00am Friday in week 2.
In the alternative:
9.That the child live with the wife.
10.That the wife reside in the Melbourne area.
11.That both parties have equal shared parental responsibility for the long term care, welfare and development of the child.
12.That the husband spend time with the child in (omitted) as follows:
(a)For one (1) week in every three (3) weeks.
(b)For the purposes of the time sought the husband shall collect the child from the wife at the commencement of his time and the wife shall collect the child from the husband at the end of his one (1) week.
Schedule 2
1.That these proceedings be transferred to Melbourne Federal Circuit Court.
2.That the child X born (omitted) 2018 live with the mother
3.That the child spend time with the father as follows:
(a)On one weekend each Calendar month from 10am until 4pm on Saturday and from 10am until 4pm the following Sunday; and
(b)At other times as agreed between the parties in writing.
4.That for the purposes of changeover the father shall collect the child from and return the child to the mother's residence with the maternal uncle or aunt to attend as the Mother's agent.
5.That the father be restrained from removing the child from the State of Victoria without the mother's express, written consent.
6.That each party be restrained from denigrating the other party or members of the other party's family in the child's presence.
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