Jervis and Bannon

[2015] FCCA 3588

FEDERAL CIRCUIT COURT OF AUSTRALIA

JERVIS & BANNON [2015] FCCA 3588

Catchwords:
FAMILY LAW – Parenting orders – children strongly aligned with father – father not following orders made by consent only months before – change in residence.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383

Applicant: MS JERVIS

Respondent: MR BANNON

File Number: DGC 3541 of 2014

Judgment of: Judge Small

Hearing date: 16 December 2015

Date of Last Submission: 16 December 2015

Delivered at: Melbourne

Delivered on: 16 December 2015

REPRESENTATION

Counsel for the Applicant: Mr R. Wiel

Solicitors for the Applicant: Mackinnon Jacobs Lawyers

Counsel for the Respondent: Ms M. Mandelert

Solicitors for the Respondent: Hicks Oakley Chessell Williams

ORDERS:

1. The matter be adjourned to the Duty List of Federal Circuit Court of Australia in Dandenong on 27 April 2016 at 9:45am for Directions.

2. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the children X born (omitted) 2011 and Y born (omitted) 2004 (“the children”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Dandenong Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 13 April 2016.

3. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

4. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

5. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

6. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

7. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

8. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

9. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

11. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1. The father MR BANNON shall return the children X born (omitted) 2011 and Y born (omitted) 2004 (“the children”) to the care of the Mother MS JERVIS by 6:00pm on 18 December 2015.

2. That if the father fails to comply with Order 12 herein, then under Section 67Q of the Family Law Act 1975 the Marshall of the Family Court of Australia, the Australian Federal Police and all officers of the Police Forces in each state and territory of the Commonwealth of Australia be authorised and directed to recover and deliver the children to the Mother and for that purpose to stop and search any vehicle, vessel or aircraft and search any premises or place in which there is, at any time, reasonable  cause to believe that the children may be found.

3. The Father, his servants or agents be and are hereby restrained from again removing or causing the removal of the children from the care of the Mother upon any breach of which by any person that person may be arrested without warrant.

4. The children live with the wife.

5. The children spend time and communicate with the father as follows:

   (a)During school terms in each alternate week from after school or 4:00pm on Friday to before school or 9:00am Wednesday beginning on the second weekend of the 2016 school year;

   (b)From after school to 8:00pm on the Monday preceding the Friday when the children will be spending time pursuant to paragraph (a) hereof;

   (c)For half of the school term holidays by agreement and failing agreement from noon on the first Saturday to noon on the second Sunday;

   (d)From 7 January 2016 to 25 January 2016; and

   (e)For Christmas Day from 5:00pm on 23 December 2015 to 11:00am on 25 December 2015.

6. The parties be and are hereby restrained by injunction from having a blood alcohol reading of 0.05 or over whilst the children are in their care or allowing them to remain in the presence of any other person who has such a blood alcohol reading.

7. The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother or father to or in the presence or hearing of the children or either of them, and from permitting any other person to do so.

8. The parties and their servants and agents be and are hereby restrained by injunction from discussing these proceedings with or in the presence or hearing of the children or any of them, and from permitting either other person to do so.

9. The parties’ costs of this day be reserved.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3541 of 2014

MS JERVIS

Applicant

And

MR BANNON

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The matter of Jervis and Bannon comes before me today, having been adjourned from yesterday’s Duty List, when the parties came before the Court on the Mother’s urgent application for a Recovery Order. The children who are the subject of that application are X who was born on (omitted) 2001 and who is now 14 and a half, and Y who was born on (omitted) 2004 and who is therefore just 11 [“the children”]. 

2. The history of this matter is that the parties were engaged in litigation about the care arrangements for the children earlier in 2015 and agreement was reached between them that the children would live week about with them with Final Orders in those terms being made by consent in August 2015. 

3. Now, it is said often both by courts and by family consultants that for children to have a successful week about regime with their parents, their parents need to communicate.  This is a situation where the parents cannot communicate.  That is very sad.  That is, in fact, tragic for these young boys because what has happened now is that we are back in court again.  A family report was provided by Ms B as part of what I will call the previous proceedings, because they were finalised on 3 August 2015.

4. That report (and it was a full family report) was very clear, that there was a real danger of X becoming aligned with his father and rejecting his mother.  Ms B’s response to that was that she thought that the children should live predominantly with their mother and have time with their father, but she was most concerned about X’s alignment with his father and the fact that Y, of course, being three and a half years younger, follows his big brother and is somewhat in awe of his big brother.

5. Despite that recommendation, and now the mother says, in a mistaken belief that things might settle down and it might all work, she agreed on 3 August 2015, some four months ago, that the children would live with each party week about. Various other orders were made, but essentially the regime that the parties agreed on four months ago was that the children would live week about.  There was also an agreement as part of those orders that each parent would be at liberty to take the children overseas for a two week period each year, if that was what they wanted to do.

6. On 15 September 2015 the husband initiated proceedings seeking that he be permitted to take the children overseas for a holiday for two and a half weeks in January 2016. The hearing of that Application was held on 30 November 2015. That holiday is to the (country omitted) and the (country omitted) and I have no doubt the children will have a wonderful time.  I was concerned at the time of that hearing, and I said when I made an order that the children be permitted to go, that I hoped there would not be any more – and I think I used the words “boundary pushing” at that time.

7. I was very concerned at that time that those proceedings had been issued only six weeks or so after the final orders had been made by consent and what I felt at the time was that this was not going to be the end of the matter.  I was right, unfortunately, because orders were made by me on 30 November 2015, only a little more than two weeks ago which allowed Mr Bannon to take X and Y for the overseas trip with his parents.  A matter of days after that order was made, this Application was issued, and in the affidavit material filed in those proceedings, there was no mention of any issue about the week about arrangement. 

8. There was no mention that it was not working or that the children did not like it or that it was not working for the parents.  There was no mention except, I think, that it was working well. 

9. A few days after that order was made, it is not disputed that X texted his father from school asking his father to collect him. His father, rather than saying to X, “Look, your Mum and I agreed that we would have week about and that is the way it is going to be, and this week is Mum’s week so you are going to have to go home with Mum”, took X and Y home. He says belatedly that that is what he said, and that X was adamant. 

10. The mother’s evidence is that she attended the school, that X and Y were in the school grounds and about to leave I think it might have been the father (on the mother’s evidence) who asked Y where he wanted to go, and Y pointed to his father’s car.  The children went with their father that day and they have not spent time with their mother since.  The mother’s evidence is that she was then forced to file these proceedings because the father would not return the children and was saying the children did not want to see her, and that they should come back to her care when they wanted to.

11. These proceedings were filed on 8 December 2015, which is eight days ago today, and they were abridged so that they would be heard on Monday 14 December 2015.  They were abridged to Monday, so a six day abridgment, which was the first that could be accommodated, was granted.  At that hearing I sent the parties to section 11F counselling in an attempt to see what was actually going on.  It was an extraordinary circumstance, in my view, so I sent the parties to section 11F counselling. 

12. They attended yesterday, Tuesday, 15 December 2015, with Ms L, who is a family consultant here at the court, and Ms L gave oral evidence before me yesterday. She also apparently provided late yesterday – I was unaware of this until I opened the file at lunchtime today – a written memorandum in relation to this matter. I have not read the whole of the written memorandum because, as I said, I was not aware that it was there, but I have taken notes and there is nothing in what I can read of the written material that is different to what Ms L said yesterday in any great substance. 

13. And what Ms L said yesterday was that the fears of Ms B seem to have come about.  Ms B said that the biggest risk to the children was that the children would become aligned with the father and reject the mother.  X (at least) seems to have done that, and Y is, on the evidence before me, somewhat confused and not really knowing what to do. He follows his brother, and I think I can say what 11 year old does not look up to his 14 and a half year old brother?

14. But what the family consultant yesterday said was that what Ms B had feared had come true, that X was “entrenched in his alignment with his father”.  She said that the process of alienation and alignment was happening as she spoke, and that Y was simply following his big brother in rejecting his mother.  The children did express to Ms L that they were unhappy with the week about arrangement, because they said they were constantly changing.  In fact, they only changed once a week and any other regime would have them changing perhaps more than that, but at the moment they are only changing once a week.

15. The father was concerned about excessive alcohol use in the mother’s house because the mother is now living with her new partner, Mr K. It seems to be that the mother’s decision to have Mr K live with her has caused a ruction of some sort in the boys’ minds at least.  The boys said that they were concerned about Mr K’s alcohol use and so did the father, although the father cannot know because he is not there.  But the boys say that they are concerned, and they said – or X said – that alcohol does not affect his mother because she drinks so much that it does not affect her any more.

16. He did not have a positive word to say about his mother when he was interviewed yesterday, and when Ms L was talking about risk factors she talked about the children’s alignment with the father.  And what she said was she could not tell if the alienation or alignment or whatever we want to call it was the father’s conscious doing, but that it was happening whether it was conscious or unconscious.  And what she did say was that the complaints of the children about their mother were not, in her view, enough to warrant rejection of her.

17. She said that when she asked the children for examples of the mother’s behaviour that would cause that rejection, that those examples were really what Ms L called “quite benign” and she could not really get to the reasons why the children were rejecting their mother.  She did say that the children want to live with their father and spend time with their mother when they want to.  The overall impression I get is of, as I have said, as a 14 and a half year old child who is articulate, who is “precocious” in the words of the family consultant, and who in the family consultant’s words is “advocating for the father”, and who appears to be running this family.  What X wants, X gets.

18. The evidence of the parties is that the father did not tell X that he could not come home with him, that he would go with his mother, as was not only the agreement between the parents but the court orders that the parents had agreed on.  And the family consultant yesterday said very clearly that the equal shared care arrangement was not working.  She said that it was not working for the children and I have no reason to doubt that, and certainly where the parties do not communicate at all it is of no surprise whatsoever that a equal shared care arrangement is not working.

19. Ms L said that the boys have a natural affinity with the father because of their gender, and while that may be true the affinity is becoming somewhat toxic in terms of their relationship with their mother – and that is my word, not Ms L’s.  She did say that the week about arrangement was detrimental to both of the children and that they need to spend most of their time in one home and spend substantive time with the other parent.  I did not hear her say that she thought that the children should live with the father. 

20. What she said was if the children were to live with the father, then they should spend a minimum of five nights a fortnight with the mother, and Ms L proposed a nine/five or eight/six fortnightly regime.  I am told today that the father did tell X that he had to go with his mother, but the fact is that X did not. The father is saying now that he has had a talk with the boys overnight and that they understand that they will be spending considerable time with their mother.  That is from the bar table of course as it only happened last night. 

21. I still have no idea of how the father is going to ensure that the children spend time with their mother, and my concern is that of both family consultants.  If X is allowed to continue to have the power that he has in this family, if the father does not ensure that the boys spend significant time with their mother, then the risk is that they will reject their mother.  And there is no reason I can see on the evidence before me for why they should do that, other than she has a new partner and they do not particularly like him.

22. They express views about Mr K’s alcohol consumption, (and I can make orders that account for that) and I do make orders every day in relation to parties’ alcohol consumption. 

23. The proposal of the father is that the children live with him for nine nights a fortnight and that they spend five nights a fortnight with their mother, and that they have time with their mother in the daytime for the next couple of weeks.  I presume that is because they have not seen her for a couple of weeks but he suggests daytime until the 23rd of December 2015 which is, I think, next Wednesday when they would have two nights with their mother until Christmas morning, and then they would have, on the written version of the father’s proposal no other time with their mother until they went back to school in 2016.

24. They are going overseas, pursuant to the orders of 30 November 2015, two weeks after Christmas, and there is no written proposal, although Ms Mandelert says that that may have been an oversight on her part, for any time between the children and their Mother between Christmas and when they go overseas after which they will be with their father entirely for two and a half weeks, so I need to fill that space.  But that is the father’s proposal, that there be a nine/five fortnight in his favour and that the children have some specific time between now and Christmas.

25. He also makes a proposal that Y continue to attend upon his counsellor, and that is to be commended. It is a recommendation of the family consultant because Y is showing certain signs of distress and anxiety and he certainly needs some help.  I think his distress and anxiety is a very clear indication of his feeling torn between both parents and he is not getting a lot of help from his father, it would seem, in encouraging a relationship with his mother. 

1. The mother’s proposal, in her application, is that the children live with her, and she makes no further proposal because she sought at that time a recovery order and she wanted to particularise her proposal after the recovery order had been effected.  Unfortunately, she still has not particularised that proposal other than to assume that I would make an order not for the children to live with her and therefore she had a fallback position of the children going back to their week about time that they had pursuant to the orders of 3 August 2015.

2. When I look at the law in relation to this matter, it is very clear that it is the children’s best interests that are my paramount consideration. That is set out in black and white in section 60CA of the Family Law Act.

3. And then section 60CC of the Act sets out 16 different factors that I need to take into account when I am making a parenting order and when I am deciding what is in the children’s best interests. The first of those matters is the benefit to the children of having a meaningful relationship with both those children’s parents, and the question of what the word meaningful means in that context has been discussed several times in the Family Court.

4. In a very often quoted passage from the judgment in Mazorski & Albright, Brown J talked about the need for the relationship to be important and significant and words like that for it to be meaningful.  She said very clearly that the word meaningful is a qualitative word, not a quantitative word; in other words, there is no requirement that a particular amount of time be spent with each parent for it to be a meaningful relationship. 

5. In a case called Tait & Dinsmore, Cronin J went a bit further in his discussion of what meaningful meant.

6. He agreed that words such as those used by Brown J were appropriate and he added a few more that were very similar in terms of significance, but then he added something that was not mentioned by Brown J.  He said the question of whether a relationship is meaningful also involves a parent being a role model for a child.  It involves a parent teaching a child what it is to be a parent, what it is to be a citizen and that that role model role, if I can put it like that, is very important in whether a relationship is meaningful or not. 

7. In this case, it would seem to me that it is definitely beneficial to the children to have a meaningful relationship with both parents.

8. I have been critical of the father, and I do not resile from that criticism about the father’s behaviour on the day that X texted him and said, “I don’t want to go to Mums”.  As I said, I do not resile from that criticism.  I see that as an example of the father not providing a role model for his son and therefore diminishing the meaningfulness of his son’s relationship with him.  Fathers and mothers are there to guide children.  They are there to teach children and to bring them up in the knowledge of what the rules of the society are and in this case, the father seems to have fallen considerably short of that necessary requirement for his relationship with his sons to be meaningful.

9. But, nevertheless, I certainly considered the benefit of a meaningful relationship with both the children’s parents as being one of the paramount considerations.

10. There are two primary considerations, the other being the need to protect a child from psychological or physical harm as a result of abuse, neglect or being exposed to family violence and, of course, family violence is not just physical. 

11. There are many kinds of violence.  There is controlling and coercive behaviour, there is verbal denigration, there is financial control and there is a situation where a pattern of conduct, each instance of which is perfectly lawful and perfectly reasonable, but when taken as a whole, can amount to family violence.  That is the concern that I had on 30 November 2015 when I heard this matter in relation to the children going overseas.

12. The orders were made on 3 August 2015. They were then challenged on 15 September 2015 and now they are challenged again because the father did not comply with and act as though he agreed with the orders that he consented to in August.  I have some concerns about what that is doing the children.  Both family consultants say that the father either consciously or unconsciously is aligning the children with himself against the mother. 

13. Now, he says he has concerns about the mother’s behaviour.  He says he has concerns about the mother assaulting Y. 

14. That matter is historical and was dealt with in Ms B’s family report.  That is not anything new and it seems to me that the husband is prepared to latch onto very specific instances of where the mother may not have acted in the most appropriate way, and to reinforce those incidents.  In fact, X told the family consultant yesterday in a rather derisory tone, I believe, that his mother had put him into a crèche when he was six weeks old. He cannot possibly have known that without being told, and without that being told to him by the father, I would think, in terms of it being something to criticise.

15. So I think in this case the children do need to be protected from psychological harm from the alignment with their father, which has now been mentioned and noted by two family consultants, and their alienation from or rejection of the mother. 

16. The next things I need to take account of are called not secondary considerations, but additional considerations.  There are 14 of them and I am not going to go through every single one of them this afternoon. This is an interim hearing and it is already 4.30pm and I have another matter to deal with, but the first of those is the wishes of the children, having regard to their maturity and their particular circumstances.

17. Now, X has made his wishes very clear.  He wants to live with his father.  Y follows X in, it seems, almost anything, although he seems to be a very different child in terms of temperament. X is the leader and Y is the follower at least in terms of how the family dynamics work.  I do take into account that X has expressed those wishes, but I also take into account the pressures on him that appear to have been placed consciously or otherwise by the father and, in any event, that is only one of the 14 additional matters that I need to take into account and is not in itself determinative.

18. And I think that is one of the real problems in this case – that X has been able to believe that his wishes are determinative, but it is not suggested that if he decided he did not want to go to school, that he would be allowed to stay home.  It is not suggested that if his father, for instance, said he needed to go to the doctor and he said, “No, I am not going”, that it would be impossible for the father to insist that he go.  And Counsel for the mother today has taken that instance or that issue one step further and said the father is incapable of exercising parental control in relation to X.

19. I think that is probably taking a step too far, but I think there is some issue here about the father’s ability to get X to do what he does not want to do when the father does not want him to do what he does not want to do.  I think that is the issue.  It is not a question just of X saying I want to do X, it is the father not being prepared to say, no, you cannot do X, because the father may not want X to do X.  So I do take X’s wishes into account and Y’s, for that matter, but I do not give them determinative status.

20. The other things that I need to take into account are things like the nature of the relationship with each parent and with anybody else, such as, for instance, Mr K, the mother’s partner.  It would seem that the relationship between the mother and the children is, at the moment, fractured. That has been so partly because of the father’s actions, but also because the mother has re-partnered and her partner moved in with her when the family – that is the mother and the two boys – moved out of the family home upon its sale and moved in together in a rented property.

21. There is some concern that the mother may not have given the children proper notice of that situation or consulted them in relation to that. She is not totally faultless in that sense, so there seems to be some fracture in the relationship between the mother and the boys. 

22. The relationship between the father and the boys is rock solid. 

23. The relationship between the father and the boys is an empowered relationship, one where clearly Mr Bannon loves his children.  I do not doubt that for one moment and I do not doubt also that in his conscious mind at least, he wants the very best for them.

24. I do not doubt that and it seems to be that their major relationship at this time is with their father for whatever reason.  That seems to be the case and I do take that into account. 

25. I am not going to go into child support because there is no evidence in relation to that. 

26. I need to take into account 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 children, to spend time with the children and to communicate with the children.

27. These parties do not communicate.  It is as simple as that.  They have been fighting over these children (and about how their care arrangements will work) for years.  Their care arrangements have been such that each party has, in a sense, compromised their own position so that the children spend equal time with them, and that does not seem to have worked.  But they do not participate in decisions about long-term issues because they do not communicate, and that cannot be anything but to the children’s detriment. 

28. I also need to look at the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents or from any other child or other person with whom he or she has been living.  It occurs to me that one of the real possibilities in this case is that X votes with his feet without the dissent of his father, or without the active dissent of his father, but that Y spends time with his mother.  That is a possibility in this case, and I think that would be an enormous pity if that were to happen.

29. I think Ms L said yesterday that by and large, the children should remain together and whether the children remain together and seeing their mother is in very, very great part in the hands of their father at this stage, so let us hope that there is no separation of the children from each other. 

30. The father seeks to separate them from their mother’s partner when the mother has them in her care and that is unfortunately, I think, an unrealistic view.  It may be that the mother needs to spend some one-on-one time with the children without Mr K around.  That may be a result of what she has heard from the family consultant.

31. And the family consultant said that when those matters were put to her, she showed great insight.  She was quite insightful as to those matters, although she may not have been in terms of telling the children or consulting the children or involving the children in the decision about whether she would live with Mr K. 

32. I need to consider the practical difficulty of children spending time with each parent and there does not seem to be much such difficulty in this case.  The mother has moved about 20 minutes away from where the children go to school and from where – it was put to me yesterday – the children have their social milieu, but in the scheme of things that we see in this court that is not a particularly difficult situation.

33. I need to look at the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.  That is usually considered where there are a difference in cultures between parents, such as where one parent is of a particular faith and the other is of a different faith, or where one parent comes from a particular culture and the other is from a different culture. 

34. That is not the case here, but I do need to consider both the maturity of the children and their sex.  And it is true that the children seem to have what Ms L called a natural affinity with their father because of their gender, and that is something I do need to take into account.  In terms of the characteristics of the child, well, I can’t deny or go beyond the fact that X seems to be the leader in this household.  X seems to have that quality and a characteristic of X is that he dictates the process, and I do need to take that into account. 

35. There is no evidence before me that either child has any Aboriginal or Torres Strait Islander heritage, so I do not need to consider that.

36. The next thing I need to consider is the capacity of the parents or any other person living with the children to provide for the needs of the children, including emotional and intellectual needs and I do, for the reasons that I have already said, have some concern about both parents’ capacity to provide for the emotional needs of both children.  The mother for the reasons that I said in relation to her moving in with Mr K with little or no consultation with the children, the father for the reasons that I have said about the alignment of the children with his view.  There is no suggestion that neither of the parents can take care of the children’s material needs or their intellectual needs, for that matter.

37. Then we come to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents, and I think I have also said that I have some criticism of the father in that regard.  He signed orders by consent and then six weeks later, sought to have those orders amended.  That does not show to me a child-focussed attitude to the child and to his responsibilities as a parent. Then he allowed the children to come with him when they were supposed to go with their mother pursuant to those orders.  I am not going to go into that again.  I have already said what I need to say about that.

38. I need to take into account any family violence involving in the child or a member of the child’s family and there are allegations, although they are historical now, that the mother has assaulted Y.  She denies those allegations, but they are there and I do take them into account. 

39. I need to take into account if a family violence order applies and I do not think there is one in this case, so I do not need to take that into consideration. 

40. I then need to look at whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child but this is only an interim order that I am making.

41. I cannot make findings of fact at an interim hearing.  I can only look at the evidence and see what it says and make orders that I think, on all those factors, are in the best interests of the children.  The legislation then says that I can take into account, when looking at what is in the children’s best interests, any other fact or circumstance that I think is relevant. 

42. Now, having looked at all of those circumstances, having looked at Ms B’s report, having looked at both the oral evidence of Ms L and her written evidence, (which I note unfortunately was not provided to the parties in time for this hearing and, as I said, I only noticed it when I opened the file today so the parties have not had a chance to read it) and, as I said, there is nothing in it that I can see that is contrary or different from what Ms L said in the witness box. Taking all of those things into account, and particularly the need to ensure that the children are not any further aligned with the father and separated from the mother, I make the following orders which, on the matters that I have considered, I believe to be in the children’s best interests.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 23 February 2016