JILES & AYALA

[2019] FCCA 905

FEDERAL CIRCUIT COURT OF AUSTRALIA

JILES & AYALA [2019] FCCA 905

Catchwords:
FAMILY LAW – Interim arrangements for parenting of children aged 10 & 8 years old – concerns about the safety and suitability of the father’s accommodation – assessment of risk – meaningful level of relationship with each parent – best interests – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60B, 68LA

Cases cited:

Mazorski v Albright (2007) 37 FamLR 518
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
B & B (1993) FLC 92-357

Applicant: MR JILES

Respondent: MS AYALA

File Number: SYC 5155 of 2015

Judgment of: Judge Brown

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Adelaide

Delivered on: 8 April 2019

REPRESENTATION

Counsel for the Applicant: Ms Raines

Solicitors for the Applicant: Osborne Legal

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Angela Ferdinandy

Counsel for the Independent Children's Lawyer: Ms Renshall

Solicitors for the Independent Children's Lawyer: Kathryn Renshall Lawyers

ORDERS

Until further or other order:

1. The children of the marriage [X] born … 2008 and [Y] born … 2010 (hereinafter referred to as “the children”) live with the mother.

2. The order of 5 June 2018 requiring any time between the children and their father be subject to the supervision of the father’s wife Ms A be discharged.

3. The children spend time with the father as follows:-

   (a)During school term, each alternate weekend from after school on Friday until 6.00 pm the following Sunday with the period to commence on recommence on the first weekend after school has re-commenced for term two of 2019.

   (b)The period of the school holidays and Easter 2019 be shared with the children spending time with the father from the end of school on Friday 12 April 2019 until 6.00 pm on Saturday 20 April 2019 and with the mother for the remainder of the holiday and Easter period.

4. The father have telephone communication with the children each Wednesday at 6.00 pm with the father to call the children’s mobile telephones.

5. The mother have telephone communication with the children when the children are in the care of their father at 6.00 pm each Saturday during term times and on every second day, during school holiday, at 6.00 pm, with the mother to call the children’s mobile telephones.

6. In the event that order (3)(a) coincides with Mother’s Day, unless the parties agree otherwise, the father’s time with the children is to be suspended for the weekend of Mother’s Day and in lieu thereof the children spend time with the children on the following weekend.

7. All necessary handovers to give effect to these orders are to take place between the mother and Ms A at the McDonald’s restaurant, Town B, or if Ms A is unavailable, between the parties at the Town B Police Station, subject to order (5) hereof.

8. If Ms A is unable to attend the handover, she is to give the mother twenty-four (24) hours’ notice via text message.

9. For the purpose of Orders the school holiday periods are deemed to commence after school on the children's last required day of attendance and changeovers shall occur at 5.00pm on the day the middle of the school holiday period.

10. This final hearing before Judge Brown on 18, 19 & 20 June 2019 at 10.00am in Town B is confirmed.

11. The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 21 May 2019.

12. The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 4 June 2019.

13. On or before 4 June 2019 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

14. The applicant pay such daily hearing fee as required pursuant to the Federal Circuit Court Regulations 2000.

15. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

SYC 5155 of 2015

MR JILES

Applicant

And

MS AYALA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with risk, and its assessment, in the context of two children spending time with their father in a high parental conflict situation.  Because of the complexity of the issues thrown up by the case, it has been ordered that the children concerned be independently represented.

2. Mr Jiles “the father” and Ms Ayala “the mother” are the parents of [X] born … 2008 and [Y] born … 2010.  The children currently live with their mother in suburban Town B. 

3. The father wishes to spend time, with the children, at his home, also in Town B, on an unsupervised and overnight basis.  It is the mother’s position that this would be unsafe for [X] and [Y], largely because of the nature of Mr Jiles’ accommodation.

4. The independent children’s lawyer is Ms Renshall. Pursuant to section 68LA of the Family Law Act 1975 Ms Renshall is under a statutory obligation to assess all the evidence available and following her assessment advocate to the court, what she believes is the best outcome for the children whom she represents. 

5. Ms Renshall is a diligent and highly experienced independent children’s lawyer.  At an earlier stage of proceedings, when relations between Mr Jiles and Ms Ayala were extremely fraught, she met [X] and [Y] in Sydney, whilst they were in transit between a holiday location and their home and spoke with each them, particularly in respect of the nature of their relationship with their father.  More recently again, Ms Renshall travelled to Town B to speak with the children again.

6. At this stage of proceedings, following her own interview with the children and the examination of a family report, Ms Renshall advocates [X] and [Y] spending overnight time, on weekends, with their father, at his home in Town B, without the necessity for that time to be subject to any form of supervision. 

7. From the mother’s perspective, such an outcome would represent a significant risk to the welfare of [X] and [Y].  She is particularly concerned about the nature of the father’s accommodation, which all the lawyers concerned in the case have described as a shed. 

8. The parties married, at Town D, on … 2005.  In their joint application for divorce, filed on 6 August 2015, they agree that they finally separated on 1 May 2013.  The circumstances surrounding the parties’ separation appear to have been emotionally challenging for all concerned.  Ms Ayala is a thirty-six year old public servant; whilst Mr Jiles is a tradesman, aged in his early fifties. 

9. At the time immediately after the parties’ separation, the father was living at his shed, which is located at Town B.  He first commenced these proceedings in March of 2017 seeking specific arrangements in respect of spending time with the children, specifically on weekends, during school terms and for half of each school holiday.  Necessarily this would have entailed the children sleeping overnight at his home.

10. In his initial affidavit, filed on 16 March 2017, the father described his premises as follows:

    “When we separated I relocated to a workshop we jointly owned located within a stables complex about two kilometres from what had been the family home.  It was necessary for me to relocate as the property we had resided in was a employer housing rental provided to Ms Ayala due to her position.”[1]

    [1]  See father’s affidavit filed 16 March 2017 at [13]

11. In the parties’ joint application for divorce (filed August 2015), they agreed that [X] and [Y] lived with their mother, at Town B and spent time with their father, every second weekend for two nights.  In addition, the children saw their father, from time to time, when Ms Ayala was feeding her horses, which were agisted on a property neighbouring the father’s home. 

12. The mother responded to the father’s application in late June of 2017.  She made many complaints about the father’s conduct and situation, which can be summarised as follows:

    ·He had spiked her drink, with ecstasy, in 2004;

    ·He was a heavy drinker;

    ·He was financially controlling, during the parties’ marriage;

    ·From 2007 onwards, he began to take antidepressant medication;

    ·He was disinclined to attend to the children’s practical needs, leaving all home-making and parenting duties to her;

    ·His home accommodation was unsafe for children, particularly because a spa there was not completed;

    ·[Y] had been severely sunburnt, whilst in her father’s care, which was demonstrative of his flawed insight into the responsibility of being a parent;

    ·In September of 2014, which was around about the time of the parties’ final separation, he attempted suicide by overdose and was taken to hospital by ambulance.

13. In July of 2017, the father provided a medical report from Dr E, a consultant psychiatrist, whom he had consulted since around the time of the parties’ separation.  Dr E described the father’s suicide attempt as impulsive and being reactive to grief over the loss of the relationship with his wife and his mother’s death the preceding week.

14. In this context, Dr E assessed the father as not suffering any psychiatric illness and as having a stable mental state, particularly since he had become abstinent from alcohol.  In these circumstances, Dr E could see no impediment to the father spending time with [X] and [Y].

15. At an early stage of proceedings, the parties were referred to a reportable child dispute conference, convened by a family consultant pursuant to section 11F of the Act.  This identified a number of potential risk factors, which centred on the father’s mental health; his use of alcohol; his possession of firearms; and family violence.  Issues were also raised with the family consultant regarding fire standards at the shed.  The mother also alleged the children, particularly [Y] were exhibiting signs of extreme anxiety, which she postulated may be related to some form of serious abuse.

16. In these circumstances, the court proceeded cautiously in making orders for the father to spend time with the children, during daylight hours, subject to the supervision of the father’s adult child, Ms F, from an earlier relationship of the father.  Ms F was known to and trusted by Ms Ayala.  This order was made on 31 July 2017.  Ms F, who is a young adult has now left Town B.

17. In her responding application, Ms Ayala also sought to be able to relocate the children’s place of residence from Town B to Town G.  She had no formal proposals for the children to spend time with their father.  However, in her supporting affidavit, she deposed as follows:

    “After Mr Jiles moved out of the former family home, we came to an informal arrangement where we would spend time with the children during the day over the weekend until he fixed up the stables and made it safe and secure for the children to sleep in.

    This arrangement went until about April 2015, when, it appeared that some of the repairs/renovations had been completed and I felt a little more comfortable about the children staying overnight.”[2]

    [2]  See mother’s affidavit filed 27 June 2017 at [45] & [46]

18. The issue of the mother’s relocation of the children, to Town G, a significant distance from where their father lives, remains a significant controversy between the parties.   This issue, along with other related ones, has been fixed for final hearing, for three days, in Town B, commencing on 18 June 2019.  A family report was prepared to assist the court on 28 February 2018.  Accordingly, whatever orders are made, at this stage, are likely to be in place for only a relatively short time until all significant evidentiary issues can be examined.

19. As is apparent, the final hearing of these proceedings and any reinstatement of the arrangements for the children to spend time with their father overnight at his home, as initially occurred post separations, has been much delayed. 

20. The major reason for this delay is that in September of 2017 the father was arrested, by NSW police and charged with the rape of the mother in September of 2014.  The mother made her complaint, to police, on 30 March of 2017. 

21. It was this serious charge,  which if established has obvious relevance to the best interests of the children concerned, which has led to both the children’s independent representation and the delay in these family law proceedings  being fixed for final hearing.  All concerned agreed that the family law case should be held in abeyance pending the outcome of the charges against Mr Jiles.

22. On 13 September 2017, the earlier orders for the father to spend time with the children were suspended.  In addition, whilst the serious police charges remained outstanding, it was agreed that the preparation of a family report should be delayed.  Over the Christmas period of 2017/2018, the mother and the children went on a pre-arranged holiday to the Region H of New South Wales. 

23. It was whilst Ms Ayala and the children were travelling back to Town B, via Sydney, that Ms Renshall was able to meet [X] and [Y], in Sydney.  As I recall, Ms Renshall indicated to me that both children were missing their father and wanted to spend time with him.  In these circumstances, Ms Renshall advocated for a resumption of time between the children and their father, whilst maintaining some form of supervision. 

24. In this context, on 22 January 2018, the following order was made:

    “The father spend time with the children [X] born … 2008 and [Y] born … 2010 between 3:30pm and 5:30pm on Sunday, 18 January 2018 at the McDonald’s Restaurant, Town B subject to the presence and supervision of Ms J.”

25. Originally the father had sought that the supervision required by the independent children’s lawyer be provided by his wife Ms A.  This was not acceptable to the mother.  In addition, at this time, Mr Jiles deposed that he continued to be alcohol free and to be compliant with treatment prescribed to him by his psychiatrist. 

26. The appointment of Ms J, to act as the supervisor, was a compromise reached between the parties.  As I recall, she was a person known to Ms Ayala.  It was also anticipated that the premises of McDonalds would provide an objectively safe environment for the father to spend time with the children, which was also child-centric. 

27. Ms A is a citizen of the Country K.  She and the father met in the Country K when he was visiting there.  A relationship developed between the two and she travelled to Australia to marry Mr Jiles.  She first arrived in Australia on … 2017, and the two were married, in Town B, on … 2017.  Accordingly, in early 2018, she had only a rudimentary relationship with [X] and [Y]. 

28. Ms A entered Australia on a holiday visa but has now apparently successfully applied for a spousal visa.  She currently lives with Mr Jiles in the shed.  She has obtained employment for herself in Town B.

29. The reinstated family report was released to the parties in March of 2018.  The report was prepared by Mr L, a family consultant with social work qualifications. 

30. In his report, Mr L obtained the following description of the father’s accommodation from him:

    “… This residence is an 8×12 metre shed and reportedly has mains water, air-conditioning, insulation and a separate bedroom for the children, which includes a bunkbed. He is in the process of converting two 40-foot shipping containers into residential quarters. Neither dwelling has Council approval.[3]

    [3]  See Family Report of Mr L dated 5 March 2018

31. Mr L also confirmed that, post-separation, from April 2015 until January 2017, the children had regularly overnighted at Mr Jiles’ home, an arrangement which had been instituted following the installation of toilet/shower facilities at the shed. 

32. Mr L reported that [X] is a child with special needs.  He was diagnosed with ADHD, in early 2016 and received medication for his condition.  More recently, he has been assessed as having high functioning autism or Asperger’s syndrome. 

33. Controversy has also surrounded [Y]’s presentation from time to time.  Her mother has reported that the child has been self-stimulating, which has raised concern about possible sexual abuse.  On the other hand, the father has opined that this behaviour is due to thrush. 

34. At this stage, I am not in a position to make any definitive findings, in respect of this issue (if indeed it is possible to make any such finding) other than that the controversy is indicative of a deep level of mistrust between the parties.

35. In interview, with Mr L, Mr Jiles presented as opposed to the children’s proposed relocation to Town G.  On the other hand, Ms Ayala, for obvious reasons, saw the relocation in positive terms and questioned, with Mr L, whether the children gained any significant benefits from maintaining a relationship with their father. 

36. At the time of Mr L’s interview with them, [X] was just over nine years old, whilst [Y] seven and a half.  Both children readily engaged with Mr L and were able to respond clearly to him, without any obvious indication of coaching or influence from any other individuals. 

37. Mr L summarised his interview with [X] as follows:

    “[X] was interviewed alone. He readily engaged, presented as age-appropriate, albeit was of short stature, with negligible signs of autism. From his utterances and demeanour there was no indication that he had been coached or coerced.

    He expressed feeling sad at parental separation and the fact that his parents cannot talk to each other. For some unknown reason his mother, who used to be fine with sleepovers, had now changed her mind.

    [X] unequivocally stated that he wanted each weekend with his father and that Ms Ayala was aware of his position. This included special occasions such as Father’s Day. He likes Town B and has various friends.

    [X] stated that Mr M seldom plays with him as he is always working on his house, in contrast to Ms A, whom he considered as being nice.

    He wished that his parents had never broken up, would reconcile, and for his mother to love his father. The most important thing he wanted the Judge to know was that he wanted more time and that this included sleepovers.”[4]

    [4]  Ibid at [73] – [76]

38. Mr L summarised his interview with [Y], in the following terms:

    “[Y] recalled having fun times with her father and brother in the shed. She felt sad that her mother does not talk to her father nor likes him. [Y] had no concerns about being in her father’s care and spontaneously volunteered that she wants more time, including sleepovers with him. She would not venture as to how much time but that she wanted sleepovers to start again. Her mother knows how she feels. She loves both parents.

    It was [Y]’s understanding that she does not see so much of her father as her mother does not trust him and the horses are no longer there on the property. [Y] clarified that her feelings of being sick in the stomach were as a result of leaving him and not as a consequence of being anxious prior to time spending. If/when she vomits it is because she has eaten food such as Tim Tams.

    [Y] expressed concern that her mother would get angry at her for her disclosures to the report writer. Upon exploration, her concern was generalised with no specific threat identified. Essentially, [Y] did not want to get into trouble from her mother. She indicated that while her mother may feel sad about her wanting sleepovers again it was okay for the writer to tell the Judge to this.”[5]

    [5]  Ibid at [78], [79] & [80]

39. Ms Ayala has also re-partnered.  Her partner is Mr M.  [Y] shared her brother’s views regarding Mr M but similarly thought that Ms A was nice.  It is my perception that, throughout 2018, Ms A has been a positive influence in easing the difficult relationship between the parties. 

1. Mr L observed positive interactions between the children and both their mother and father.  The children were described as being spontaneous, happy and animated with both their father and Ms A.  Ms Ayala was described as child focussed and nurturing. 

2. As previously indicated, the issue of the mother’s relocation to Town G remains highly controversial.  Relocation cases are amongst the most difficult, which the court has to determine, involving as they do, the potential for relationships between children and one of their parents to be significantly altered by distance.  For obvious reasons, significant distance between a parent and a child can prevent the two acting with sufficient frequency to maintain such relationship at a meaningful level. 

3. The issue of relocation is not for determination in these proceedings, which remain focussed on time spending arrangements pending final hearing.  However, the potency of the issue is likely to act as an impediment to settlement discussions.  In my experience, cases involving a relocation element are not generally amenable to consensual outcomes. 

4. In addition, in my experience, it is a common misconception that the weaker the parental relationship involved the more likely it is that relocation will be approved.  As the High Court has pointed out, every relocation case is unique, and as such, requires its own idiosyncratic consideration. 

5. As such, in some cases, a factor militating against relocation, may well be an impaired parental relationship between the child proposed to be moved and the parent, who will be left behind.  In such cases, it may be considered beneficial, for the child involved, for the relocation to be deferred, whilst the parental relationship in question is fostered rather than exposed to potential further deterioration, as a consequence of the exigencies of distance. 

6. Other factors, which may be relevant to issues of relocation, is the capacity of the parent proposing to move to support a relationship between the child concerned and the other parent over distance.  The complexity of these issues compound with the distance involved; the frequency of contact, which is logistically feasible; and the age of the children concerned.

7. Relocation cases are fundamentally difficult because they raise competing and conflicting principles of law.  On the one hand, children have the right to benefit from having a meaningful level of relationship with each of their parents.  Distance can have a corroding influence on parent/child relationship.

8. On the other hand, the court is not in a position to ignore the entitlement of all citizens, in Australia, including parents, to live how and where they choose, without unnecessary interference from the other parent from whom that parent has separated.  These are just some of the issues, which are likely to confront the court in the current matter. 

9. On balance, Mr L did not favour [X] and [Y] moving away from their father in Town B.  In this context, he opined as follows:

   “With regard to future directions the writer assesses that on the balance of probabilities it is in the children’s best interests for relocation not proceed to Town G. There is more to be gained by having both parents intrinsically involved with the upbringing of the children, notwithstanding the distrust and discord experienced by the parents. It would be prudent for both parents to contain acrimony, have open and effective lines of communication, adopt a businesslike approach to co-parenting and model effective problem-solving strategies.

   In summary, it is assessed the benefits to the children of having a relationship with both parents outweigh the risks.”[6]

   [6]  Ibid at [113] & [114]

10. Mr L formed a favourable impression of Ms A, from his interview and observations of her.  As such, he had no concerns regarding her potential to be a supervisor of the children’s time with their father.  Her role was significant given the rape allegations, against Mr Jiles, at the stage of the family report, remained outstanding.

11. There was also the issue of Mr Jiles’ accommodation, which Mr L described as vexed.  Mr L conceded that Mr Jiles faced financial constraints in ensuring his premises were compliant with council regulations.  However, in this context, he wrote as follows:

    “Lack of compliance regarding building applications give rise to the notion that sleepovers have more of a tenting/camping feel to it rather than a regular or routine secure and stable dwelling. Given the uncertain nature of safety issues it is advisable to err on the side of caution and restrict any sleepovers but facilitate daytime-spent until Council approval is obtained.”

12. Overall, Mr L recommended as follows:

    ·The parties have equal shared parental responsibility for [X] and [Y];

    ·The relocation to Town G not proceed;

    ·Until issues regarding building compliance were adequately addressed, the children have copious amounts of day-time spending with their father and once compliance reached alternate weekends and half of each school holiday periods be considered;

    ·If Mr Jiles was found guilty of Ms Ayala’s rape, there be further consideration of the case. 

13. During 2018, the father began to spend time with the children, on alternate Sundays, from noon until 6:00pm with Ms A providing supervision and undertaking the handover, with Ms Ayala, at McDonalds in Town B.  Arrangements were also agreed upon for the father to spend some longer day-time periods, with the children, during school holidays. 

14. On 7 January 2019, the Director of Public Prosecutions for New South Wales determined not to proceed with the rape charges against Mr Jiles.  Concurrently with this decision, the police withdrew the apprehended domestic violence order against Mr Jiles.  Ms Ayala provided a statement in support of this application. 

15. In her statement, Ms Ayala deposed that she had had very few issues with the father since the order had been made and she now felt safe, as she perceived that she would no longer be the subject of any harassment from Mr Jiles. 

16. It is in the context of these significant changes of circumstance that Mr Jiles has brought his current application, which is to spend an extended weekend, with the children, as well as some periods during school holidays, which can take place at his home and without any need for the supervision of Ms A, who has recently obtained employment at a employer in Town B.

17. As previously indicated, Ms Renshall supports this application.  In anticipation of the final hearing, she recently travelled to Town B, where she once again interviewed [X] and [Y].  As with her initial interview with them, and indeed as was the case with Mr L, both children reiterated their desire to spend more time with their father.  The children described their father’s accommodation to Ms Renshall as having insulation and proper cooking and toilet facilities, as well as bunk beds for the children themselves. 

18. Ms A has also provided an affidavit in support of the father’s application.  It is her case that much of her work is casual in nature and, given she works in customer service, she is subject to being called in at short notice.  Her income is important to the support of the family.  In these circumstances, it is difficult for her to commit to be a supervisor for lengthy periods of time. 

19. It is further her evidence, supported by Mr L’s observation, that she has formed a close bond with the children, particularly [Y].  As is to be expected, she has a positive view of the children’s relationship with their father.  She describes the shed as follows:

    “The home is of iron construction, it is insulated and lined.  There is air conditioning, a shower and toilet.  The house has all of the necessary amenities.  I am aware that the property is solely in Mr Jiles's name. I am also aware that Ms Ayala, Mr Jiles and the children lived here during their relationship.  We have made sure that there is room for the children to stay with us, including having a bunk bed for the children and plenty of toys and games for them.  The children have never raised an issue previously with sharing a bedroom.”[7]

    [7]  See affidavit of Ms A dated 4 April 2019 at [14]

20. To the credit of both women involved, Ms Ayala describes the handover arrangements which occur between her and Ms A as having worked well.  She also acknowledges that she has some faith in Ms A’s capacity to care for the children.  A trust which she did previously have in Mr Jiles himself.  As previously indicated, it is my view that Ms A has been a positive influence in this case. 

21. Counsel for the mother, Mr Robinson forcefully argued, on the basis of a continuing lack of council compliance for Mr Jiles’ accommodation, that Mr Jiles’ time, with the children, should continue to be confined to daylight hours and subject to some form of supervision.  In this context, he placed particular weight on the recommendations of Mr L and asserts that the accommodation issue is one for final hearing. 

22. In my view, in this context, it is relevant to point out the following matters:

    ·Ms Ayala agreed to the children spending time, at the shed, for an extended period of time, after the parties separated;

    ·In the early part of the proceedings, her concerns centred on the spa;

    ·She has not alluded specifically to any aspect of the shed, which currently causes her concern, in structural or safety aspects;

    ·The children themselves have not expressed any concern about the shed and there is no evidence, apart from [Y]’s sunburn, to indicate that they have ever come to harm there.

23. At the present time, Ms Ayala deposes that she suffers from stress and anxiety, which she asserts is worsened by any contact with the father.  She is currently waiting to re-engage with a psychologist to assist her with her anxiety.  In these circumstances, she is prepared to deliver the children to their father’s home, provided Ms A collects them.  Her preference would be to keep arrangements as they are. 

24. At present, her concerns regarding the father’s accommodation centre on the fact that it does not provide sufficient privacy, for the children, whose living area is separated from the father’s living/sleeping quarters by on a curtain, rather than  on structural issues per se. 

The legal principles applicable

1. Although the nature of the hearing at the interim, as opposed to the final hearing stage, is different, the same legal principles apply. The court is directed to ensure that whatever order is made it will serve the children’s best interests [see section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

3. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

4. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

5. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

6. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

7. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

8. The theoretical underpinning of the Act, provided by its principles and objects, contained in section 60B, emphasise the need for parents to agree about the future parenting of their children and share parenting responsibilities jointly.

9. These principles also recognise the rights of children to know and be cared for by both their parents, regardless of whether those parents are married, separated or have never in fact lived together, whilst at the same time ensuring the protection of children from coming to either physical or psychological harm, as a consequence of being exposed to abuse, neglect or family violence. 

10. It is essentially Ms Ayala’s position that Mr Jiles is a negligent parent, who lacks insight into providing a safe environment, for children of the vulnerable ages of [X] and [Y].  On the other hand, it is the father’s position that the children will receive incomparable benefits, from being able to interact, with him, for reasonably extended periods of time and in a variety of environments, including that provided by his family home.

11. Meaningful is an ordinary English word.  It is not specifically defined in the Family Law Act. Benefits is also a common English word.  It means a favourable or helpful factor or circumstance; advantage, profit.[8] 

    [8]  See the Australian Oxford Dictionary

12. In Mazorski v Albright[9] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.  Accordingly, the emphasis in this case must be on the benefits, which Maxwell is likely to derive, from having a meaningful level of relationship with both his father and mother.

    [9]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

13. In my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives.  A child’s life is, by necessary definition, every activity in which the child takes part.  Literally, it means the child’s existence, as an individual. 

14. Within the family law context, the word meaningful, therefore takes its definition from the context in which it appears, within the Act, particularly the Act’s overall objective and principles, which emphasis the duality of the roles of parents in their children’s lives and care. In this setting, in my view, it is significant that section 60B(1)(a) speaks of the Act ensuring, consistent with the best interests of the child concerned, the involvement of parents to the maximum extent in the lives of their children.

15. The aspects of a child’s life, in which a parent can be meaningfully involved, are therefore multifarious.  They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. 

16. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.  It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them.

17. The question of beneficial relationships is not to be considered in a retrospective sense.  Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.  I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them. 

18. A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”. 

19. It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned, in a variety of aspects of the life of the child concerned. In my view, it is significant that the legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.

20. On the other hand, the mother urges the court to examine the various controversies arising in this case from the perspective of the need to protect the children from coming to harm.  As previously indicated, protective concerns are to be given greater weight. 

21. However, at the same time, in my view, this does not mean that issues pertaining to the potential beneficial aspects of parental relationships, for children, are to be ignored.  Accordingly, at this stage, the task for the court is to assess risk.  Necessarily, at the interim stage where the hearing concerned is truncated, this must be a difficult task.

22. In Deiter & Deiter[10], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [10]  See Deiter & Deiter [2011] FamCAFC 82

23. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

24. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to potentially unsafe accommodation or to the sexual activity of a parent.

25. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’.  It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[11]

    [11]  Slater & Light [2013] FamCAFC 4 at [37]

26. Risk can cut two ways.  It may be detrimental, for [X] and [Y], to curtail a relationship with the potential to be meaningful for them by some unnecessary or artificial level of restriction on it, arising from some imprecise or uncertain allegation of risk. 

27. I also acknowledge that the mental resilience of Ms Ayala herself, as the children’s primary provider of care, may be relevant to the appropriate orders to be made in this case.  The Full Court has recognised that a primary carer’s anxiety may adversely impact on that parent’s capacity to care for a child.[12]

    [12]See B & B (1993) FLC 92-357 at 79,780

Discussion

1. With these considerations in mind, I now turn to the relevant criteria, arising under section 60CC, relating to the children’s best interests, bearing in mind the strictures resulting from the abbreviated nature of the hearing before me, which precludes me making any definitive findings of fact, in the face of evidentiary controversies.

1. On the basis of Mr L’s report and the submissions of Ms Renshall, I accept that the children are likely to derive significant and manifold benefits from having a meaningful level of relationship with their father.  As such, the maintenance of these relationships are central to any consideration of [X] and [Y]’s best interests, both now and into the future. 

2. The allegations of family violence, arising in this case, are complex, given that they have arisen over many years and have resulted in the significant involvement of the authorities, which led to Mr Jiles being charged with a serious indictable offence.

3. I acknowledge that the standard of proof, relevant to the establishment of family violence, in this court, is significantly less onerous than that applicable in a criminal proceedings.  However, at the same time, I cannot overlook the fact that the proceedings have been discontinued and Ms Ayala herself has played a role in the dismissal of the apprehended violence order against Mr Jiles.

4. In addition, in my assessment, given the significant period of time, which has elapsed since the parties’ separation, when coupled with the involvement of Ms A in the familial dynamic, the prospect of the children being exposed to any future incidents of family violence is remote in nature.  In addition, I do not understand that it is the mother’s case that she alleges there is a significant risk that Mr Jiles would abuse either child. 

5. Accordingly, the essential task for the court is to assess the risk, which arises, as a consequence of the children coming to some form of harm because of some act of inadvertence or negligence on Mr Jiles’ part.

6. I am not a building expert.  There is no specific evidence, of an expert or structural nature, regarding Mr Jiles’ shed.  It may very well be a ramshackle structure, which needs a great deal more work.  The question for the court, is whether the dwelling itself represents a risk, for [X] and [Y], which would be unacceptable for it to take. 

7. At this stage, this question is incapable of a definitive answer.  No environment can be rendered completely risk free.  I must look to what has happened in the past and the risk of something happening in future.  This risk must be balanced against the risk of the children not being able to have a normal and unstilted relationship with their father.

8. In my view, the risks propounded by Ms Ayala are inchoate and imprecise.  Thankfully, up to this stage, neither child has suffered any injury, of significance, whilst in their father’s care.  More significantly, in my assessment, Mr Jiles is not the sort of person who would willingly expose either of his children to any obvious form of risk. 

9. Ms A seems to be a person with an engaging personality.  She has secured the trust of Ms Ayala, in what must be regarded as challenging circumstances.  She has also been able to forge what appears to be a positive relationship with each of the children. 

10. Her acceptance of the father’s home environment and her willingness to live in it, in my view, must be regarded as a strong prophylactic factor in regards to the degree of risk arising in this case.  In addition, her financial contribution to the father’s household is a further factor adding to its growing stability.

11. In his affidavit material, Mr Jiles has provided a number of photographs of him, Ms A and the children, engaging in activities at both the local swimming pool and at the shed.  I appreciate that a photograph must be regarded as a frozen moment of time, which cannot report on what was happening either before or after it was taken. 

12. I also acknowledge that photographs are necessarily selective and dependent upon the subjective judgment of the person pointing the camera.  The shed appears to be Spartan in nature but providing of the basics of shelter and protection from the elements, which the children require.  The important factor in my view is that Mr Jiles will be present in the shed to provide supervision for the children.

13. In all these circumstances, in my view, it would not represent an unacceptable risk, for either child, to spend overnight time, with the father, at the shed.  More importantly, in my view, the opportunity to do so would be beneficial for the children, as it is likely to enhance the level of meaning in their relationship with their father. 

14. Mr L’s report, untested though it may in respect of both its methodology and the accurateness of its observation, strongly points towards [X] and [Y] having a very significant relationship with their father, whom they know well and love. The children are clearly comfortable in his presence and indeed in the presence of Ms A. In my view, this is a very significant factor [see section 60CC(3)(b)].

15. In addition, the relevant legislation requires the court to give weight to any views expressed by the children concerned. The weight to be given to any such views being dependent upon the age and insight of the children concerned [see section 60CC(3)(a)].

16. In this particular case, the children’s views have been canvassed not only by the court appointed expert, but also Ms Renshall who spoke with them recently.  [X] is now ten years of age; whilst [Y] is eight.  As such, in my view, the children are of sufficient maturity to justify their preferences being accorded a significant degree of weight, particularly given that they know their father well and have themselves a significant sense of familiarity with where he lives.  Both children have been visiting the shed for many years. 

17. The issue of the mother’s proposed relocation to Town G remains difficult and problematic.  In my view it is the most potent factor retarding the parties from being able to reach any consensual outcome in the case.  As such, it is more likely than not that the case will have to proceed to a final hearing, in approximately two and a half months’ time. 

18. This is not a long time frame in the greater scheme of things.  As such, in my view, it will be useful for the court, pending the resolution of the parties’ competing applications, to extend the time and circumstances in which the children interact with their father. 

19. Necessarily, if ultimately the court does approve the children moving away from Town B, with their mother, it will be necessary for [X] and [Y] to interact with their father, for longer periods of time, during school holiday periods, given the significance of the relationship, which they share with their father.  This is a reason to commence such extended time sooner rather than later.  It is not intended to be any endorsement either for or against the proposed relocation.

20. For all these reasons, I propose to make orders essentially in accordance with the father’s application in a case, filed on 20 February 2019.  In my assessment, it is likely to be in the children’s best interests to commence a regime of longer periods of time, with their father, during both school terms and holidays.

21. The time can commence on Friday afternoon and conclude on Sunday afternoon on alternate weekends.  I will also make orders directed towards the children spending some time, over the Easter period with their father.

22. Arrangements for handover will continue to be problematic.  Ms A is the preferred agent in order to facilitate the children’s exchange as she has secured the trust of Ms Ayala, whilst Mr Jiles has not.  However, I also appreciate the importance of Ms A being able to maintain her employment. 

23. In these circumstances, I propose that Ms A, whenever possible facilitate handovers, either at the father’s home or McDonald but when she is not available the handovers take place at the Town B police station between the parties themselves.  It will be necessary for Ms A to give Ms Ayala twenty four hours’ notice of this by means of text message.

24. This is not a case in which the presumption of equal shared parental responsibility is applicable.  It is not appropriate for the presumption to be applied at the interim stage, particularly given the final hearing is imminent.

25. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     8 April 2019