JILLET & MURDOCH

[2016] FamCA 1184

FAMILY COURT OF AUSTRALIA

JILLET & MURDOCH [2016] FamCA 1184

FAMILY LAW – CHILDREN – Interim parenting – Where the mother has not permitted the children to have any further contact with the father unless supervised since November 2015 – Best interests of the children – Unacceptable risk of harm – Allegations of exposure to physical and sexual abuse – Supervised time by the father with the children – Parental responsibility – The benefit of a meaningful relationship with both parents – The need to protect the children from physical or psychological harm.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DA

Deiter & Deiter [2011] FamCAFC 82 George & George [2013] FamCAFC 182 Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 at [26] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; SS & HH [2010] FamCAFC 13
APPLICANT:	Mr Jillet

RESPONDENT: Ms Murdoch

INDEPENDENT CHILDREN’S LAWYER: Brian Samuels & Assoc

FILE NUMBER: PAC 5266 of 2015

DATE DELIVERED: 9 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: MMD Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuels & Assoc

Orders

1. Pending further order, the children B born … 2011 and C born … 2012 (“the children”) shall live with the mother.

2. Pending further order, the father shall spend time with the children supervised by D Contact Centre (“the Contact Centre”) for a period of at least two hours per fortnight to commence as soon as the Contact Centre is able to offer such supervised time.  In the event that the Contact Centre is able to offer weekly time of at least two hours per occasion, the father shall spend such time with the children as soon as that time becomes available.

3. The mother shall take all steps required of her to facilitate the children spending time with the father pursuant to order (2), including delivering the children to the Contact Centre as required.

4. The cost of supervised contact by the Contact Centre shall be paid equally by the parents and as required under the Contact Centre rules.

5. Both parties are restrained from:

   (a)       Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

   (b)       Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so.

6. The mother is to notify the father forthwith of any significant illness, physical injury or medical condition suffered by either child or as soon as practicable in the case of an emergency.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Jillet & Murdoch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 5266  of 2015

Mr Jillet

Applicant

And

Ms Murdoch

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father of two children has not spent time with them for nine months and seeks interim orders for time to commence. Ideally, he would like to spend time with the children every second weekend and on special occasions though he accepts that due to circumstances in which he ceased spending time with them, supervision is appropriate. Accordingly, he seeks to spend limited supervised time with the children at a contact centre and this proposal is supported by the Independent Children’s Lawyer (“ICL”).

2. It is the mother’s contention that the children have been traumatised by an incident or incidents that have occurred while the children were in the father’s care. She seeks orders that the father’s interim application for time with the children be dismissed and that an order be made that the father to spend no time with the children and that she have sole parental responsibility for them.

3. The question for me to determine is which of the interim proposals are in the best interests of the children.

Background

1. The father, who is 49 grew up in the Netherlands. The mother is 40,. The parties were married in 2010 and have two sons, B, who is five, and C, who is three.

2. The family lived in Australia until December 2013 and in January 2014 moved to Africa, as I understand it, in connection with the mother’s employment.

3. There is a dispute between the parties about the level of the father’s involvement in the care of the children. The father contends that he was extensively involved in their care and at times was their primary carer. This is disputed by the mother, though she concedes that at times the father cared for the children during the day while she was working.

4. The parents separated in October 2014 in Africa and the two boys moved with their mother to Australia. The father also returned to Australia and both households were in Melbourne.

5. In December 2014, the father spent time with the children unsupervised on a number of occasions. On one of these occasions there was an incident which the father describes as “a small but very unfortunate fall” from which B received a swollen and painful knee and ankle. It is the mother’s contention that the child was unable to bear weight on his foot following this incident and that she sought medical advice and was informed by the doctor that the injury did not match the father’s description of the accident. Following this incident, the mother insisted that she supervise the father’s time with the children on a number of occasions. The father did not agree that supervision was necessary, but submitted to it on the basis that the children would otherwise have missed out on spending time with him due to the mother’s requirements.

6. From December 2014 until September 2015, the father spent time with the children for approximately five hours per week in total on Wednesday afternoon and Sunday morning. The father’s time with the children occurred in a public place such as a park, library or cafe as these were requirements that the mother put in place, though the father does not concede that they were necessary.

7. There was a further incident involving B when he was in his father’s care in March 2015. The father says that the child bumped his head on a piece of playground equipment and received a lump and bruising. Following this incident, the mother only allowed the children to spend time with their father in the presence of either herself or another adult as supervisor.

8. In May 2015 the mother says that after the children spent time with the father she noticed fingerprints on C’s bottom, which she contends resulted from a non-accidental incident.  The father denies that he has ever deliberately harmed the children or that he is neglectful.

9. From June to October 2015 the father voluntarily undertook a parenting course.

10. In September 2015 the mother travelled to Sydney for an employment opportunity and then advised the father that she would be moving with the children to Sydney.

11. In October 2015, the mother moved permanently to Sydney with the children.  The father left his employment and moved to Sydney later that month.

12. On 31 October 2015, the mother alleges that following the father’s time with the children she observed bruising on the back of C’s legs and buttocks.  She claims that the child subsequently made a disclosure to the effect that the father had hurt his penis and bottom. The mother took the child to a hospital and a notification was made to the Department of Family and Community Services (“Community Services”). The father has not spent any time with C since this date.

13. The mother and children attended Community Services on 5 November 2015 and the boys were interviewed. Neither made any disclosure of concerning behaviour about their father. The father was also interviewed with respect to the notifications. Further investigations into the allegations were carried out including an assessment by a doctor from the Child Protection Unit. The doctor apparently expressed the view that the bruises were not consistent with the father’s suggestion that they were sustained while he was playing on a seesaw but did not find that the allegations of non-accidental injury could be sustained.

14. The father spent time with B for the last time for one hour on 13 November 2015.  Since that time the mother has not agreed to the father spending time with the children unless such time is supervised and they have not been able to reach agreement about a supervisor.

15. The parties divorced in January 2016 and in the same month the father filed an Initiating Application in the Federal Circuit Court including an interim application to spend time with the children.

16. On 3 March 2016, C was referred by a general practitioner (GP) to the same psychologist who had previously seen B concerning an assessment and treatment of symptoms related to an adjustment disorder.

17. Numerous Risk of Harm notifications were made to Community Services in March 2016 alleging that the children have disclosed further complaints about the father.

18. In April 2016, the mother filed a Response seeking orders that the children’s time with the father be “as determined by the Court” and that they have Skype communication with him twice per week.

19. Pursuant to court orders, the parties were required to complete intake procedures at a contact service, an ICL was appointed and the proceedings were transferred to the Family Court.

20. The family were seen by a Family Consultant in a Child Dispute Conference on 12 April 2016.

The Contested facts

1. In addition to the uncontested facts, the Court may have some regard to the matters in dispute.  In SS & AH[1], their Honours in the Full Court said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   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.

4. The mother contends that she had concerns about the father’s parenting capacity when the parties lived in Africa.  She alleges that the father neglected the children when in his care and they showed signs consistent with emotional trauma and physical neglect after having been cared for by the father for a few days shortly prior to separation. In her affidavit, the mother also makes generalised allegations about the father’s neglect and says that on one occasion he did not take B to a doctor in a timely fashion to receive medical attention for a serious condition.  Although these allegations are not dealt with directly in the father’s affidavit, he makes a general denial of harming the children on any occasion.

5. The only evidence supporting the contention that the children have been harmed by the father is contained in a report of the psychologist to whom each of the children were referred. The psychologist’s diagnoses that each of the children are suffering from an “acute stress disorder” are based entirely on information given by the mother and assessment sessions with each of the children in the presence of their mother. The psychologist is of the opinion that the children have been exposed to a traumatic event and it appears that she believes that the father is responsible.

6. The mother’s other main contention is that there is an unacceptable risk that the children may be sexually abused while in the father’s care. The mother’s concerns in this regard are based upon observations, including bruising on the children’s bodies and disclosures which she alleges have been made by the children over time. The father denies each specific allegation made by the mother and doing anything untoward of a sexual nature towards the children.  He contends that there is no risk of harm on this basis posed by him.

7. The mother alleges that C first made a disclosure to her to the effect that the father had hurt his penis and bottom after she questioned the child about the bruising on his legs and thigh on 31 October 2015. The child was almost three when he was said to have made this disclosure. Both children were subsequently interviewed by Community Services and no disclosures were made by either of them. It was concluded by Community Services that there were “no harm or risk issues” in the course of this investigation.

8. The mother next alleges that on 1 March 2016, while she was dressing C, B leant over the couch and spread the cheeks of his bottom and said “daddum, look at my bottom”. (“daddum” is apparently the word that B uses with reference to his grandfather). She says that B said “papa wanted to see my bottom, I told papa no, so papa showed me his bottom.” [Papa is apparently the name the children use to refer to their father]. The mother says that C then screamed with his fists clenched and said “papa wanted to see my bottom and it made me very angry.” The mother described C as visibly upset and says that that night the child slept with her, had a disturbed sleep and wet the bed which is very unusual for him. As well as reporting this matter to Community Services the mother took C to a GP and obtained a referral to the psychologist that B had previously seen.

9. The mother also alleges that in the course of a conversation on 8 March 2016 when B was talking about a friend, K, he made various comments including “papa can’t kill [K], he can’t kill our friends”, “papa can’t come to our house in the night time?” and “papa is going to get in big trouble for doing bad things.” She said that the children were difficult to settle on this day and appeared distressed.  Later that evening B said

   I remember we rode our bikes to the park and met papa and we said bye-bye mama see you soon and then you came back to pick us up. We got in papa’s red car and went to papa’s house and we played with a puzzle on the floor. Papa showed me his sword. He put his sword in my face and I didn’t like it.

   She says that C also said “papa put his sword in my face” and B described the sword as “disgusting”. The mother also reported these statements to Community Services.

10. The mother says that the children have occasionally since then talked about “papa’s sword” and on one occasion when talking about the sword B said “papa said keep my secret”.

11. The mother also says that on 24 March 2016, when driving with the children she heard C say “papa’s … [foreign word for penis] was stinky wasn’t it [B]”. When she questioned the children about that comment they did not comment any further.

12. On 27 March 2015, the mother claims that B woke up very distressed and was sobbing and calling out “save me save me mamma”. She says that after she calmed B down she asked him what was wrong and B said “papa put his sword in [C’s] bottom” and that this happened at “daddum’s house”. The mother reported this conversation to Community Services.

13. The Magellan Report prepared by Community Services contains a Departmental Assessment of the various notifications made by the mother. However, the most recent disclosures in March 2016 did not lead to any further interviews with the children or other investigations.  An assessment was made that the children are “safe” on the basis that the mother was not allowing the children to see their father.

14. The mother also says there have been ongoing disclosures by the children after the Magellan Report was prepared.  According to her, in the course of a Skype telephone call on 24 April 2016, the following conversation occurred:

    [B] said: Papa do you still have your sword, or have you thrown your sword in the bin?

    [C] said:         Did you through your sword in the bin Papa?

    Father said:    Dinosaur, I don’t have a dinosaur.

15. The mother also says that in the course of a conversation on 10 June 2016, C said “if papa touches my [penis] again, I will tell you” and asked, “Papa can’t kill anyone can he?”

16. According to the mother, in the course of a Skype conversation on 25 June 2016, C asked the father whether he still had is sword and complained after the phone call that “papa has not even said sorry” and later that night had nightmares in his sleep.

17. On 20 July 2016, the mother says B made another disclosure in the middle of the night when he woke up worried. She claims that he referred to papa hurting “your boys with his sword on his bed and he still hasn’t said sorry” and also told her that papa said “don’t tell anyone or mama will die.”

18. The mother took the children to a paediatrician for an assessment in May and June 2016. It is clear from the reports attached to the mother’s affidavit that she provided information to the paediatrician concerning both children’s development and behaviour. The mother told the paediatrician that she suspected that B had been exposed to the traumatic experiences of witnessing or receiving physical and sexual abuse from the age of two and a half which continued periodically for 12 months when in the care of the father. The paediatrician noted that B has a recognised speech delay but said that he was in good physical health. She noted the mother’s reports of exposure to traumatic events in the care of his father and said she was “concerned about the impact on B’s emotional health and wellbeing with resumed contact between B and his father.”

19. So far as C is concerned, the mother raised with the paediatrician particular concerns about his anger and emotional regulation which the mother reported had also been seen at day-care.  The paediatrician expressed the view in her report that given the information that had been provided to her by the mother, she anticipated that C’s reactions “are in keeping with a child who is processing the experience of trauma”. The mother gave the same history of concern that the child had been exposed to traumatic experiences of witnessing or receiving physical and sexual abuse from the age of 23 months, which continued periodically for 12 months when in the care of the father. The paediatrician made similar recommendations with respect to C as she had made for B. She emphasised that the focus should be on “carer support and maintaining safety” and said that this meant ensuring that the children were not exposed to situations of risk. In particular, she said that the children should avoid “any unsupervised contact with potential perpetrators”.  

20. Clearly, the allegations made by the mother that there is an unacceptable risk that the children have been sexually abused by their father are of the most serious order and any proposal for a resumption of the father’s time should be approached with caution.

1. However, in assessing the likelihood of the events having occurred, I note that all of the disclosures are said to have been made to the mother alone and no disclosure was made by either child to officers of Community Services.  Further, the recent disclosures have been made many months after the children last saw their father.  I approach any disclosure said to have been made by a three year old, relating an event remembered after many months with particular caution. 

2. So far as the severity of the impact caused by these events is concerned, I note that even the health practitioners who have provided reports to the mother including opinions that the children have been exposed to a traumatic event in the care of the father, do not opine that it would be in the children’s best interests for there to be no contact with their father. Both the psychologist and the paediatrician caution against unsupervised time but do not recommend that the father have no contact with the children.  

3. On the basis that the father is seeking limited supervised time only, I am of the view that the risk posed by him, to the extent it can be assessed at this stage, is not of such a magnitude that requires that he spend no time with the children.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:

   ·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

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include:

   ·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

   ·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

   ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. These proceedings have been on foot for almost a year, but little progress has been made. On the last occasion, the parties agreed to orders appointing an expert for the purposes of preparing a report. I understand that a report should be available in around November 2016. As it appears unlikely that the matter will resolve without a final hearing, it is likely that the interim orders will be in place for many months.

6. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.  For the reasons given, matters of risk arising from the contested facts must also be considered.

Parental responsibility

1. In this matter, the mother seeks an order for sole parental responsibility for the children on an interim basis, while the Independent Children’s Lawyer and father do not seek any interim order with respect to parental responsibility.

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child. 

3. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

4. Under s 61DA(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.

5. The presumption does not apply if:

   ·There are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)); or

   ·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

6. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption as so many critical facts relating to the children’s best interests are unknown or in dispute (s 61DA(3)).

7. As the presumption of equal shared parental responsibility is not being applied in these circumstances, the statutory consequences do not follow.

8. The mothers proposal for an order that she have sole parental responsibility and the orders in relation to the father’s time are concerned, involve a consideration of the matters set out in s 60CC.

Best interests of the child: s 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in subsection (2), 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.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

The benefit of a meaningful relationship with both parents

1. Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

2. This consideration has not been interpreted by the Full Court as creating a presumption that the children will receive a benefit from having a meaningful relationship with both parents. Rather, the focus of the enquiry is upon whether there is a benefit to the children of sharing a meaningful relationship with both parents.

3. There is no dispute between the parties that when the family was intact the father played an important role in the care of the children.

4. It is highly likely that a court would conclude that there is no benefit to children sharing a meaningful relationship with a parent who has been physically and sexually abusive or had grossly neglected the children, or if there is an unacceptable risk as to those matters.  However, this is the central matter in dispute which has not been tested at this stage.  I am not satisfied that the concerns raised in the evidence are sufficient to support a finding at this stage that there is no benefit to the children in having a relationship with their father or that he should play no role in decision making concerning them.

5. The orders that the father proposes for his time with the children, combined with the orders already in place for his communication with the children, are very limited and would not support a “meaningful relationship” in the sense given to that expression in the case law as discussed. However, the orders he proposes would mean that the children will receive the benefit of having some form of a relationship with him, which would be precluded in the event that an order for no time is made as sought by the mother.  The mother’s proposal for sole parental responsibility would also oust him from decision making for the children.

6. I am of the view that having regard to the children’s age, the period which has elapsed since they last saw their father and the period of time over which these interim orders will operate, there is a real risk that the children’s relationship with their father will be completely extinguished by the time the final parenting proceedings are heard if no order is made for them to share some time together.

The need to protect the children from physical or psychological harm

1. This consideration is clearly a very significant matter in these proceedings and undoubtedly will assume great significance at the final hearing.

2. As noted earlier, the allegations of abuse and neglect and associated risk posed by the father are contested by him and no findings can be made at this stage.

3. In my view, although some concerns arise from the reports of the paediatrician and psychologist to whom the children were taken, I cannot attach great weight to those reports given the circumstances in which they were made and the fact that the mother alone provided all of the information which form the basis of the report.

4. As noted earlier in these reasons, even the paediatrician and psychologist who are of the view that the children have been exposed to a traumatic event or events in the care of the father, are not of the view that he should not spend any time with them. Rather, their concern is that such time should be supervised, which is in accordance with the father’s proposal.

5. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

The Additional Consideration: s 60CC(3)

Any views expressed by the children and any factors underlying their views, noting their ages in respect of any weight to be given to their views

1. The views of the children are unknown.

The nature of the relationship of the children with each of their parents, and other significant persons

1. An assessment of the children’s relationships has not been undertaken. Both parents appear to have been closely involved in the children’s care when they were infants, though there is some dispute between the parents concerning this matter. The mother has been the primary carer since separation and the children have not seen their father for around nine months. Having regard to the children’s age, it is likely that this has detrimentally affected the children’s relationship with the father. 

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

1. It appears that the parents jointly made decisions concerning the children prior to separation and each was significantly involved in the children’s care. It is the father’s case that he has persistently attempted to pursue the opportunity to participate in decision-making, to spend time with, and communicate with the children since separation, but he has been thwarted in doing so by the mother unnecessarily imposing a requirement for supervision, unilaterally moving to Sydney from Melbourne with the children and making unfounded allegations in relation to his parental capacity.

2. The mother contends that the father was not extensively involved in the care of the children prior to separation and after separation did not always pursue spending time with the children when it was available to him.

3. These matters in dispute are unable to be fully resolved on an interim basis.  However, I am satisfied that the father has been committed to maintaining this relationship with the children since separation.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. The father paid child support of $1,000 per month prior to moving to Sydney in October 2015, which he continued for a further two months despite the fact that he was unemployed. From December 2015, when he obtained casual employment, he has paid reduced child support. The mother has otherwise maintained the children since separation.

Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. It is not proposed under the father’s orders that the children will experience a change in their living arrangements that would involve them being separated from their mother. The father proposes that he spend time with the children for a very limited period. It is difficult to speculate upon the effect upon the children of being reintroduced to their father in this manner. The children’s reaction to encountering their father on Skype and fears they have said to express about him to the mother have not been tested in the proceedings.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. There will be some expense associate with the children spending supervised time with their father at a contact centre, but this is not an impediment to the orders he proposes.  As the father’s time with the children is intended to be for their benefit, both parents should contribute to the cost of supervision.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs; and attitude to the child and responsibilities of parenthood demonstrated by each parent

1. This is a matter of significant dispute between the parties. Although it will undoubtedly assume some greater importance at the final hearing, it is not suggested at this interim stage that a lack of capacity in the father is so great that he would be unable to provide for the children’s needs in a supervised setting at a contact centre. 

2. The father has voluntarily completed a number of parenting courses to address the mother’s concerns about his perceived lack of parenting capacity.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. The children are of European heritage through their paternal side and when the family were intact, were bilingual. The father is concerned that since separation the mother speaks only English with the children and does not promote their European culture and traditions.

2. The mother denies that she does not promote the children’s European cultural heritage and says that they are able to watch European television, that she has downloaded European language applications, she buys them European food and facilitates Skype time with the father and paternal grandmother and other family members.

Family violence

1. The mother contends that the father was a perpetrator of some level of family violence during the relationship and on one occasion she sought an AVO be made for her protection, which was unsuccessful. These allegations are unable to be resolved on an interim basis and in any event are not of such a magnitude that they would indicate that the orders proposed by the father are not in the best interests of the children.

Conclusion

1. In coming to a decision about orders that are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, for the reasons given, there is a real concern that if some orders are not made to support the relationship between the children and their father, that relationship will have been extinguished by the time the final parenting proceedings are heard. Although the mother raises very significant issues in relation to risks of harm posed by the father, in my view, those risks (if they are found to exist) are appropriately mitigated by the supervision that the father proposes.  

2. Having regard to both the primary considerations and the additional considerations set out in s  60CC and in light of the history of the matter, I am of the view is in the best interests of the children at this stage for orders to be made as proposed by the father.

3. Accordingly, the orders that I make are set out at the forefront of these Reasons.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 September 2016.

Associate: 

Date:  9 September 2016