Jordan & Garner

[2021] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jordan & Garner [2021] FCCA 2007

File number:

MLC 10783 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

27 August 2021

Catchwords:

FAMILY LAW – interim parenting – father’s time with the children – whether time should be supervised – men’s behavioural change program opposed – allegations of family violence – orders made

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 65DAA, 90SM, 102NA

Cases cited:

Goode & Goode (2006) ¶FLC 93-286

Oberlin & Infield (2021) [2021] FamCAFC 66

Re F: Litigants in Person Guidelines [2001] FamCA 348

Number of paragraphs:

91

Date of hearing:

18 August 2021

Place:

Melbourne

Counsel for the Applicant:

Mr O Cain

Solicitor for the Applicant:

KJS Legal

The Respondent:

Appeared In Person

Counsel for the Independent Children's Lawyer:

Mr R Allen

Solicitor for the Independent Children's Lawyer:

Schetzer Papaleo Family Lawyers

ORDERS

MLC 10783 of 2020

BETWEEN:

MS JORDAN

Applicant

AND:

MR GARNER

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	18 AUGUST 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

1.The Father and Mother to have equal shared parental responsibility for the children of the relationship X born in 2014 and Y born in 2016 (“the children”).

2.The children live with the Mother.

THE COURT ORDERS THAT:

3.Subject to orders 4 and 7, the children spend supervised time with the Father as follows;

(a)Every Saturday from 12:00pm to 4:00pm, for the first four occasions with time to commence on 21 August 2021, then in a three-week cycle for the first two weekends of the three-weeks; and

(b)In the event Christmas Day is on a Saturday of the Father’s time, time will be suspended; and

(c)At other times as mutually agreed to by the Mother and Father in writing.

4.The Father’s time with the children under order 3 shall be supervised by a person agreed to by the Mother and father and failing agreement the Father’s partner shall be the appointed supervisor and file with the Court an Undertaking to supervise the Father’s time with the children.

5.The Father to forthwith enrol, and complete as soon as practical, a Men’s Behavioural Change Program (usually a 12-week program) by enrolling in B Group, or C program with D Counsellors.

6.Within 14 days, the Father provide proof of enrolment of the Men’s Behavioural Change Program.

7.Once the Father has enrolled, completed the assessment phase and commenced the Men’s Behavioural Change Program, the children are to spend unsupervised time with the Father as follows:

(a)Each Saturday from 12:00pm to 4:00pm; and

(b)At other times as mutually agreed to by the mother and father in writing.

8.On the Father completing the Men’s Behavioural Change Program (usually a 12 weeks) and providing the Mother and Independent Children’s Lawyer of proof of completion, the children are to spend unsupervised time with the Father as follows:

(a)Each Saturday from 10:00am to 6:00pm (in accordance with the three-week rotation); and

(b)On other days as mutually agreed to by the Mother and Father in writing.

THE COURT ORDERS BY CONSENT THAT:

9.Both Mother and Father shall permit the children to contact the other parent at any reasonable time they wish to do so whilst the children are in their respective care, and shall facilitate the call to the other parent upon the children’s request.

10.Unless otherwise mutually agreed in writing the mother shall deliver and collect the children from the location at which the supervised time with the independent supervisor occurs from time to time and once supervised time with the third party supervisor commences, from McDonalds at E Street, Suburb F to allow the children’s time with the Father.

11.The parties are to use the parenting application “talking parents”, to discuss issues relating to the children and shall forthwith download the app, at their individual expense, if any, to give effect to this order.

12.Both parties be restrained by injunction from:

(a)Denigrating the other party or their family in the presence of or hearing of the children and from allowing anyone else to do so;

(b)Discussing these proceedings or other court proceedings in the presence of or hearing of the children and from allowing anyone else to do so;

(c)Exposing the children to family violence; and

(d)Administering physical discipline to the children.

13.That whilst the children are in their respective care, the Mother and Father shall as soon as practicable, notify the other of any significant illness or injury suffered by the children and identifying the treating health professional or institution forthwith.

14.That each party be authorised to receive copies of the following at their own expense:

(a)School reports;

(b)School photograph order forms; and

(c)Any other documents, paper publications or the like ordinarily provided to parents.

AND THE COURT NOTES THAT:

A.The form of the supervisor’s undertaking has been provided to the parties by the Independent Children’s Lawyer.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. In this matter I determined a dispute between the parents and the Independent Children's Lawyer as to what time and in what circumstances the respondent father, Mr Garner (‘the Father’), should spend with the children X, now aged seven, and Y, now aged five and a half (‘the children’).  The applicant mother is Ms Jordan (‘the Mother’).  The matter came before me in a very busy list in circumstances I will refer to later in these reasons, and I heard the parties' submissions, made orders and reserved my reasons.  These are those reasons.

   BACKGROUND

2. The Mother is aged 35 and is employed as well as caring for the children as a single mother.  She now lives some one and a half to two hours travel from where the Father lives.  The parties commenced cohabitation in about 2008 and the Mother asserts that the parties separated on a final basis on 8 October 2018.  X was born in 2014 and Y in 2016.  Hence, at the time of separation, Y was not yet three and X had just turned four.

3. The Mother has obtained a family violence order and she asserts a violent incident in November 2018.  From the information I have, it appears that an interim order was made against the Father in the Mother's favour (and the children were included on that order) on 7 January 2019.  That was an interim ex parte order.  The proceedings were adjourned to 27 February 2019 and were then adjourned again and it appears to 18 October 2019.  On 11 June 2020 the Magistrates' Court varied and extended the October 2019 intervention order until 11 June 2023.  Hence, there is a final intervention order in place.

   PROCEDURAL HISTORY

4. The Mother issued these proceedings on 5 October 2020 and the first return in this court was on 9 February 2021.  On the first return the Father had not filed any material and he appeared on his own behalf.  It was ordered that he be served with the Mother’s documents by email that day and that within 21 days the Father file his responding material and affidavit.  Hence the Father should have, were he to comply with those orders, to have filed material on or before Tuesday, 3 March 2021. 

5. The matter was adjourned to hearing on 11 March 2021.  The Father did not file material as ordered.  However, shortly prior to the return date before me on 11 March 2021, he sent by email to the Mother's solicitor and to my associate lengthy and detailed documents that, on their face, responded to the allegations in the Mother's affidavits.  Those documents were served by email upon the Mother's solicitors on 9 March 2021. 

6. On 11 March 2021 I permitted the Father to rely upon those documents which were tendered in evidence (including the document headed Risk Assessment) as F1, 11 March 2021, and a document that could be regarded as a narrative response to the Mother's allegations as F2, 11 March 2021. 

7. On 11 March I made orders for the appointment of an Independent Children's Lawyer, for the parties to attend a child-inclusive conference pursuant to section 11F of the Family Law Act 1975 (Cth) (the Act) and also made other orders necessary for the matter to be prepared for final hearing which I listed on 21 February 2022, including a family report to be released by 23 November 2021. On that day the Father was again unrepresented. Those orders included notation F:

   F.If section 102NA applies and the party becomes unrepresented after trial directions have been made, that party is required to promptly advise the court.

8. The matters in issue between the parties included property division.  I ordered the parties attend a conciliation conference with a registrar of the court on 19 May 2021.  I otherwise adjourned the parenting proceedings for interim defended hearing before me on 23 July 2021.

9. On 23 July 2021 the Mother was represented by counsel and the Father appeared in person.  The Mother’s counsel informed me that the Mother was day in hospital recovering from surgery.  He informed me that he had sufficient instructions to conduct the hearing and that his client wished the matter to proceed notwithstanding that she was in hospital recovering from surgery and had been administered pain relieving drugs.  The Father joined with her in seeking that the matter proceed.  Notwithstanding the parties' enthusiasm for the hearing, in those circumstances I refused to proceed and adjourned the matter to 18 August 2021 into a busy trial list where I was conducting final hearings.

10. On 18 August 2021 the Mother was again represented by counsel, the Independent Children’s Lawyer was represented by counsel, and the Father again appeared in person.  The Father had filed an affidavit on or about 2 July 2021 that annexed the same affidavit material that had been before the court on 11 March 2021 as F1 and F2.

11. The parties had attended a conciliation conference before a registrar on 19 May 2021.  The registrar notes at notation B the following: 

    B.The conciliation conference could not proceed on this day due to the non-compliance with the orders of Judge O'Shannessy of 11 March 2021 and, therefore, a directions hearing was held to progress this matter. 

12. I also observe notation D to those orders of the registrar:

    D.The registrar has recommended to the respondent (the Father) that he attend a community legal centre to obtain independent legal advice and assistance with complying with these orders. 

13. I will revisit the disadvantage of lack of legal advice later in these reasons.  I also note that by order 12 of those orders, the registrar ordered as follows: 

    12.Should the respondent fail to comply with any or all of these orders, subject to compliance by the applicant with all of these orders, then the applicant shall on 23 July 2021 be at liberty to apply to seek leave to proceed with her initiating application filed 5 October 2020 on an undefended basis with regard to property issues only. 

14. The registrar then ordered the parties attend a conciliation conference on 12 August 2021.  The registrar conducted a compliance check prior to the conciliation conference on 13 July 2021 and ordered that the conciliation conference be vacated in circumstances where there had not been complete compliance with the orders of 19 May 2021.

15. The parties should be aware that as property alteration is sought there is a heavy burden on each of them to make full and frank disclosure of all relevant documents, including bank statements, and information to each other and that is an ongoing obligation.  As a general rule if the Court finds that a party does not make full and frank disclosure then the Court may make orders that are more generous to the other party.  Further parties frequently overlook documents they need to prove his or her case or to rebut allegations or evidence of the other side.  Documents intended to be relied upon in Court must be disclosed to the other side beforehand.  If a party seeks a financial document from the other side it is usually relevant.

16. The parties are reminded of section 90SM(9) which is usually taken to mean the parties cannot have a property division final hearing unless they have attended a conciliation conference.

    MATERIAL RELIED UPON

17. I had before me on 18 August 2021 the section 67Z response from the Department of Health and Human Services (as it then was).  That section 67Z response describes, commencing on 20 November 2018, a report of the children's exposure to verbal family violence between the Mother and Father.  There was a further report relating to an allegation in the period 4 March 2019 to 9 April 2019 where in response to the father being verbally aggressive at the former matrimonial home the Mother called triple zero.

18. There is then described a further report to the department of 24 June 2019 complaining that the Mother had allowed the Father telephone contact with the children and that the children's behaviour became aggressive since the telephone contact with their Father.

19. A further report on 6 August 2019 complained of the children's exposure to the Mother's smoking, removing the older child from school, and the Mother associating with a man known as Mr G with concerns about Mr G’s involvement in criminal activities and ice use.  That report was closed at intake.  Another report was made on 16 June 2020 where it was alleged that the Father had been breaching the intervention order that applied by contacting relatives of the Mother, and this report was also closed at intake.  On 20 October 2020 Child Protection received a secondary report complaining that the children had been exposed to an incident.  The incident was a missed call alleged to have come from the Father on 16 September 2020 and this call was reported to the police.  The section 67Z report concluded with:

    It is assessed that the reported information, whilst concerning, does not demonstrate immediate or significant risk that would warrant child protection intervention at this time.  It is assessed that care and contact arrangements would be best addressed in the family law court arena. 

20. In addition to the section 67Z response, I then had the section 11F child inclusive conference memorandum of the family consultant dated 19 July 2021.

21. The mother relied upon the following material:

    (1)Notice of risk,

    (2)Initiating application,

    (3)Affidavit of 20 September 2020,

    (4)Affidavit of 5 October 2020,  and

    (5)Affidavit filed 17 August 2021 at 4.35 pm (the evening before the next hearing). 

22. The Father relied upon his affidavit of 2 July 2021 which annexed the exhibits F1 and F2 which had been before me on 11 March 2021 and financial documents which were not relevant for the orders relating to the children before me.  In addition, the Father had emailed on 10 August 2021 to my associate and the Mother's solicitor a document asserting, or at least setting out the interim orders that the father sought at that time.  The Father sought orders as follows:

    1.        The parties to have equal shared parental responsibility of the children.

    2.        The children live with the Mother.

    3.The children to spend unsupervised time with the Father via an undertaking of the Court in relation to any orders made by the court.

    a.Each Saturday from 12:00pm to 4:00pm, with time to commence on 24 July 2021 for a period of 4 weeks.

    b.        Then from Friday 7pm to 4.00pm Saturday for a period of 4 weeks.

    c.        Then from Friday 7pm to Sunday 4pm each week.

    4.That there be no need for me to complete a behavioural change programme as my children stated that they haven't witnessed any domestic violence.

    Merely because a allegation and presumption that a person is violent and guilty of a crime doesn't always mean they are quilty.

    I will always maintain my innocence that's why I have always requested those 000 recordings to prove my innocence.

    In 11 years with Ms Jordan never once was there a claim by Ms Jordan and now confirmed by our young sons of any abuse or violence apart from when it became known that I was seeing another woman and our relationship was finished .

    If I was abusive in anyway I would do a men's behavioural change program.

    I feel by doing one that it is admitting guilt where I am inoccent despite the claims.

    5.If I am asked to do a men's behavioural change then I humberly ask to present evidence to the contrary whereby Ms Jordan and her mother slammed the sliding door on me and the court to please subpoena all of the 000 recording made by myself and Ms Jordan of the allegations before the courts and the Statement from Suburb H Police that Ms J made.

    I would like his honour to hear those recordings before deciding on whether any Men's Behavioural Change should have ever been requested and whether I was ever a perpetrator of Domestic Violence.

    THE DISPUTE

23. When the matter was called on before me, I indicated to the parties that I had to attend to other matters that morning and that I would resume the hearing as soon as I could.  When the matter came back before me later that day, I had the assistance of a minute of orders prepared by the Independent Children’s Lawyer that included the orders sought by the Father and the orders sought by the Mother.

24. The dispute between the parties as to the orders sought on 18 August 2021 had substantially narrowed.

25. The parties then agreed that there should be an order for equal shared parental responsibility and that the children would live with the Mother.  The Mother sought orders that the children spend supervised time with the children each Saturday from 12pm to 4pm, each alternate Saturday, and supervised by an independent supervisor.  The Mother further sought that the Father's time be supervised by an independent supervisor for a minimum of six sessions, with the supervisor to prepare a written report at the conclusion of time and to provide recommendations regarding any further supervised time between the children and the Father.  The Mother proposed that she pay half of the fees of the independent supervisor.  The Mother and the Independent Children’s Lawyer sought that the Father enrol in and complete a men's behavioural change program (which are usually 12 weeks) with a number of options as to which group.  The Mother and the Independent Children’s Lawyer sought orders that the Father provide proof of enrolment within 14 days.

1. The Mother sought that once the Father had enrolled in and completed the assessment phase of the men's behavioural change program and if the independent supervisor had confirmed that professionally supervised time was no longer required, then the children were to spend time supervised by a (non professional) third party supervisor.  The Mother's position was that in the event that that supervisor was unable to be agreed between the parties, then that supervisor would be the Father's partner provided the usual undertaking had been provided.  The Mother's position was that next, upon the Father completing the men's behavioural change program and providing the Mother and the Independent Children’s Lawyer with proof of completion, the Father's time would progress to unsupervised time each alternate Saturday from 10am until 6pm.  During the hearing in the running, the Mother's position changed to be that that time should be each Saturday rather than each alternate Saturday.

2. The parties otherwise agreed that the children should be permitted to contact the other parent at any reasonable time whilst in the other's care, that they would use the parenting application “Talking Parents” to discuss issues relating to the children, that the parents be restrained by injunction from denigrating the other within the hearing of the children or discussing the proceedings within the hearing of the children, exposing the children to family violence or administering physical discipline to the children.  The parties also agreed to the usual orders about reporting any illness or sickness to the other parent and the usual authorisation for parents to receive school information.

3. The Father opposed any supervision and the Father opposed the order that he attend a Men's Behavioural Change Program, but he agreed to time commencing from 12 noon to 4pm but sought the same each Saturday.  By the time of the hearing proceeding on 18 August 2021 the Father no longer sought, on the interim hearing, for time to be extended to overnight.

4. The parents agreed that changeover for the Father's time would be at a McDonald's restaurant close to where the Father lived and considerable distance from where the Mother now lived.

5. This is an interim hearing and I endeavoured to apply the guidelines as set out at paragraphs 81 and 82 of the Full Court's guidance in Goode & Goode (2006) ¶FLC 93-286. 

6. The agreed or uncontested relevant facts were few, but included the following: 

   (1)A final intervention order applies that would expire on 11 June 2023 for the protection of the mother and the children,

   (2)That the father had a new partner, Ms K, and that she was prepared to supervise time,

   (3)That in the section 11F child inclusive conference memorandum it was not disputed that X and Y were observed as follows:

   24.X (six) presented as congruent with his age and stage of development and was able to clearly engage with the writer. He reported no fears or worries when in the care of either of the parties and reported being “excited”, should he be able to spend time with Mr Garner.  He did not report any concerns about the parties, prior to separation. 

   26.Y (five) presented as a congruent with his age and stage of development.  He appeared to struggle to sit and engage in interview, which aligns with his age. He reported that the parties were not friends and that “daddy made mummy cry and left”, which X interrupted and stated “is not true”. Y reported wanting to spend time with Mr Garner and did not describe being fearful or worried.

   28.…It was reported that the children have not spent time with Mr Garner for a period of approximately two years, which is likely to impact their relationship with him if continued.

   30.…Ms Jordan further acknowledged that there are no concerns of physical risk for the children, when in Mr Garner’s care.

7. Turning now to the application of Part VII to this controversy. I regard the best interests of the children as the paramount consideration. I am and was conscious of the direction that in determining the children's best interest I must consider the matters set out in section 60CC(2) and (3) of the Act. I consider the primary considerations of the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am also assisted by section 60CC(2A) that directs me to give greater weight to the protective consideration.

8. The views of the children are clear and unequivocal.  They want to spend time with their Father.  However, at ages six and five I gave such views little weight.  However, those views are instructive of the nature of the relationship of the children with their Father.  It is unchallenged that the children have an appropriate relationship with their Mother.  It is clear they have a relationship with their Father. 

9. There is a conundrum about the issue of the extent to which each of the children's parents has taken or failed to take the opportunity to participate in decisions about the children and to spend time or communicate with the children.  It appears undisputed that the Mother's decision to change the older child's school was unilateral and that the Father was not consulted.  He complains that it is the Mother's gatekeeping behaviour which has meant that he has not been able to spend time with the children at all.  The Mother's counsel points out to me the orders of 11 March 2021 which provided for supervised time but which had implicit within those orders the requirement for the parties to agree upon a supervisor.  The parties never agreed about the supervisor.  There was no time. 

10. In the Mother's affidavit of 17 August 2021 at paragraph 25, the Mother asserts as follows:

    25.The respondent (the father) only had them once overnight since separation.  This in the early stages was his choice as he repeatedly told me he didn't want them overnight because "I just want to party".  He did not appear to be concerned that X often asked to see him more and it wasn't until X asked the respondent himself that the respondent actually spent time with him.  The respondent claimed that it was because he didn't have a room ready for them when he rented his house with Ms L (his current partner) in January 2019.  This appeared to be a convenient excuse for not having the children overnight as the cost of purchasing two beds for the children would have been a minimal expense.

11. I had permitted the Mother to rely upon that extremely late filed affidavit notwithstanding the circumstances that the Father was a litigant in person and would be unable to reply to the assertions because I regarded the matters in the late filed affidavit as substantially covering the same matters that had been dealt with in the October affidavit to which the Father had responded in detail in his 11 March 2021 F1 and F2 exhibits. The paragraph 25 recited above was a more detailed version of paragraph 61 of the Mother's affidavit of 5 October 2020. The Father had responded to that paragraph in his F2 document helpfully numbered the same as the Mother's affidavit.

12. In substance, the Father denied the allegations that he refused overnight time and asserted that he and his partner did, in fact, have two single beds and had done up the spare room as an area for the boys to play.  The Father denied that there was any occasion that the mother forced him to have the children overnight and asserted that the mother refused to allow them to stay overnight after she had seen the bedroom prepared for the boys. The Father asserts that upon learning that the Father had re-partnered, the Mother became infuriating and verbally abusive and stopped all contact.

13. On an interim hearing I am unable to resolve that dispute. But it is significant that at least in early 2019 and consistent with what is reported that the Mother said in the section 11F child inclusive conference interviews, that the Mother at that time did not regard the children spending overnight time with the Father as a risk to their welfare and, in fact on her account, was prepared to insist that he had time and was able to persuade him to do so on one occasion despite his asserted reluctance. However, it is not clear to me the extent to which the Father's position of injustice at false accusations about family violence have impacted upon his preparedness to at times spend time with the children. I am simply unable to make any finding.

14. In this case the Mother asserts that the father has failed to fulfil his obligations to maintain the children.  She asserts he is in arrears of child support to the extent of $10,000. 

15. I must take into account the likely effect of any changes in the children's circumstances. The major change to be considered is the introduction of time with their Father and the introduction of unsupervised time. I accept as accurate the section 11F report writer’s observations of the children's enthusiasm to spend time with the Father. I regard these boys spending time with their Father as a change for the better.

16. There is some practical difficulty and expense of the children spending time with the Father in the circumstances that the Mother lives in a regional city some distance from Melbourne and the Father resides on the opposite side of the Melbourne metropolitan area.  This will entail significant contact and the boys are likely to be very tired by the time they get home from the second bout of travel.  However, the Mother has proposed to herself undertake that travel.  I take into account the capacity of each of the parents to provide for the needs of the children as best I can.

17. It is a controversy in this case the extent to which each of the parents has exposed the children to their antipathy to the other parent.  The Father alleges that the Mother has exposed the children to her antipathy to him and his new relationship and his new partner.  The Mother alleges the Father had an obsession with the Mother's new partner that she had previously had following separation and that the children had been exposed to oppressive questioning of them by the Father about that relationship.  I am unable to make any findings in regard to those circumstances. 

18. I am satisfied that the Mother is able to well care for the children in regard to their day-to-day needs and I am satisfied that the Father will be able to care appropriately for the children in the limited daytime arrangements that I will order and on the conditions I impose.  The maturity and background of the parties is only relevant to the extent to which, if true, the allegations that each makes about the other and their attitude to the others new partner would demonstrate significant immaturity on behalf of one or both of them.  I am unable to make any findings on this interim hearing. 

19. I take into account the attitude to the responsibilities of parenthood demonstrated by each of the child's parents.  The Mother cares for the children appropriately, but in circumstances where they have been unable to have any time with or develop a relationship with their father.

20. How a parent deals with his or her children's relationship with the other parent is a most significant aspect to the responsibility of parenthood.  If the Mother has been unable to protect the children from her own feelings about the Father upon his re-partnering, that would be the opposite of an appropriate responsibility to parenthood.  If the Father has exposed the children to family violence and his antipathy to the Mother's new partner, that would be the opposite of an appropriate responsibility to parenthood.

21. I am unable to make any findings in that regard.  The Father has gone to some trouble in these proceedings to attempt to spend time with the children.  The Mother has gone to some trouble and expense to ensure that the children only spend time with the Father when it is safe to do so.

22. I must consider family violence and intervention orders in this matter.  I take into account the circumstance that there is a final intervention order in place against the Father for the protection of the Mother and the children.  I take into account that at one point the Father had obtained an ex parte interim intervention order against the Mother's former partner.

23. Each parent complains of significant family violence against the other.  The family violence that the Father complains of includes that he received death threats and intimidation at his work from the Mother's partner, Mr G.  Each party accuses the other of controlling their finances.  The Father asserts that he needed to rely upon the Mother's superior reading, writing and administration abilities in the circumstances of his dyslexia and poor literacy skills.  The Father alleges that the Mother's previous partner was stalking his current partner at her place of employment, on Instagram and social media.  The Father alleges that the Mother's previous partner threatened his life and his partner's and made financial demands upon him.  The Mother does not admit those allegations but denies that she knew of such behaviour.

24. The Mother complains of a significant incident on 18 November 2018 and March 2019.  On one of those occasions the Father asserts that the parties were separated under the one roof and that it was in those circumstances that the Father had entered the home.

25. In her reply affidavit, the Mother exhibits a M Hotel receipt which she says relates to the parties celebrating the eleventh anniversary of their relationship in 2018.  If that is true, the circumstance that the parties attended the hotel together to celebrate their eleventh anniversary is entirely discordant with being separated under the one roof.

26. The Father alleges that the Mother's new partner made an indirect threat relating to the boys: it is alleged he said, “it may be the last time I see them after he takes them to the beach”.  The Father alleges that the Mother's previous partner has an extensive criminal and ice history and frequent incarcerations as well as doing an armed robbery on a 17-year-old girl while waiting for a bus for her laptop at knife point.  The Father alleges that the Mother had a relationship with this man and exposed the boys to him notwithstanding that at that time the Mother prohibited the boys from being around their own father who was none of these things.

27. Despite these allegations being made in March 2021 the criminal history or documents showing a lack of the man’s criminal history was not before me.  It should have been.   

28. The Father alleges that on the occasion of the November 2018 visit to the house, which the Mother complains of as one of the significant episodes of family violence, the Father asserts that the Mother was yelling at him and asking about his current partner's phone number and that she yelled obscenities at him and was pushing and shoving him and telling him to get the “f--- out” of her home.  He alleges that the Mother and her mother were verbally abusing him and trying to slam the sliding door on him.

29. The Father asserts that the recording of his triple zero call would demonstrate his version of events is to be preferred.

30. The Father’s lack of apparent legal advice has disadvantaged him in a number of ways.  It is clear from the Father's material that he believes that he requires the court's permission to subpoena that triple zero recording.  He does not require the court's permission.  The Father complains that the Mother has not consented to him obtaining that recording.  Whilst a triple zero recording may be available to the Mother upon a Freedom of Information search where she was the caller, it may be that the Father would be able to obtain the triple zero call recording that he made by a Freedom of Information application.  In any event, it is likely that upon a properly drawn subpoena, the recordings of the Mother's triple zero call and the Father's triple zero call would be made available to the court.

31. In the reply affidavit filed on the evening before the final hearing, the Mother annexed to her affidavit some headlines from an internet news service report and that reports the association of the Father's partner with a man alleged to be associated with a motorcycle gang.  Those reports are dated 27 to 29 October 2015 and the proceedings started in October 2020.

32. I also had before me the document that I made exhibit F4, 18 August 2021, being a long, detailed and carefully written email that purported to be from the Father's new partner, Ms K, that responded to the criticism of her in the very late filed affidavit.  I permitted the Mother to rely upon the very late filed affidavit and the Father to rely on the email from his partner.

33. In that email the Father's partner describes her attempts at courtesy with the Mother and the occasions of that attempt at courtesy being rebuffed by the Mother and includes:

    “... on one occasion when I met Ms Jordan (the mother) with Mr Garner (the father) at the McDonald’s car park at (shopping centre) she dismissed shaking my hand and ignored my introduction.”

34. Other behaviour complained of in that email would be consistent with stalking or intimidation.

35. The Father's partner in the email describes being told by the Father (hearsay) that the Father had been distressed when working at a local venue that the Mother and friends had visited that venue and confronted the Father and caused such trouble that security needed to remove them.

36. I inquired of the Mother's counsel what the Mother's account of such an event was and instructions were taken.  I was told the Mother's account was that following separation (during a period when the parties were on good terms) the Mother and her sisters had elected to attend the venue where the Father worked, albeit at the suggestion and encouragement of the Mother's sisters on the expectation that no trouble would arise.

37. This account does not sit easily with the history of the post separation behaviours of the Father in any of the Mother's affidavits.  Neither parent has mentioned any period when the parties were on good terms post separation.

38. The Mother's partner describes having been at school with the motorcycle gang member and having had a teenage relationship with him and at some length asserts that there is another side to the story than that asserted in the headlines of the tabloid press.  In any event, I did not read or explore the internet recordings of those events that would be behind such headlines as annexed to the Mother's affidavit.  The Father's partner describes ending that relationship as:

    “I chose to end the relationship on the basis that I am no longer morally aligned with (that man) and his life decisions.”

39. She goes on to describe obtaining a diploma and being employed for a number of years as a carer and not having any criminal history.

40. I am unable to make findings in regard to the allegations of family violence in the context of this interim hearing and all of the matters being disputed.  However, it is significant that on 11 June 2020 a final family violence order was made for a further three years. 

41. Exhibit -2 to the Mother's affidavit of 5 October 2020 exhibits the intervention order.  The order is for the protection of the Mother and the boys.  The order was made on 11 June 2020 and records confusingly as follows: 

    Mr Garner:

    •Was served with a copy of the Application and Summons

    •Was not at court.

    •Consented without admission of allegations in application.

    •Did not agree to this order being made. 

42. On an interim hearing there are real constraints on making determinations of fact.  However, not all contested evidence is of the same weight.  I do not dismiss or put entirely aside allegations of family violence because they are contested.

43. In this matter, I am significantly assisted by the appointment of the Independent Children's Lawyer and the report of the family consultant. Apart from the matters in the section 11F memorandum referred to above, that document also recites as follows:

    33.      Ms Jordan agreed to spend time to transition to unsupervised.

1. The report writer recommended that the parties have shared parental responsibility, the children live with the Mother and that the children are to commence immediate spend time with the Father and spend time to be stepped out to facilitate a multidimensional approach.  It was recommended that the time commence immediately supervised by an agreed third party with an undertaking to the court for the time to be each Saturday from 12pm until 4pm until the Father had enrolled, completed the assessment phase and commenced the men's behavioural change program.  The report went on to say that upon the Father completing the men's behavioural change program, time progress to 10am until 6pm and then a move to overnight time.

2. It was also recommended that the mother obtain the assistance of a mental health care program to undertake therapy with a psychologist to assist with her understanding and responses and developing coping strategies as a result of her lived experience of family violence.  The report also recommends a number of other interventions and evidence to be before the court.

3. Most of the submissions and time taken in submissions and discussions with the Mother's counsel revolved around the need for the time to commence with an independent paid professional supervisor because of the Mother's anxiety and perception of risk to the children and that supervisors view determining whether time remained supervised or not.

4. In Oberlin & Infield (2021) ¶FLC 94-017; [2021] FamCAFC 66 (‘Oberlin & Infield’) at [42] the Full Court observed:

   [42]… Is it expected that the psychiatrist’s opinion would then be dispositive of the mother’s variation application? If so, how could that be correct, since it would be tantamount to improperly reposing judicial power in the psychiatrist? ...

5. In that case the issue was around future observations of a psychiatrist.  In this case the issue revolves around the automatic consequences of the future observations and opinion of a paid professional supervisor.  I raised with counsel the issue of impermissible delegation of the decision about risk to the children and that I could not delegate to a professional supervisor the decision as to whether the Father’s time would move to unsupervised time consistently with the observation at that point in Oberlin & Infield. 

6. After that discussion the Mother's position changed to be that the matter should return to court following the period of supervision with the benefit of the report from a professional supervisor.

7. The Father has refused to undertake a men's behavioural change program.  He told me and made statements to me to the same effect as set out in his orders sough document: basically that he had done nothing wrong and that to undertake a men's behavioural change program would be seen as an admission that he had, in fact, perpetrated the violence alleged against him, and I infer, that the matters that he alleges against the Mother had not occurred.  The Father’s lack of legal advice does not assist him understand how I must deal with risk of the children being exposed to family violence and what would and would not constitute admissions.

8. In the circumstances of the Father being an unrepresented litigant and my obligations to assist an unrepresented litigant by the decision of Re F: Litigants in Person Guidelines [2001] FamCA 348, I had some discussion with the Father. I indicated to him that were he to voluntarily undertake the men's behavioural change program, that that would not have been regarded as an admission, but may have been regarded positively in his favour as indicating some insight in being prepared to examine his own behaviour. He told me he would undertake such course if ordered but maintained, as he was entitled to do, his opposition to being compelled to undertake such course.

9. I also considered, as required by section 65DAA of the Act, whether the children should spend equal time with their parents. I did consider this. In the circumstances where no party sought that I did not consider such an arrangement to be either practical or in the children’s best interests. I considered, as required by section 65DAA of the Act, whether the children should spend substantial and significant time with each of their parents. I did consider this. In the circumstances where no party sought that I did not consider such an arrangement to be either practical or in the children’s best interests. The parties had agreed on the actual time arrangements.

   DETERMINATION

10. Balancing all of these matters, I determined that I would, against the submissions of the Father, order him to undertake the men's behavioural change program.  This is not a finding that the allegations the Mother makes are true and that the allegations he makes are not true.  I am required to make orders on an interim hearing when I have limited information available to me and I must deal with the risk of psychological harm to the children from exposure to family violence and attitudes to behaviour that is family violence. 

11. I must apply section 60CC, including sections (2) and (2A), of the Act. In determining what is in the best interest of the boys the primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In applying those considerations I must give greater weight to the need to protect the children.

12. The issue of risk arises from the fact of the allegations concerning children, not from a determination or prejudgment of the accuracy of the allegations.  I do not dismiss either the Father’s or the Mother’s allegations.

13. Were I merely dealing with what is right or fair to each of the parents, I would not order that the Father undertake a men's behavioural change program notwithstanding that that may be very much to his benefit as an individual.  In circumstances where I am dealing with his application to spend what I infer to be substantial and significant time with the children including overnight time and school holiday time, I regard it as being in the children's interest that the Father have the opportunity to have the assistance with developing insight into his responses during the relationship and post separation and that applies whether the Mother’s allegations are accurate or not. 

14. I found that upon the Father enrolling in such a program any risk, or the degree of any risk, is reduced and that the Father’s time, supervised only by his partner, is in the children’s best interests taking into account the agreed or non-controversial facts and giving the contested allegations some limited weight. I also took into account when assessing risk that the 11F report writer, an expert, having spoken at length to the parties and the children, although not in a position to assess accuracy of the allegations, did not dismiss or diminish the Mother’s allegations.

15. Orders were not sought before me for the Mother to undertake any psychological assistance and I have not ordered same notwithstanding the recommendation.

16. Significant time was spent discussing with the Mother's counsel the requirement of the independent paid professional supervisor to be involved before a move to unsupervised time.  In determining that supervision, but not a paid professional supervisor, was required to promote the best interests of the children, I took into account the following matters:

    (1)The family report writer had not recommended paid professional supervision, but initially for a limited time, a supervisor agreed between the parties; 

    (2)The circumstances that the parties would not be able to reach agreement as to a third party supervisor; 

    (3)The circumstances that the Father's partner is a carer without criminal record.  This does not appear to have been disputed;

    (4)The Father's partner being the supervisor was recommended by the Independent Children’s Lawyer and was the Mother's default position further down the track upon a third party not being able to be agreed;

    (5)The most significant matter, the substantial contraction of the Father's time from what he seeks or sought as at 10 August 2021. The Father will only have limited time from 12 noon to 4 pm until the completion of the men's behavioural change program and that time will not move to overnight time unless the parties agree without further order of the court.

    (6)The children’s relationship with their father and their enthusiasm to spend time with him.

    (7)The likely further delay in engaging the paid professional supervisor.

17. Notwithstanding the Mother proposed that her time be every weekend, I have determined it's in the children's best interests that after the first four introductory sessions the time move to being the first two out of every three weekends, but not to include Christmas Day, noting that 25 December 2021 is a Saturday.

18. It is in all of those circumstances and for those reasons that I determined the orders made on 18 August 2021 were in the best interests of the children.

    SECTION 102NA ISSUE

19. There is a further significant matter that has not been addressed before me and that is the provisions of section 102NA of the Act. One of the disadvantages to not obtaining legal advice is that the Father appears not to understand the significance of the fact of allegations of family violence being made and the consequences of the fact of allegations, whether or not those allegations are ultimately made out. Despite notations being made in regard to the consequences of section 102NA, the Father has not addressed this provision. It may be that he does not understand the concept of cross-examination. The scheme of Division 4 of Part XI of the Act is that where a party intends to cross-examine another party and there is an allegation of family violence, and there is a final intervention order or family violence order between the parties, then I must not permit the Mother and the Father to cross-examine each other personally.

20. The other side of this otherwise Draconian limitation upon procedural fairness is that an unrepresented party will likely have at public expense via Victoria Legal Aid, a lawyer appointed to undertake such cross-examination.

21. The Father has not told me that he wishes to cross-examine, but I expect upon learning that this is the usual way that evidence is challenged, he would want to.

22. In those circumstances, it appears that section 102NA will apply and he cannot personally cross-examine the Mother and in those circumstances I would request Victoria Legal Aid to assist him. I note the matter is listed for a three day final hearing commencing on 21 February 2022.

23. I would ask the parties to consider this aspect and to bring in with the assistance of the Independent Children’s Lawyer a proposed minute of order relating to section 102NA by Thursday 30 September 2021. This is not an order that can be made by consent, but must be made by the court. However, I would want to know whether the parties propose or oppose such an order. I have not been addressed about it and what appears to me to be inevitable may, in fact, not be so. In the event that the parties disagree about the inevitability of a section 102NA order, I request that the Independent Children’s Lawyer notify my chambers by email and I will list the matter for mention and determination of that issue. Thank you.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate: 

Dated:       27 August 2021