Kallin & Easton
[2021] FedCFamC2F 558
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kallin & Easton [2021] FedCFamC2F 558
File number(s): PAC 2749 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 62G(2), 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Division: Division 2 Family Law Number of paragraphs: 86 Date of last submission/s: 14 October 2021 Date of hearing: 13 and 14 October 2021 Place: Parramatta Solicitor for the Applicant: Mr Ng Solicitor for the Respondent: Mr Kovacs Solicitor for the Independent Children’s Lawyer Ms Blackman as agent ORDERS
PAC 2749 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KALLIN
ApplicantAND: MR EASTON
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
14 DECEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.That the child X born in 2015 (“X”) live with the Mother.
3.The Father spend time with X as follows:
(a)Commencing Saturday 18 December 2021, and each Saturday thereafter for a period of four weeks (four occasions), from 9am to 5pm, except that for Christmas Day 2021 he shall spend time with the child from 9am to 3pm;
(b)Following the conclusion of time provided for in Order 3(a) above, for a period of four weeks (four occasions), each weekend from the conclusion of school or 3pm on Friday until 5pm on the Saturday immediately following;
(c)Following the conclusion of time provided for in Order 3(b) above, each alternate weekend from after school Friday or 3pm until 5pm on the Sunday immediately following.
(d)Any other time as agreed between the Mother and Father in writing.
4.That notwithstanding any other Order:
(a)The Father shall have care of X from 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years and from 3pm on Christmas Day until 3pm Boxing Day in odd numbered years (but with the first odd numbered year being in 2023);
(b)The Mother shall have care of X from 3pm on Christmas Eve until 3pm on Christmas Day in odd numbered years, except that for Christmas 2021 she shall have care of X, inter alia, from 3pm on Christmas Eve until 9am Christmas Day (with the child to be returned to her from the Father at 3pm on Christmas Day), and from 3pm on Christmas Day until 3pm Boxing Day in even numbered years;
(c)If Mother’s Day falls on a day when the Mother does not otherwise have care of X, X shall spend time with the Mother from 9.00am until 6.00pm on Mother’s Day
(d)If Father’s Day falls on a day when the Father does not otherwise have care of X, X shall spend time with the Father from 9.00am until 6.00pm on Father’s Day.
5.Changeover is to occur from X’s school, if it is a school day, or otherwise at McDonald’s restaurant at Suburb B.
6.That for purpose of communication between the parties in relation to X’s care welfare and development the parties shall use the “Our Family Wizard” App or such other App as agreed between the parties from time to time, and for that purpose and within 7 days the parties shall forthwith do all acts and things necessary to register to use (including payment of the subscription fee) and thereafter to notify the other party of such registration to use such App and shall thereafter do all things necessary to maintain a current registration to and use the App to communicate in relation to X’s care, welfare and development.
7.That both parents keep the other informed of:
(a)Any medical problems or illnesses suffered by X;
(b)Any medication that has been prescribed for X;
(c)Any medical appointment made for X during the time X is in the care of the parent;
(d)Any social, school or religious functions which X is to attend;
(e)The residential address of the parent;
(f)Relevant contact details and emergency contact details for other persons who may be caring for X; and
(g)Any other matter relevant to X’s care, welfare and development.
8.That within 14 days of these Orders, the parties do all acts and things and give all irrevocable authorities necessary to ensure that whichever school X may attend from time to time, that school forward directly to each of the parents’ copies of each child's school reports, correspondence, newsletters or any written material pertaining to each child's academic and extra-curricular activities.
9.That both parties are injuncted, without the consent of the other party in writing, from engaging a psychologist or causing X to attend upon a psychologist other than the current psychologist Ms C or any other psychologist as recommended.
10.The parties authorise any Psychologist, Counsellor or other treatment provider X attends upon to communicate the same level of information regarding X’s ongoing treatment to each parent with such level of information to be at the treatment provider’s discretion.
11.Each parent is restrained from making derogatory comments about the other parent in the presence or hearing of X or permitting any third person to do so in the presence or hearing of X.
12.Each parent is restrained from discussing these proceedings with X.
13.The Father shall continue to reside with the paternal grandmother;
14.The Father forthwith take all necessary steps to complete the Managing Strong Emotions and Circle of Security courses, facilitated by D Counsellors.
15.The parties forthwith enrol in and complete a Parenting After Separation course (such as the Triple P parenting program) and provide certificates of completion to the Independent Children’s Lawyer and the solicitor for the other party.
16.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
17.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
18.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
19.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
20.The matter is to be listed on a date to be advised following release of the Family Report.
Note: The form of the Order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the Order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Kallin & Easton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the child, X, born in 2015, aged 6 years.
On about 5 October 2017, consent final Orders were made in this Court; orders were made, inter alia, for equal shared parental responsibility for the child, the child was to live with the Mother, and the child was to spend time with the Father from Thursday at 8 AM until Monday at 5 PM each alternate week. The Father asserts that this was the arrangement until interim parenting Orders were made on 26 May 2021.
The Mother commenced proceedings in this Court on 21 May 2021. She had sought interim Orders, inter alia, that she have sole parental responsibility for the child, that the child live with the mother, and that the child spend no time with the Father. She had sought final parenting Orders, inter alia, that the child spend time with the Father as agreed between the parties in writing, but failing agreement, no time.
On 26 May 2021, by consent, interim parenting Orders were made without prejudice to the Father’s interim application and pending interim hearing, inter alia, that the child live with the Mother; the Father spent time with the child under supervision of E Centre for a period of not less than 3 hours each alternate Saturday. The paternal grandmother was permitted to attend the supervised visitation. Certain interim restraining Orders were made against the Father that without admission, and the Father, again without admission, was ordered to undertake the Men’s Behavioural Change program, the Circle of Security course or another course addressing family violence.
MATERIAL RELIED UPON
The Father relied upon his Case Outline filed 12 October 2021 and the following documents:
(a)Father’s Tender Bundle;
(b)Response of Mr Easton filed 6 September 2021;
(c)Notice of child abuse, family violence or risk filed 6 September 2021;
(d)Affidavit of Mr Easton filed 6 September 2021;
(e)Child Inclusive Conference Memorandum by Family Consultant Ms F dated 27 September 2021;
(f)Affidavit of Mr Easton filed 13 October 2021;
(g)Email submission to the Court of 10 December 2021.
The Mother relied upon her Case Outline filed 12 October 2021 and the following documents:
(a)Submissions letters of 12 October and 10 December 2021;
(b)Child Inclusive Conference Memorandum by Family Consultant Ms F dated 27 September 2021;
(c)Affidavit of Ms Kallin filed 21 May 2021
(d)Affidavit of Ms Kallin filed 12 October 2021.
The ICL relied upon her Case Outline dated 12 October 2021, and the documents set out in that Case Outline, including the Child Inclusive Conference Memorandum dated 27 September 2021, ICL’s Tender Bundle, and email submission of 10 December 2021 to the Court.
PROPOSALS
The ICL sought interim Orders as set out in her Case Outline. Inter alia, she sought Orders that the child live with the Mother and spend unsupervised time with the Father on a graduating basis, commencing with daytime time and progressing to (ultimately) two nights each fortnight.
The Father agreed with the ICL’s proposed interim Orders, above.
The Mother sought interim Orders that the Mother have sole parental responsibility for the child; the child live with the mother; the child spend no time with the Father; the parties and child attend upon a Child Impact Report; and the matter proceed to a final hearing. At the interim hearing, the Mother indicated to the Court, that in the alternative, she would seek that the interim Orders of 26 May 2021 for supervised time between the child and the Father continue.
EVIDENCE INCLUDING THE PARTIES’ RESPECTIVE ALLEGATIONS
The Mother is aged almost 26 years. The Father is aged 25 years and describes his occupation as a factory worker.
In the Mother’s Affidavit filed 21 May 2021, she alleged that the Father over the previous 14 days had become more verbally abusive towards her. She alleges an incident on 26 April 2021 when she attempted to collect the child from the paternal grandmother’s home. She alleges the Father began verbally abusing her and threatening her when she went into the house. She alleges that the paternal grandmother stood between them with the Father pushing her (the paternal grandmother) away hard. She alleges that this incident had occurred in the presence of the child.
The Mother alleges that the parties began living together in 2014 and separated in August 2016. She alleges that the Father would yell and abuse her verbally on about a daily basis, and that the arguments would escalate to physical abuse about 2 to 3 times per week.
The Mother alleges that the Father, in March 2017, without her consent, retained the child leading the Mother to file a recovery Order application. She alleges a recovery Order was made. She refers to consent Orders made on 5 October 2017 to provide the Father with alternative weekend time arrangements.
The Mother asserts that she has a fantastic relationship with the paternal grandmother. The Mother states she has every intention of continuing the child’s relationship with the paternal grandmother. The child refers to her as Nanna G.
The Mother asserts that the child is in kindergarten, has settled into school very well, and is progressing well academically. She is also doing very well socially and she has a great group of friends.
The Mother states she does not wish for the child not to have a relationship with the Father, however she wishes for the Father to seek assistance with his mental health, his anger issues and for the violence to cease.
The Mother asserts that the child has had 9 total absences and 3 partial absences from school this year.
The Mother asserted the Father has been aggressive via text message on 30 May 2020, and annexes a copy alleged text message accordingly.
The Father spend supervised time through E Centre with the child on Saturday 4 September 2021. The contact report for this date states in its Summary, “X smiled and was talkative on my arrival. When she saw Mr Easton, she was excited and ran to him and they hugged and appeared happy to see each other. Mr Easton engaged with X in play and painting, and they watched a movie. They appear to get along well. Mr Easton brought up a discussion in front of X and was prompted to move on from this discussion. Mr Easton was affectionate with X and provided food and drinks. X face-timed her grandmother Ms G during the visit and overall the visit was positive.” The contact report Summary for 11 September 2021 was similarly positive.
The Father asserts that he has not re-partnered since separation.
The Father asserts that he lives with the paternal grandmother and her husband. He asserts that their home has sufficient space, to sleep, learn and thrive, with individual play spaces, that there is three bedrooms, and the child has her own bedroom and plenty of outdoor room.
The Father asserts that since 2017 he has paid child support payments to the Mother for the benefit of the child.
The Father confirms his attendance at the child’s school, but alleges that this was only to ascertain the child’s health, safety, well-being and school performance in circumstances where the Mother was allegedly unwilling to discuss these matters with him. He alleges that he did not attend the child’s school to unilaterally remove her from school or from the mother’s care.
In relation to the incident at changeover on 26 April 2021, the Father disagrees with the Mother’s account of the changeover and alleges that the Mother instigated a verbal argument with him at his home in a highly confrontational manner in the presence of the child. He asserts that it was very regrettable that the parents would allow the child to be exposed to the argument. He alleges, inter alia, that the Mother initially began swearing at the Father to which the Father responded with swear words of his own. He alleges that at one point when he heard the child’s voice he went to her and began to comfort her because she was very upset and in tears. The Father asserts that he recognises that both parents should have handled the situation better and that the use of language was unacceptable and to fight in the presence of the child was deeply regrettable.
The Father asserts that he has never previously been informed that the child visits a psychologist. He asserts it is concerning to him that the Mother elected not to involve him in this decision as he is incredibly supportive of the child receiving professional support. He states his view that the parties’ difficult co-parenting relationship has a negative emotional impact on the child. He alleges that the child has disclosed to him that she has nightmares while at the mother’s residence and that she feels as though the mother’s partner does not spend much time with her. The Father asserts he is hopeful that a psychologist can help the Mother to address these issues. The Father asserts that he attended the child’s school on two occasions in May 2021 to speak with the school as to whether it would be appropriate for the child to engage with a school counsellor. He asserts that he spent recess with the child on one occasion and that the child appeared to enjoy the surprise visit very much.
The Father acknowledges his part-contribution in the changeover incident on 26 April 2021 with the Mother and he is in the process of completing two parenting programs targeting at improving co-parenting capacity, namely Managing Strong Emotions, facilitated by D Counsellors, and Circle of Security, facilitated by the same organisation.
The Father asserts that the Mother’s allegations in paragraphs 14 and 15 of her Affidavit filed 21 May 2021, relating to the Father allegedly retaining the child without the Mother’s consent in March 2017, were all historical allegations that he rejected during their previous Court proceedings.
In the Father’s Affidavit filed 6 September 2021, he acknowledges that the child has spent a substantial portion of her life with minimal contact with the Father. He asserts that he is participating in a gradual reintroduction between himself and the child. He asserts that in the past the Mother has had no issue with leaving the child in his care unsupervised.
The Father asserts that the child is an independent, intelligent 6-year-old girl. She suffers from some ongoing emotional issues, abrupt mood swings and aggressive outbursts. The Father asserts she is seeking professional assistance for these issues, which he is pleased to know.
The Father asserts that he lives about 10 minutes away from the Mother’s residence.
The Father referred to the E Centre contact reports for the supervised visits on 17 July 2021, 31 July 2021, and 14 August 2021. The visits were overall positive with the child happy to see the Father and paternal grandmother (including hugs and kisses). The Court observes that the later supervised visits on 4 and 11 September 2021 were reported by the supervisor to have been overall positive.
The Father stated in the past that he and the paternal grandmother have disagreed over the latter’s role with respect to the child’s care. He asserts that in January 2021 certain friction between himself and the paternal grandmother caused him to temporarily relocate with the child. The Father asserts that he and the paternal grandmother have since maturely discussed her role as grandparent to the child. The Father asserts that he has relocated back to live with the paternal grandmother, and they have a far better parent/grandparent arrangement the Father considers to be in the child’s best interests. He asserts that to the best of his knowledge, the paternal grandmother has no present concerns for his capacity to care for the child.
The Father asserts that he was not suicidal as alleged by his former girlfriend Cassie or at risk of causing any type of harm to the child. He asserts that the Mother had called police to perform a welfare check on him and they had determined that he was not a risk to himself and they did not take any further action after speaking with him.
The Father acknowledges some previous rude text messages from him to the Mother which he regrets and asserts that he is committed to constructively communicating with the Mother in the future for the child.
The Father states that the child has been spending time with him each alternate weekends since July 2021.
CHILD INCLUSIVE CONFERENCE MEMORANDUM
A Child Inclusive Conference was held on 7 September 2021.
The Mother sought sole parental responsibility and that the child live with her. The Mother said she would be agreeable to the child spending time with the Father each alternative weekend, from after school Friday to 5 PM Sunday “if improvements occur” in the Father’s behaviour. She said the time should increase slowly.
The Mother made allegations of family violence by the Father towards her. She stated that while the Father did not hit her he would go to hit her so as to frighten her. She alleged, inter alia, that he would grab her roughly and push her. She alleged that the Father threatened to harm her. She alleged that the Father had been verbally abusive towards the paternal grandmother and had shoved her, witnessed by the child. She alleged that she remains fearful of the Father.
The Father alleged that the Mother had been infrequently physically violent towards him. He alleged that she had been frequently verbally abusive towards him, criticising his parents and calling him dumb. He denied he had ever been violent or abusive towards the Mother. He reported that he had been deemed suitable for participation in the men’s behaviour change program, Taking Responsibility, but did not attend.
The Mother alleged that the Father perpetrates psychological abuse towards the child. She alleged that the Father places psychological pressure on the child by interrogating her about what occurs at the Mother’s home and telling the child that the Mother is trying to take her away from him. She claimed the Father also tells the child that the Mother’s partner does not care about the child and that the Mother will not be giving the child much attention in the future because of the new baby.
The Mother said she was of the view that the child would probably do better with shorter periods of time with the Father, with the paternal grandmother.
The Mother reported that she gave birth to her son H (born in 2021) two weeks prior to the Child Inclusive Conference interview.
The Mother said that she and the Father separated in 2016. She said that while the paternal grandmother who looked after the child for between 1 to 3 days per week (but rarely overnight) for a period and the Father had been around, it had been the paternal grandmother providing the bulk of the care to the child and not the Father. She denied that the child had ever lived in an equal time arrangement.
The Mother maintained that while the Father loves the child he is focused on attempting to continue to control the Mother and that he is willing to use the child to do this. She stated that the child had enjoyed some aspects of her time with the Father when supervision had not been in place.
The Father maintained that he had always been heavily involved in the child’s care.
The Father stated that the Mother refuses to communicate or cooperate with him in a civil, open and reciprocal manner, and therefore they are unable to co-parent.
The Father reported that he lives with the paternal grandmother and her husband and that the child has her own room there.
The Mother said that the child is doing well at kindergarten.
The Family Consultant did not interview the child.
The Family Consultant stated that although the child’s views regarding her parenting arrangements are unknown, she is of too young an age where her views could be relied upon to determine her parenting arrangements. She stated that the parental conflict is clearly high and therefore an equal time arrangement was contraindicated for the family. She stated that based on the information provided in her assessment there was nothing to suggest that the child was at risk of physical harm or serious neglect in either parent’s home, except if the Court was to find that the child had missed excessive amounts of school with no reasonable reason. She stated that unless this is the case there did not appear to be any reason why the child should change residence in the interim while the Court is determining the most appropriate care arrangements for the child. She stated that the Court may need to determine whether the child is at risk of psychological abuse in either parent’s home.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
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: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2), the primary considerations, and (3), the additional considerations. In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Further, section 60CC (2A) provides:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
DISCUSSION
As to the meaningful relationship primary consideration under section 60CC(2)(a), the child has a meaningful relationship with both parents and the child will likely benefit from a continuance of those relationships. The Mother, it would appear, has been the child’s primary carer from birth to date. There is a significant suggestion from the content of the supervision contact reports, relating to the child’s supervised time with the Father since about July 2021, that the child has been enjoying spending time with the Father on those supervised visits.
Should the child now begin to spend unsupervised time with the Father, on a graduating basis, as proposed by the ICL, there is a significant prospect that the child’s meaningful relationship with the Father can be maintained and, importantly, for the purposes of this interim hearing, enhanced.
Should the child spend no time with the Father there is a significant risk that the child’s meaningful relationship with the Father will be detrimentally affected. Should the child continue to spend supervised time with the Father, there is a significant risk that their meaningful relationship will not be enhanced.
As to the need to protect primary consideration under section 60CC(2)(b), the Court has considered all the submitted risks of harm posed to the child in spending time with the Father, as contended by the Mother. The Mother had alleged and contended in this context, inter alia, that:
(a)The paternal grandmother had reported to the Mother that the Father was unable to control or safely care for the child.
This issue is discussed below.
(b)The Father had displayed erratic antisocial and physically violent behaviour towards the mother, including in his communications with her.
The Court has considered the Mother’s allegations in this context. The Court takes into account:
(A)that certain of the Mother’s historical allegations in this context appear to have been made prior to the consent parenting Orders of October 2017, which included consent Orders that the child spend unsupervised time with the Father and equal shared parental responsibility;
(B)the mother’s stated position to the Family Consultant at the Child Inclusive Conference in September 2021 that she would be agreeable to the child spending time with the Father each alternative weekend if improvements occur in his behaviour, with time to increase slowly;
(C)the Family Consultant’s statement, in paragraph 40 of her Memorandum, that based on information provided in her assessment there was nothing to suggest that the child was at risk of physical harm or serious neglect in either parent’s home, whilst acknowledging that this memorandum is untested at this interim stage;
(D)the suggestion, on the material before the Court, that the contents of the parties’ (at times) immature communication with each other appears to have led to antisocial behaviour by the Father towards the mother, particularly in the form of rude and aggressive text communications;
(E)that there is no ADVO between the parties and no prior formal application for such an Order has been made, whether by the Mother or the police on her behalf.
This issue (that is, (b) above) is further discussed below, in relation to a protective Order being made that the Father complete certain courses through D Counsellors, including the Strong Emotions course, which will assist the Father in dealing with anger issues.
(c)The Father experiences adverse mental health, including significant and violent mood swings.
Again, the Court refers to its proposed protective Order discussed below, relating to the Father completing the Strong Emotions course. At this interim stage, considering all the material before it, the Court does not have a significant concern in relation to the Father’s mental health. In this context, the Court observes that despite the Mother’s allegations of historical suicidal ideation in the Father in her last affidavit, this allegation was not made to the Family Consultant in relation to the Father’s mental health.
(d)The Father had attended the child’s school to remove the child, and also with a view to intimidating and harassing the Mother.
The parties are in conflict in relation to this alleged issue, and the Court is unable to resolve it factually. The Court does not hold a significant concern in relation to this issue. The Father frankly states that he was not aware that the child’s school attendance had in fact been satisfactory. He alleges that at no time did he intend to remove the child from school.
(e)The Father was currently the subject of a sexual assault investigation, and had been previously the subject of potential charges of assault police officer upon the recovery of the child;
The Court does not hold a significant concern in relation to the allegations of sexual assault made at one point by the Father’s former partner. This former partner made complaints to the police but apparently decided not to allow an SAIK examination by the police. The police decided no further investigation was to be conducted. The Father alleges that this person had significant mental health issues which were relevant to the allegations, and that sexual activities were consensual.
The Father refers to his first Affidavit filed 6 September 2021, at page 35, which is a digital national police certificate dated 19 June 2021 with no disclosable Court outcomes recorded within the records of police services in Australia. The Court takes into account that the conviction of assault police officer in execution of duty on 28 February 2017 was the subject of what appears to have been a successful appeal resulting in a section 10 bond.
In the view of the Court, at this interim stage, the Court is of the view that should it make the ICL’s proposed Orders relating to the child spending unsupervised time with the Father on a graduating basis, the child should not be exposed to an unacceptable risk of family violence nor exposed to a significant risk of harm provided these protective Orders are made, some of which have been proposed by the ICL:
(a)The Father forthwith take all necessary steps to complete the Managing Strong Emotions and Circle of Security courses, facilitated by D Counsellors, to which he has already enrolled.
The Father admits to unjustified anger in relation to the incident with the Mother at changeover on 26 April 2021. He asserts his remorse for his behaviour, albeit asserting that the Mother also played a part in this incident. In this context, the Court refers to the COPS entry E 8046 1318 in relation to alleged statements made by the Mother to the police in relation to this incident, including her alleged statement that she did not report the matter to the police “as she didn’t think much of it.”
The completion of these courses will assist the Father with the management of his emotional behaviour, assist with the development of his relationship with the child, assist him in developing appropriate ways to communicate with the child, and assist the child in further securing her relationship with the parents.
(b)the Father continue to reside with the paternal grandmother.
In relation to this proposed protective Order, the Court is acting cautiously and conservatively. Historically, it would appear that the Father has cared for the child satisfactorily and his care of the child during the supervised visits has been sound.
The child has previously enjoyed a positive relationship with the paternal grandmother. The Court observes that the paternal grandmother had attended certain supervised contact visits with the child and Father. The Father asserts that whilst historically he has had some disagreements with the paternal grandmother, relating to the latter’s role in assisting in the care of the child, there has been a mature discussion between himself and the paternal grandmother in relation to this issue, and that having relocated from the paternal grandmother’s residence for a short period he later returned to her residence with the child. The presence of the paternal grandmother in the same household as the Father and child should assist as a protective mechanism in the event that the Father requires assistance in relation to the care of the child.
As to the Mother’s allegations relating to communications with the paternal grandmother and the latter’s alleged concern for the child’s welfare in the care of the Father, the Court takes into account the Father’s allegations that at least some of these communications from the paternal grandmother related to a period when the child and the Father were not living with the paternal grandmother, and that the Father and the paternal grandmother were experiencing some friction in their relationship relating to the role of the paternal grandmother in the care of the child. There is also a suggestion in these communications between the Mother and the paternal grandmother that the latter may have been unreasonably ascribing the child’s emotional state to the Father’s care of her (e.g. “she was very depressed over the weekend”). There is also a suggestion from these communications that the paternal grandmother may have been unnecessarily fretting in relation to the well-being of the child (e.g. “Thanks. And is she okay? (the paternal grandmother) to which the Mother responds, “Yeah she is fine no issues at all”). The Court takes into account that there is no evidence that the paternal grandmother has made a complaint to the police or welfare authorities in relation to the Father’s care of the child.
The Court broadly accepts the Mother’s written submission to the Court in this context.
(c)The parties use the Our Family Wizard App (or such other App as agreed between the parties from time to time) for the purposes of communication between them in relation to the child’s care welfare and development.
The use of such App will assist the parties in better communicating with each other in relation to their co-parenting of the child, and potentially lead to a reduction in their co-parenting conflict.
(d)The ICL’s proposed Orders 9 and 10 relating to prospective treatment of the child by a psychologist, and the communication of information by the psychologist to the parties relating to such treatment, will assist the parties in lessening distrust between them, enable them both to better understand and manage the child’s emotional life, and overall assist in co-parenting the child.
(e)The ICL’s proposed Order 8 relating to the child’s school been given authority to forward relevant school information to the parents will assist, again, in lessening distrust between them, assist the parents in better understanding the child’s school progress and attendance, and again overall assist in co-parenting the child, in particular in relation to her schooling life.
(f)The parties are restrained from making derogatory comments about the other parent in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.
In this context, the Court observes that at least the Mother makes allegations against the Father of negative behaviour by the Father to the child in this regard.
(g)The parties are restrained from discussing these proceedings with the child.
Such an Order will assist in lessening mistrust between the parties, assist in dealing with any verbal behaviour by the child relating to the content of the proceedings, and thereby minimise any anxiety in the child in this regard.
(h)That changeover is to occur from the child’s school, if it is a school day, and otherwise at McDonald’s Restaurant, Suburb B.
Such changeover Order should minimise the risk of conflict between the parties, in the presence of the child, at changeover.
At this interim stage, it will not be in the best interests of the children to make an Order for parental responsibility, and observing that there is no major decision looming for this child. Having regard to the Court’s above discussions in relation to the need to protect primary consideration, it will not be in the best interests of the children to make an Order for equal time, nor substantial and significant time, with the Court observing that no party sought such Orders.
These Reasons have discussed the relevant considerations under section 60CC of the Act. Evaluating such discussed relevant considerations, it will be in the best interests of the children to make the following interim parenting Orders:
1.All previous Orders be discharged.
2.That the child X born in 2015 (“X”) live with the Mother.
3.The Father spend time with X as follows:
(a)Commencing Saturday 18 December 2021, and each Saturday thereafter for a period of four weeks (four occasions), from 9am to 5pm, except that for Christmas Day 2021 he shall spend time with the child from 9am to 3pm;
(b)Following the conclusion of time provided for in Order 3(a) above, for a period of four weeks (four occasions), each weekend from the conclusion of school or 3pm on Friday until 5pm on the Saturday immediately following;
(c)Following the conclusion of time provided for in Order 3(b) above, each alternate weekend from after school Friday or 3pm until 5pm on the Sunday immediately following.
(d)Any other time as agreed between the Mother and Father in writing.
4.That notwithstanding any other Order:
(a)The Father shall have care of X from 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years and from 3pm on Christmas Day until 3pm Boxing Day in odd numbered years (but with the first odd numbered year being in 2023);
(b)The Mother shall have care of X from 3pm on Christmas Eve until 3pm on Christmas Day in odd numbered years, except that for Christmas 2021 she shall have care of X, inter alia, from 3pm on Christmas Eve until 9am Christmas Day (with the child to be returned to her from the Father at 3pm on Christmas Day), and from 3pm on Christmas Day until 3pm Boxing Day in even numbered years;
(c)If Mother’s Day falls on a day when the Mother does not otherwise have care of X, X shall spend time with the Mother from 9.00am until 6.00pm on Mother’s Day
(d)If Father’s Day falls on a day when the Father does not otherwise have care of X, X shall spend time with the Father from 9.00am until 6.00pm on Father’s Day.
5.Changeover is to occur from X’s school, if it is a school day, or otherwise at McDonald’s restaurant at Suburb B.
6.That for purpose of communication between the parties in relation to X’s care welfare and development the parties shall use the “Our Family Wizard” App or such other App as agreed between the parties from time to time, and for that purpose and within 7 days the parties shall forthwith do all acts and things necessary to register to use (including payment of the subscription fee) and thereafter to notify the other party of such registration to use such App and shall thereafter do all things necessary to maintain a current registration to and use the App to communicate in relation to X’s care, welfare and development.
7.That both parents keep the other informed of:
(a)Any medical problems or illnesses suffered by X;
(b)Any medication that has been prescribed for X;
(c)Any medical appointment made for X during the time X is in the care of the parent;
(d)Any social, school or religious functions which X is to attend;
(e)The residential address of the parent;
(f)Relevant contact details and emergency contact details for other persons who may be caring for X; and
(g)Any other matter relevant to X’s care, welfare and development.
8.That within 14 days of these Orders, the parties do all acts and things and give all irrevocable authorities necessary to ensure that whichever school X may attend from time to time, that school forward directly to each of the parents’ copies of each child's school reports, correspondence, newsletters or any written material pertaining to each child's academic and extra-curricular activities.
9.That both parties are injuncted, without the consent of the other party in writing, from engaging a psychologist or causing X to attend upon a psychologist other than the current psychologist Ms C or any other psychologist as recommended.
10.The parties authorise any Psychologist, Counsellor or other treatment provider X attends upon to communicate the same level of information regarding X’s ongoing treatment to each parent with such level of information to be at the treatment provider’s discretion.
11.Each parent is restrained from making derogatory comments about the other parent in the presence or hearing of X or permitting any third person to do so in the presence or hearing of X.
12.Each parent is restrained from discussing these proceedings with X.
13.The Father shall continue to reside with the paternal grandmother;
14.The Father forthwith take all necessary steps to complete the Managing Strong Emotions and Circle of Security courses, facilitated by D Counsellors.
15.The parties forthwith enrol in and complete a Parenting After Separation course (such as the Triple P parenting program) and provide certificates of completion to the Independent Children’s Lawyer and the solicitor for the other party.
16.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
17.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
18.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
19.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
20.The matter is to be listed on a date to be advised following release of the Family Report.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 December 2021
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