KAUSER & KAUSER

[2016] FCCA 3443

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUSER & KAUSER [2016] FCCA 3443

Catchwords:
FAMILY LAW – Interim Parenting – one young child – best interests – risk of harm – mental health issues – untested parenting capacity of father – limited relationship between father and child – whether time should be supervised – child to live with mother –  child to spend unsupervised time with father.

Legislation:

Family Law Act 1975, ss.4AB, 13C, 60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

Goode v Goode (2007) 36 FamLR 422

Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

SS v AH [2010] FamCAFC 13

Applicant: MR KAUSER

Respondent: MS KAUSER

File Number: PAC 4499 of 2016

Judgment of: Judge Obradovic

Hearing date: 29 November 2016

Date of Last Submission: 29 November 2016

Delivered at: Parramatta

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: Mr O'Sullivan

Solicitors for the Applicant: O'Sullivan

Counsel for the Respondent: Mr Livingstone

Solicitors for the Respondent: Rafton Family Lawyers

PENDING FURTHER ORDERS THE COURT ORDERS:

1. That the parents have equal shared parental responsibility for the child X born on (omitted) 2014.  

2. That the child shall live with the mother.

3. That the child spend time with the father as follows:

   (a)Each Tuesday and each Thursday from 3pm (or after day care) to 6pm;

   (b)Commencing 31 December 2016 each alternate Saturday and Sunday from 8am to 4pm for a period of three months from the date of these Orders and thereafter each alternate weekend from 8am Saturday to 4pm Sunday;

   (c)On 25 December 2016 from 10am to 2pm; and

   (d)On 15 April each year from 4pm to 7pm.

4. For the purpose of Order 3 above, if changeover does not occur at pre/school, the father shall collect the child from the mother’s residence at the commencement of the child’s time with him and the mother shall collect the child from the father’s residence at the conclusion of the child’s time with the father.

5. Each of the parties will keep the other informed of the following at times the child is in their care:

   (a)Any medical illnesses suffered by the child; and

   (b)Any medication that has been prescribed for the child.

6. In the event of a medical emergency concerning the child, including but not limited to serious illness, accident or hospitalisation, the party with the care of the child will immediately contact the other party.

7. The mother shall forthwith do all acts and things necessary to authorise the child’s pre-school/day care to provide all relevant information regarding the child to the father.

8. That the mother provide the father with the following:

   (a)The names and addresses of X’s treating doctors and dentists; and

   (b)The dates of parent/teacher functions, sporting carnivals and details of X’s extra-curricular activities.

9. That the mother and father are each entitled to attend any pre-school/school, sport, extra-curricular or other public event involving X.

10. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall within 14 days contact the intake officer of  Relationships Australia, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the “Keeping Kids in Mind” program offered by that organisation and subject to the assessment of suitability each party shall then:

    (a)Attend at such times, dates and places as may be advised; and

    (b)Pay such fees as may be charged;

    to participate in and complete such program.

11. The matter is listed for further directions at 11.30am on 4 April 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4499 of 2016

MR KAUSER

Applicant

And

MS KAUSER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are Reasons for Judgment in respect of an interim parenting application regarding the only child of the parties X born on (omitted) 2014.

2. By way of Initiating Application filed on 22 September 2016, the father seeks a number of interim and final parenting orders. Those are answered in the Response filed by the mother on 21 October 2016.

3. After the parties separated on 1 October 2015, the child has been living with the mother and has spent limited time with the father. Most recently, the child has been seeing the father approximately once per fortnight for three to four hours and with such time being in the presence of the mother.

4. The interim hearing of this matter occurred on 29 November 2016, just over two months after the filing of the Initiating Application. Indeed, the interim hearing was adjourned on the first return date following the father’s application.

5. The central enquiry for the Court is to determine the outcome that will be best for the child the subject of these proceedings.

6. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

7. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

8. In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

9. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

10. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

11. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

    [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

    [3] Ibid at [122]

12. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

    [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

    [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

13. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

    [6] s61DA(3)

14. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

15. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

16. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

    [9] [2016] FamCAFC 156 at [9]

The Documents relied upon at Interim Hearing

1. The father relied upon the following documents:

   a)      Initiating Application filed 22 September 2016;

   b)      Affidavit of Mr Kauser sworn 16 September 2016;

   c)      Affidavit of Mr Kauser sworn 4 November 2016;

   d)      Financial Statement of Mr Kauser sworn 4 November 2016;

   e)      Affidavit of Mr Kauser sworn 4 November 2016;

   f)      Affidavit of Ms M sworn 4 November 2016; and

   g)      Affidavit of Mr B sworn 4 November 2016.

2. The mother relied upon the following documents:

   a)      Amended Response filed 24 November 2016;

   b)      Affidavit of Ms Kauser sworn 24 November 2016; and

   c)      Financial Statement filed 24 November 2016. 

3. The following documents were tendered in the proceedings:

   a)      Exhibit 1 – Sleeve 1 - Patient record dated 26 March 2015;

   b)      Exhibit 2 – Sleeve 2 - NSW Police event numbers (omitted) and (omitted);

   c)      Exhibit 3 – Sleeve 4 – About Counselling Solutions;

   d)      Exhibit 4 – two text messages sent by the father to the mother; and

   e)      Exhibit 5 – Sleeve 1, green tab being a referral report of the mother.

Competing Proposals

1. The father seeks orders as follows:

   a)      The parties have equal shared parental responsibility for the child X born (omitted) 2014.

   b)      X live with the mother and spend time with the father as agreed and in default of agreement as follows:

   i)Each week from 3pm on Friday until 5pm on Sunday, when the father or his nominee will collect X from preschool/mother’s home at the commencement of such time, and the father will drop X to the mother’s residence at the conclusion of such time.

   c)For a period of 6 hours between 9am and 7pm on the 15^th of April, when the father or his nominee will collect X from the mother’s residence at the commencement of such time, and the mother or her nominee will collect X from the father’s residence at the conclusion of such time.

   d)From 6pm on Christmas Eve until 3pm on Christmas Day, when the father or his nominee will collect X from the mother’s residence at the commencement of such time, and the mother or her nominee will collect X from the father’s residence at the conclusion of such time.

   e)Each parent is restrained from preventing X from talking on the telephone to the other parent between 6.30pm and 7pm each day X is in that parent’s care, to be facilitated by the residential parent telephoning the non-residential parent’s landline or mobile telephone number, and the residential parent will cause X to take the telephone/Skype call with the non-residential parent in privacy.

   f)That the mother provide the father with the following:

   i)The names and addresses of X’s treating doctors and dentists;

   ii)The dates of parent/teacher functions, sporting carnivals and details of X’s extra-curricular activities.

   g)That the mother and father are each entitled to attend any preschool/school, sport, extra-curricular or other public event involving X.

   h)That the mother do all things necessary to facilitate and arrange for copies of X’s preschool/school reports to be provided to the father;

   i)The parents each are restrained by injunction from denigrating the other parent or members of the other parent’s family to X or in the presence of X or at all; and each parent is to remove X from the presence of any third party denigrating the other parent or members of the other parent’s family.

   j)The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parents’ family to X or in the presence of X.

   k)The parents are each restrained by injunction from discussing these proceedings with or in the presence of X or showing X, any document connected with these proceedings.

   l)The wife be restrained from dealing with the net proceeds of sale received by the parties from the sale of the property at Property W, New South Wales, without providing the husband with 14 days’ notice in writing of her intention to do so.  

2. The mother seeks orders as follows:

   a)      That the child X born (omitted) 2014 live with the mother.

   b) That pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child X born (omitted) 2014.

   c)      That the father have supervised time at the (omitted) Contact Centre for not more than two hours per week on days and at times as nominated by that service.

   d)      That order 12 of the Interim orders sought in the Applicant’s Initiating Application filed 22 September 2016 be and is hereby dismissed.

Issues in Dispute

1. The issues in dispute are what spend time with arrangements for the child are in his best interest and whether the child is at risk in his father’s care such that there need to be safeguards put in place in respect of any time he is to spend with his father.

2. Like many of the interim matters which come before this Court there is significant dispute about many facts, not only as to events during the parties’ relationship but also post separation.

3. The main issue in dispute appears to be the father’s mental health and anger issues – namely the mother alleges that the father has a mental health illness or otherwise mental health problems which mean that the child, if he was to spend unsupervised time with his father, would be placed at an unacceptable risk of harm. 

4. Also of relevance is the father’s parenting capacity – namely the mother alleges that the father has limited and untested parenting capacity, such that if the child was to spend unsupervised time with his father, he would be placed at an unacceptable risk of harm. 

Uncontested Relevant Facts

1. The father was born on (omitted) 1979.

2. The mother was born on (omitted) 1979.

3. The parties commenced living together in mid-late 2008.

4. The parties were married on (omitted) 2010 and separated in October 2015.

5. There is one child of the relationship, the subject child of these proceedings.

6. The father works full-time and his employer has flexible work practices.

7. The mother works part-time; at present 4 days per week.

8. The child attends day care Monday to Thursday, such day care being located in relative proximity to the mother’s workplaces.

Other Relevant Evidence

The evidence in the father’s case

1. The father asserts that after the child was born, he took a number of weeks of parental leave and that during that time that he was an involved parent.

2. After returning to work and until separation, the father asserts that he was would get up in the night to settle the child, that he would read him bed-time stories, help with feeding and bath times, change nappies, take the child to the park, play with the child and take him for walks and drives. The father also states that there would be occasions when he cared for the child on his own, such as when the mother went to the shops or when she was assisting her father in renovating a property. Apart from when he was required to travel for work, the father says that he spent all of his weeknights at home.

3. After separation, the father had difficulty in getting the mother to agree to see the child. The parties separated in October 2015, and the father says that following separation he did not see the child for a whole month.[10] The father then says that in November 2015, he only spent between 3-4 hours with the child.

   [10] This is disputed by the mother

4. Although the parties agreed to a 1 month plan at mediation, the father says the mother did not comply with that agreement, and instead of the child spending from 8am to 3pm for example on the agreed occasions, the mother insisted that the child be returned to her care straight after lunch.

5. In January 2016, the father spent some time at Taronga Zoo with the child and mother, and he says that there were a few occasions when the mother allowed him to stay overnight with her and the child.[11]

   [11] The mother disputes this. She recounts one occasion when the father did sleep in the same room as her and the child, but that this was not pursuant to an agreement, but rather contrary to it

6. The father says that he had difficulty in communicating with the mother, as she insisted on email only communication. The father annexes a number of text messages and emails to his Affidavit which show attempts by the father to spend time with the child, and putting forward various proposals for when that might occur.

7. The mother has refused to allow the father to take the child home to spend time with him there, and instead, she has only permitted time to occur in a park, play centre or some other public venue.

8. The father gives evidence of the child being happy to see him when they spend time together, and telling the father that he misses him.

9. The father states that the mother has not shared information about the child’s development with the father, and has told the father not to attend the child’s day-care centre.

10. The father says that when he does try to elicit information from the mother about the child, for example by emails, text messages or telephone calls, the mother will respond with “why are you harassing me, stop it.”

11. The father lives 25 minutes’ drive away from the mother’s home, and about 40km from the day care centre the child attends. 

12. The father does not say how far the distance between his workplace and the child’s residence and/or day care centre is, but does state that he is able to work flexibly and can leave early to ensure that he is able to care for the child.

The evidence in the mother’s case

1. The mother asserts that she was the child’s primary carer since birth, and that she continues to be his primary carer.

2. The mother states that she is “very concerned if Mr Kauser is permitted to have any unsupervised time with X.” She states that the father has had limited care of the child mainly because he has struggled to cope with one on one care. When the child cried, the mother states that the father would get very agitated and anxious as he struggled to settle the child.

3. The mother’s evidence is that since the child’s birth there have only been four occasions when the father has had care of the child unsupervised. This evidence is concerning for a number of reasons – including that it prima facie supports the proposition put forward in the father’s case that the mother is controlling and not supportive of a relationship between the child and the father. The evidence is also prima facie supportive of the mother’s argument that the father does not have the capacity to parent a young child. It is the reasons behind the father spending such limited unsupervised time with the father that will be important, in due course[12], in formulating the Court’s views about these matters which remain in dispute.

   [12] To be determined at final hearing

1. In terms of supervised time with the child, particularly post separation, the mother says that the father has exercised infrequent ad hoc time with X. She asserts that the father’s requests to spend time with the child have been infrequent since separation. The mother states “Contrary to Mr Kauser’s evidence in his affidavit… Mr Kauser did not express a desire to spend one on one time with X.”

2. Between 20 February 2016 and September 2016, the mother states that she attempted to work out an agreement with the father for him to spend supervised time with the child. When the father agreed to ‘take up the time’ the parties would generally meet up at a public location so that the father could spend “a short period of time with X and being in public I felt it would offer some safety for X and my wellbeing”.

3. The mother deposes that most of these occasions would occur at Lollipops in (omitted). The mother deposes that the father would be waiting in the carpark when she arrived with the child and that she would say to the father “please keep your distance”, “I think it’s best if you wait for us inside” and the father would respond with “you can’t tell me what do to anymore”. The mother says that she would then try to get into the centre as quickly as possible so that “X and I would be in the presence of other people”.

4. The mother says that when the father deposed in his Affidavit that he had not seen X for period of four weeks following separation, that this is simply not true – as the parties had met at McDonalds on 2 November 2015. The father alleges the parties separated on 1 October 2015. The mother alleges that they separated on 22 October 2015. On the father’s case, 2 November 2015 is slightly longer than 4 weeks after separation, on the mother’s it is not. The mother does not acknowledge this difference in the time frames as to when separation is said to have occurred, rather she infers through her evidence that the father is untruthful and/or misleading.

5. In December 2015, the mother initiated mediation with the father, despite being ‘very fearful of the process’ and feeling that she ‘could not negotiate on an even footing’.

6. A parenting agreement was reached by the parties at mediation. The mother says she felt pressured to agree. It appears that time pursuant to that agreement has in any event, not occurred.

7. Most recently, the mother received an email from the father requesting time with the child on Father’s Day. There had been agreement that the child would spend time with the father and his family, in the morning to 12 noon. Apparently the mother’s car would not start and then the child was asleep. The child spent time with the father from 12.30pm until 3pm. The mother’s evidence is silent as to why the time was so limited on this occasion, particularly given that the child was with the paternal family. The mother does however say that for a few weeks following Father’s Day the child’s behaviour was different. The child would become more distressed, but since then he has settled. The Court understands from this that the mother is inferring that the reason the child was distressed is because he spent time with the father and the paternal family on Father’s Day.

Allegations of Violence

1. Family violence is defined in s4AB of the Act. The definition states:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2. There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.

3. Of assistance are the various examples provided in s.4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.

4. The mother asserts that the father has been “verbally and psychologically abusive” towards her.

5. The mother alleges a number of specific incidents, for example[13]:

   [13] This is only a summary of the mother’s evidence and does not include the detail of all of the mother’s allegations. These are not findings of fact.

   a)That in August 2008, the father “constantly obsessed over the cleanliness and state of the home to the point where his behaviour became quite alarming”;

   b)That in October 2008, the parties had an argument relating to the cleanliness of their home, and that the father told the mother that the state of the home was unacceptable and that she was ‘a lazy fucking bitch.’ The mother alleges that the father started to come towards her and that she was “quite fearful” and that she worried that the father would physically hurt her;

   c)That on 21 February 2009, the father had drunk alcohol to excess and had projectile vomited in the car on the way home. After she helped him get into the shower, the mother told the father that she was disappointed and that she did not realise he drank so much. The father is said to have verbally abused the mother in response;

   d)That on 15 August 2009, the father became upset with the mother about the way she had behaved towards his own mother. The  father said to her that she was a terrible person, worthless, that she is fucking hopeless and that she is nothing;

   e)That in December 2009, the father demanded that the mother clean the bathroom of a hotel where the parties were staying;

   f)That on 5 August 2010, the father yelled at the mother in (omitted) Shopping Centre calling her a “worthless, fucking bitch.” This was seen and heard by a number of shoppers, and the father stormed off and the mother proceeded to drive home. She says she was worried about the father that he had stormed off angrily;

   g)That on 17 November 2010, the parties attended counselling, where the father apparently promised not to yell or swear at the mother, or tell her that she was worthless;

   h)That in December 2010, during their honeymoon, the mother alleges the father drove very fast and in an erratic manner after he became angry with her;

   i)That in February 2011, the father got angry with the mother because she was not a virgin when the two of them got together;

   j)That in June 2011, the father was again said to have been driving in an unsafe and erratic manner, and the mother was concerned because he jumped out of the car whilst the motor was still running and left the mother sitting in the car while he took off;

   k)That in September 2011, the father became angry with the mother over a ‘minor issue’ and yelled at her words “you are a fucking bitch”;

   l)That in February 2012, the father became highly agitated after he got out of the shower because the shower was not clean enough and he said to the mother that she was shit;

   m)That in October 2012, while at a friend’s wedding, the father said to the mother in front of mutual friends that she was sleeping around and that she is easy. The parties continued the argument when they got home and the father apparently became angry, proceeded to pick things up in the bedroom and throw them at the mother, who had to duck to avoid being hit;

   n)That in December 2012, the mother got the father to agree to leave the matrimonial home on Christmas Eve due to her concerns over the father’s escalating anger. When Christmas Eve came, the father refused to leave, and she was unable to get him to leave the home even temporarily;

   o)That in (omitted) 2014, the father was screaming at the mother while she was holding the parties’ newborn child in her arms, the father was yelling that the mother did not let his family hold the child. The mother started to cry, the child was also crying and the father left the room;

   p)That in July 2014, the father was yelling at the mother whilst she was holding the child. The parties were having an argument and the mother says that the argument escalated and she pleaded with the father to stop yelling at her and causing her stress, to which the father responded “stop using breast feeding and X as a tool”;

   q)That in September 2014, the father after returning home told the mother he had been involved in a physical altercation during his lunch break. The father said to the mother:

   I was on my lunch break and I went to the local subway restaurant. I was in line and a man behind me was pressuring an elderly (nationality omitted) lady to hurry with her order. I turned him and told him to take it easy because she is old. The man was pointing at me touching my face and so I punched him in the face and he hit the ground. The Cops were called and I was interviewed but I found out the man didn’t want to press charges.

   The mother then says she recalls another incident when the father punched a man in the face. This incident is said to have occurred when the father stopped a man taking off with a lady’s wallet at an ATM near the father’s work;[14]

   r)That in February 2015, the father became angry that the mother wanted to take the child to see her parents. He said to the mother “I’ll fuck you up. I’m not going to pay child support. You can’t make me leave”;

   s)That on numerous occasions leading up to separation, the father would stare blankly at the television screen and ignore her attempts to engage with him. The mother annexes a text message from the father in support, which says “I can’t believe all those nights I sat on separate couch starring at the TV…” Even without the father’s explanation about this text, it is clear on the face of the text that the father does not say he was staring at a blank TV screen as alleged by the mother and the Court finds the mother’s use of the text as misleading;

   t)That after asking the father to leave on 22 October 2015, which he did, the father continued to call and text the mother ‘constantly at all hours’. In March 2016, the mother blocked the father’s number for a few weeks; and

   u)That the father continued to drive past the mother’s home on four to five occasions per day and also driving past the mother’s family’s home, including her sister’s home.  

   [14] There were no police documents or similar evidence produced

6. The mother also alleges that she observed the father download violent pornographic material onto his mobile phone during the relationship and she is concerned if the child should be exposed to this. The mother alleges that the father has consulted multiple sex-workers, and she does not want the child exposed to this either.

7. The father denies all allegations of domestic violence, and denies the allegations surrounding downloading of violent pornography or engaging with sex workers.

8. In his Affidavit, the father addressed the allegations in the mother’s Affidavit, and gives his own account of what is said to have occurred on those occasions, as far as he recalls the dates or similar incidents.

9. While on the face of the mother’s evidence, there appear to be a large number of allegations of domestic violence against the father, these are mostly historical (in the sense that they occurred well before the child’s birth) and situational (in the sense that they occurred during the parties’ relationship which was dysfunctional).

10. The father lives with his parents who are witnesses in the father’s case. Both paternal grandparents have been made aware of the mother’s concerns. They do both say that they have never observed such behaviours in their son. However, they are prepared to intervene to protect the child if they observe any similar behaviours as described by the mother, and if necessary to call the Police. These are significant protective factors for the child.

11. The parties’ circumstances are now different than what they were when the parties were together. The Court is satisfied that on an objective view of the evidence, and upon weighing up the probabilities of the parties’ competing claims, the likely impact on the child in the event that the father might behave in the manner which the mother asserts he has behaved in the past, is not such that time between the child and father ought to be supervised.

The mother’s mental health

1. The mother, who upon seeing her General Practitioner in early 2015, was referred to a psychologist pursuant to a mental health care plan. The mental health plan is not in evidence, nor is there any evidence from the mother’s treating psychologist pursuant to that mental health plan of what the mother was referred for, what she was treated for or what her diagnosis and prognosis might be.

2. The mother asserts she was referred to a domestic violence community case worker. The mother says she continued to consult with the psychologist in the hope that she could gain the emotional strength to leave the relationship.

3. Apparently, when the mother said to the father during this period that she was unhappy, the father would respond with “I’m suicidal”. The mother then became concerned that the father may try to harm himself if she left him at that time.

4. The father does not raise any issues of capacity as a result of the mother’s evidence regarding or arising out of her own mental health care plan.

The Father’s Mental Health

1. The mother gives some limited evidence in support of her concerns for the father’s mental health[15]. She asserts as follows:

   a)That in October 2014, the mother discussed with the father her concerns about his behaviour and the parties’ relationship. During this conversation, the father said “I am suicidal. I am not coping well”;

   b)That in September 2014, the father said to the mother “I went to see a psychologist because I am feeling suicidal and having dark thoughts”;

   c)That in about November 2015, the father messaged the mother about seeing a psychologist. When she asked him if this was a different psychologist to the one he was seeing when he was feeling suicidal, the father said he was seeing someone different.

   d)That in December 2015, the mother requested the father to have a psychological assessment on the basis that she was concerned about the father driving erratically, particularly if he had the child in the car;[16]

   e)That in February 2016 the mother became concerned again about the father’s mental health and he indicated to the mother that he was going to see a psychologist; [17]

   f)That when the mother requested in February 2016 to be provided with specific details of the psychologist which the father had ‘previously consulted’ the father responded with “No, what will this prove?” and “If I had admitted earlier that I had not seen a Psychologist then you would think everything else is a lie”.

   [15] In addition to what is noted at paragraph 69 above

   [16] No evidence is given of any incident where the father is alleged to have been driving ‘erratically’ with the child in the car

   [17] No evidence is given of any fact which might have given rise to the ‘concern’ for example, any observations of the father’s behaviour

2. The father denies that he was ever suicidal.

3. The father says that at the time of the breakup of the parties’ marriage, he was heartbroken and experiencing a lot of personal grief as a result.

4. There is no independent evidence that the father was ever suicidal.

The evidence of Mr P, Psychologist

1. The father in his case tendered a report from his treating specialist dated 4 November 2016; a report which was strenuously objected to by counsel for the mother.

2. The father initially attended the psychologist’s practice on 23 January 2016, and was seen by Mr P on three occasions of one hour duration each. The father then recommenced counselling on 21 October 2016, and was seen for a further three sessions. In all, from 23 January 2016 to the date of the report the father had attended upon the psychologist six times. Mr P assessed the father as a genuine person who was motivated[18] to attend all sessions.

   [18] That motivation appearing to be as a means of resolving issues between himself and the mother in the hope that the parents can have an amicable relationship mainly to benefit the child.

3. The report of Mr P, while is in some respects problematic[19], does provide a number of relevant opinions, based on the psychologist’s observations of the father.

   [19] In particular given that there is no testing of evidence, the facts upon which the report relies are to a large extent untested

4. The report relevantly[20] reads as follows:

   [20] The reports contains a number of other opinions, which I do not regard as relevant. For example, the report opines that the father has the ability to care and adequately supervise his son for extended periods of time, unsupervised. This is not a relevant opinion, or rather, it does not appear to be an opinion based on any relevant expertise. The relevant opinion of Mr P can only be based on his expertise as a psychologist. 

   …[the father] has informed me that his wife has now sworn on her affidavit that her husband has suicidal tendencies and as a result  she how fears for … the wellbeing of their child.

   …

   … at our most recent session… I observed that Mr Kauser was grieving as a result of his marriage breakdown. He was not in any way depressed, but saddened by the recent events of only having limited access to his young son. It is my considered opinion that throughout my initial and most recent sessions with Mr Kauser that he is not in any way an angry person, nor does he display any observable symptoms of depression or suicidal ideation.

   …

   Ms Kauser has made some serious allegations about her husband and his behaviour, namely his angry nature and suicidal ideation. However, after my most recent sessions with Mr Kauser I am of the professional opinion that he does not pose a threat to his wife or young son. Furthermore, Mr Kauser does not display any signs or symptoms that would indicate that he is in any way suicidal.

   …

   It is my professional opinion that Mr Kauser does not display any symptoms that would allow me to conclude that he presents with mental health issues, nor does he meet any criteria for any mental disorder.

5. The expert evidence in the father’s case is that the father at present does not display any signs or symptoms that would indicate that he is in any way suicidal.

Section 60CC Factors

Views of the child

1. The child is just over two and a half years old, and his views which are in any event not known, would be given no weight due to his young age.

Nature of the children’s relationships with their parents and significant others

1. The father’s evidence is that the child has a positive relationship with him, albeit that the relationship has not been able to properly develop due to the limited and restricted way in which he has been able to spend time with the child.

2. The mother submits that the father has had very limited time with the child, and for that reason, amongst others, there should be an order that time between the child and the father be supervised.

3. This is somewhat of a self-serving argument in circumstances where the mother has only permitted the father to spend limited time with the child since separation.

4. There is no expert evidence before the Court about either of the parent’s parenting capacity. Before the Court are differing accounts of the care each of the parents has provided to the child during the relationship. Of course that evidence is largely in dispute and remains untested.

5. There is no evidence of the child’s relationship with significant others. It is not clear why the child’s relationship with the paternal family has been limited since separation. There does not appear to be any objective reason as to why this should be so. 

Parent’s involvement with decision making, spending time and communicating with the children and Maintenance of the children

1. The Court finds that the father has sought to be an involved parent, and has been insistent upon spending time with the child since separation. Those requests for time have not always been answered, and indeed, the Court finds that it is the mother who has made all of the decisions as to what time the child was to spend with the father.

1. There appears to have been a formal Child Support Agency assessment conducted in about April 2016, and since that time the father has been paying child support in accordance with that assessment.

2. The mother says that prior to April 2016 she used some of the net proceeds of sale for the child’s care. The annexures to the father’s Affidavit seem to suggest that the father was paying or had agreed to pay half of his wages to the mother for care of the child. These are obviously matters to be determined if relevant at final hearing, given the factual dispute.

Likely effect of change and practical difficulty of spending time

1. The orders which the father seeks are for the child to spend time with him in essence each week from 3pm on Friday to 5pm on Sunday. Such an order would see a significant change to the child’s circumstances, where he attends day care four days per week and spends the rest of his time with the mother.

2. The orders proposed by the mother would see little change in the child’s routine.

3. The parents both live in suburban Sydney.

4. The mother lives in the former matrimonial home in (omitted) with the child.

5. The father lives with the paternal grandparents in (omitted). They of course, provided supporting Affidavits in the father’s case.

6. Based on the evidence of where the parties live and where the child attends day care, the Court finds that there is no practical difficulty with the child spending time with either of his parents.

Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents

1. The Court finds that the mother has demonstrated a poor attitude to parenting by limiting the child’s time with the father since separation.

2. Even with her subjective views of the father, there is no basis for why the child has had his relationship with the father curtailed in this manner by the mother. The mother gives limited evidence in support of her argument that the child is at risk of physical or psychological harm while in the father’s care. The mother says that the father could not cope and was agitated when the baby cried – this was in a period when the parties had not yet separated; and that the father had said that he was ‘suicidal’; once again, this was during the period when the parties had not yet separated[21]. The mother’s proposal for supervised time for no more than two hours per week is a proposal which provides for very limited interactions between the father and the child.

   [21] The Court notes the mother’s allegations of family violence already referred to, and that the mother asserts the father yelled at her while she was holding the baby

3. Unless there are specific orders for the child to spend time with the father, thus giving the child the opportunity of developing and growing his relationship with his father further, the Court is not satisfied on the mother’s evidence that she would foster and encourage such a relationship into the future.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child's parents; if the children are an Aboriginal

1. As noted earlier, both of the parties work.

2. The father works full-time. He is employed as (occupation omitted) and enjoys his work.

3. The mother works as an (occupation omitted) four days per week.

4. The father is of (nationality omitted) background. The father does not give any evidence of any events of a cultural or religious significance which the Court might have regard to.

5. The mother’s background is not the subject of any evidence.

Family Violence

1. The mother makes a number of allegations of family violence against the father, which have been dealt with elsewhere in these Reasons.

Institution of further proceedings and other relevant matters

1. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

2. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of his parents given his very young age and limited relationship with his father to date, and the mother’s assertion that there is a need to protect the child from harm by supervising the child’s time with the father.

Primary Considerations

1. Both parents have something to offer the child. They both, on their own evidence, appear to be loving, doting parents, who seek to be involved in the child’s future. On that basis, The Court finds that there is a benefit to the child having a meaningful relationship with both of his parents.

2. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations.

3. Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the child is to live, and what time, if any, they are to spend with the other parent.[22]

   [22] M & M (1988) 166 CLR 69 at 77

4. The mother’s evidence, even at its highest, the Court finds, does not support the requisite standard[23], a finding that there is an unacceptable risk of harm to the child if he was to spend unsupervised time with the father. When considering the mother’s evidence in light of the disputed facts, the weight of the mother’s argument is even less.

   [23] Being on the balance of probabilities and particularly in light of s140(2) Evidence Act

5. The Court is however able to make the following findings of fact:

   a)      There is no diagnosis of the father relating to any mental health illness; and

   b)      The only expert evidence dealing with the father’s mental health opines that the father does not suffer from any mental health problems at present.

6. The fact that the father lives with his parents is also a protective factor for the child.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[24] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.

   [24] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[25]

   [25] s61DA(3)

3. The parents do not have a good working relationship at present. There appears to be very little trust between them, but not to the extent that any long term decisions in relation to the child would not be capable of being made by the parties jointly.

4. At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. As such, an order for equal shared parental responsibility is made.

5. The Court hopes that with appropriate intervention the difficulties in the parties’ relationship will improve, hence the Order pursuant to s.13C. The Court is concerned that if an order for sole parental responsibility was made at this early stage in the proceedings it would act as a stimulus for a further break-down in the co-parenting relationship.

6. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[26] 

   [26] s61DB

7. Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:

   (3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a)  how far apart the parents live from each other; and

   (b)  the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)  the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)  the impact that an arrangement of that kind would have on the child; and

   (e)  such other matters as the court considers relevant.

8. Having regard to the above criteria and the various considerations discussed throughout these Reasons, equal time is not supported by the facts in this matter, but significant and substantial time within the meaning of s65DAA(3) is.

In Summary

1. The child is two years and eight months old as at the date of these Reasons. He lives with his mother and has done so for most of his young life.

2. Since the parties’ separation which occurred more than 12 months ago, when the child was approximately 18 months old, the child has spent limited time with the father, and most of that time has been in the presence of the mother.

3. The child will benefit from a meaningful relationship with both of his parents. He already has a close and loving relationship with his mother. He has not been offered the opportunity to develop a similar relationship with his father. Absent any unacceptable risk of harm, there is no reason why the child ought not be given the opportunity of having such a meaningful relationship with his father.

4. Following the child’s birth, the parties lived in the same household, and the father had some involvement in the child’s early care, the extent of which is in dispute. However, post separation, the father has spent limited time with the child, with such time being on an ad hoc basis.

5. The parties cannot reach agreement about future parenting arrangement for the child. Indeed, they could not reach agreement about what time the father was to be spending with the child, culminating in the application presently before the Court.

6. It is important to reflect on the principles[27] underlying the objects of Part VII of the Act. They are, except when it is or would be contrary to a child’s best interest, as follows:

   [27] S60B

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

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

7. While there have been a number of months since the child has spent time with the father, there is little evidence to seriously suggest that prior to this time he did not have a positive relationship with his father. The mother’s evidence about these matters has to be carefully considered, particularly as it is diametrically opposed to the father’s evidence.[28]

   [28] Noting the authorities referred to in paragraph 16 of these Reasons

8. The Court is not satisfied on the evidence before it, that the mother has established that there is an unacceptable risk of harm to the child such that time between child and father ought to be supervised.

9. The child should be afforded the opportunity to spend meaningful time with his father in the absence of the mother, such that their relationship may be given the proper room to grow and flourish.

10. The father’s proposal sees the child spending significantly less time with the mother than he does at present given that he is in day-care four days per week and that the father wants the child to be with him every single weekend; and the mother’s proposal sees the child spending little to no meaningful time with the father. Neither of the two proposals put before the Court is in the child’s best interest.

11. There is no probative evidence to suggest that the child will not be able to cope with being away from the mother who is his primary carer, for the periods of time which are provided for in these orders. There is very little, if any, evidence[29] to suggest that overnight time with the father in the relatively near future is contraindicated.

    [29] The mother’s evidence surrounding her concerns is noted and has been taken into consideration by the Court in coming to a decision about the child’s best interests

12. It is only due to the fact that the child has not spent meaningful time with the father for months, that the Court considers it to be in the child’s best interest for there to be a period of day only time between the father and child such as to give the child a better opportunity of knowing his father and the paternal family, while still maintaining the secure attachment to his mother during the nights. In other words, it is a matter of taking a more cautious approach than otherwise may be warranted.

13. In respect of overnight time, the Court finds that it is in the child’s best interest for him to spend overnight time with the father each alternate weekend after a period of day only time.

14. In addition to alternate weekends, the child is to spend time with the father during the week.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 22 December 2016